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Judgment
This appeal has been filed under Section 19 of the Consumer Protection Act, 1986 against the impugned Order dated 07.11.2017 passed by the State Commission whereby the complaint filed by the complainant was dismissed as being barred by limitation:
"17. With the aforesaid observation the complaint is bound to be dismissed as being barred by limitation. The same is accordingly dismissed."
Heard the appellant - complainant in person and learned counsel for the respondents no. 1 and 2 - opposite parties no. 1 and 2 (treating physiotherapist / doctor).
Learned counsel for opposite parties no. 1 and 2 submitted that the complaint was filed in the State Commission with delay, and no application was filed by the complainant for condonation of delay. The cause of action arose on 15.02.2007, and the complaint was filed on 25.11.2009. The delay was beyond the two years from the cause of action stipulated in section 24A of the Act 1986.
The complainant narrated her chronology of events as below:
The complainant approached opposite party no. 2 / physiotherapist on 15.02.2007 for lower backache and took treatment till 19.02.2007. Opposite party no. 2 / physiotherapist advised the complainant to take pain killers till 24.02.2007.
On 27.02.2007 the complainant visited an Orthopaedician in Safdarjung Hospital, New Delhi who said that her hip muscles were torn due to excessive and wrong physiotherapy performed on her. The OPD Record dated 27.04.2007 showed "Lumbo sacral sprain aggravated by Physiotherapy", and it noted some nerve damage in the MRI.
She visited the opposite party no. 1 / neurologist on 10.05.2007, who, while examining the complainant, put a lot of pressure on the complainant's lower back and hip region. She alleges that due to all this her condition worsened.
Thereafter she took treatment from Indian Spinal Injury Centre from 13.06.2007 to 07.07.2007. She took treatment from other places also.
And she had to finally resign from her job in 2008 due to her medical condition caused thus.
The complainant filed a complaint before this Commission, the National Commission, on 20.07.2009 (CC No. 107 of 2009), which was dismissed as withdrawn at admission stage on count of pecuniary jurisdiction.
Thereafter, she filed a complaint (CC No. 310 of 2009) before the State Commission on 25.11.2009.
The State Commission, in final hearing, dismissed the complaint on the ground of limitation.
We note that the complainant took treatment for lower back pain from opposite parties no. 1 and no. 2. She last visited opposite party no. 1 on 10.05.2007. She alleges medical negligence and deficiency in service on the part of opposite party no. 1 / physiotherapist and opposite party no. 2 / neurologist. Thereafter she consulted a specialist in Indian Spinal Injury Centre from 13.06.2007 to 07.07.2007, but did not get relief from her pain.
We also note that in the first instance the complainant filed a complaint before the National Commission on 20.07.2009, meaning thereby that there was delay of 71 days beyond two years from 10.05.2007 when she last visited opposite party no. 1 / neurologist, and a delay of 13 days beyond two years from 07.07.2007 when she last visited a specialist in Indian Spinal Injury Centre. There was delay of 71 days from two years of 10.05.2007, and 13 days from two years of 07.07.2007. The complaint was dismissed as withdrawn by the National Commission on 24.07.2009 on the count of pecuniary jurisdiction. Thereafter the complainant filed a fresh complaint before the State Commission on 25.11.2009, that is, the complainant thereafter took 124 days (about four months) to file a fresh complaint before the State Commission.
We further note that the episode of alleged medical negligence / deficiency in service relates to 15.02.2007 to 10.05.2007, the case was filed in the State Commission on 25.11.2009, and the final arguments were heard on 25.10.2017. The proceedings in the consumer complaint in the State Commission took about 8 years to reach final arguments, the pleadings and evidence were complete, and the case was dismissed on limitation at the stage of final arguments.
This is a case of alleged medical negligence. A young software engineer alleges that she had to resign her job due to the medical condition caused by the alleged medical negligence. The proceedings before State Commission consumed about 8 years. The pleadings and evidence were complete. The complaint was dismissed on limitation on 07.11.2017 when the case was at the stage of final arguments. The preliminary issue of limitation could have been dealt with at the initial stage itself.
Considering the facts and specificities of this case, but without in any manner commenting on the merit of the case, we find it appropriate and albeit necessary to condone the whole aspect of delay, and to set aside the impugned Order dated 07.11.2017 of the State Commission. The complaint is restored to its original number and extant status in the State Commission. The State Commission may kindly hear final arguments and decide the case on merit. The State Commission is also requested to kindly decide the matter expeditiously, preferably within three months.
Both the parties are directed to appear on 07.02.2019 before the State Commission.