Dr. P.S. Logambal vs Devi

ORDER

None is present on behalf of the petitioner even in the second round. It is seen from the record that one learned counsel for the petitioner was present on 21.1.2019 when the Presiding Member was on leave. Before that on 19.11.2018 none was present on behalf of the petitioner. On 19.11.2018 the following order was passed:

"Dated : 19th November, 2018

ORDER

None is present on behalf of the petitioner even in the second round.

Learned counsel for the respondent states that the petitioner has not filed the documents, though more than one year has passed . They are not properly pursuing the petition and the same may be dismissed for non-prosecution.

Accordingly, last opportunity is given to the petitioner to argue the matter on the next date, otherwise, the matter will be heard ex parte and decided. The opportunity to file the documents by the petitioner stands closed.

List the matter on 21.1.2019 for final hearing at admission stage."

Even today none is present on behalf of the petitioner. As the last opportunity was already granted to the petitioner to argue the matter, no further time can be granted to the petitioner for the same.

Accordingly, learned counsel for the respondent was heard.

Learned counsel for the respondent states that this is a case of medical negligence in caesarean operation wherein the baby was born with fractured limb. The complaint was filed before the District Forum which was contested by the OP, however, the District Forum after considering all the aspects partly allowed the complaint and directed the OP to pay compensation of Rs.4 lakhs alongwith Rs.2,000/- as cost of litigation.

Aggrieved with the order of the District Forum, the petitioner/OP preferred appeal before the State Commission bearing FA No.49/2012. The State Commission vide its order dated 8.10.2014 partly allowed the appeal and reduced the compensation from Rs.4 lakhs to Rs.3 lakhs.

The petitioner has preferred revision petition against the order of the State Commission dated 8.10.2014.

The learned counsel for the respondent further states that the complainant has to spent large amount of money in the treatment and upbringing of the child who is disabled and the compensation of Rs.3 lakhs is quite meagre. However, complainant has not filed any revision against the order of the State Commission as the complainant is interested in final settlement of the case. Learned counsel states that the petitioner is not seriously contesting this case as would be evident from the fact that none is present on behalf of the petitioner today and none was also present on behalf of the petitioner on 19.11.2018. It is prayed that the revision petition may be dismissed.

Learned counsel argued that this revision petition has been filed with delay of 152 days as reported by the Registry. An application for condonation of delay has been filed. It has been stated in the application for condonation of delay that she was suffering from the illness from November, 2014 till June, 2015 and then she went to USA to meet her son. Illness may be considered as sufficient cause but without attending to the litigation, going to USA cannot be considered as sufficient cause. It is further stated that in grounds of revision petition, no legal issue has been raised which is to be decided at the stage of revision petition. Moreover, the State Commission has observed the following:

"From these details, it is very clear that male baby was extracted with difficulty even in LSCS procedure as there was reduced limb and even though the baby is aid to be dysmorphic even as per the scan report Ex A1 and as far as the fracture is concerned, it was recorded as deformity on limb. The left shoulder suspected fractured left humerus under Ex A3 and from these details they themselves recorded as "suspected fracture" on the left humerus and it was also recorded the baby was extracted with difficulty and LSCS was adopted for delivery the opposite party must have more careful in taking out of the baby and when suspected for fracture in the left humerus she should have given proper advise for taking immediate treatment for the same as it is seen all limbs are said to be contracture and Dr. A. Selva who was examined as RW-1 advised for conservative management and it was recorded the deformity as dysmorphism was diagnosed by scan on 19/04 at Karur and so when the opposite party was already having known about the dysmorphic from the scan report Ex A1, she must have more careful in attending the delivery by way of LSCS and even in such delivery took the baby was extracted with difficulty with fracture on the left humerus nothing about the same and then the child doctor who was examined as RW-1 casually answered in the deposition in cross-examination by stating that there was no need for any treatment at that stage and there may be some possibilities of swelling on the fractured limb without taking care for the same seems to have deposed with biased manner in favour of the opposite party and moreover the opposite party has not turned up to explain the circumstances before the District Forum for deposing as a witness for the reasons best known to her."

Though none is present on behalf of the petitioner, however their memo of appeal has been perused. It is mentioned in the revision petition that the patient was brought in an emergency condition for delivery when the membrane was ruptured. In this situation, it was the duty of the doctor to save the patient and therefore, the caesarean operation was performed in an emergency. It was a case where either baby could be saved or the mother could be saved. However, efforts were made to save both. There is no proof that the injury was done during the caesarean operation. The fact is that this type of deformities are congenital in nature and they take shape before the birth itself. In these circumstances, no liability can be fastened on the operating doctor who has taken all the precautions to perform the operation and to save the mother and the child. It has been alleged that the State Commission has not considered these aspects and has gone with the views and findings of the District Forum, though the amount of compensation has been reduced from Rs.4 lakhs to Rs.3 lakhs. The order of the fora below may be set aside as there is no negligence on the part of the doctor.

I have carefully considered the arguments advanced by the learned counsel for the respondent and have also taken into consideration the grounds as mentioned in the revision petition.

First of all, it is seen that there is a huge delay of 152 days in filing the present revision petition. The following reasons have been given in the application for condonation of delay :

"6. That the petitioner herein aged more than 70 years was and is undergoing treatment at Apollo Hospital, Chennai, under Dr. Jose Easow, Consultant Oncologis. She was diagnosed with Essential Thrombocytosis and was under regular chemotherapy from November, 2014 to June, 2015. True photocopy of the discharge summary of diagnosis of Essential Thrombocytosis of November, 2014 is annexed herewith.

That further the petitioner herein had to go to U.S.A. to meet her son, due to family problem from 4.7.2015 to 17.8.2015. True photocopy of the passport issued in the name of petitioner which bears the immigration seal from 4.7.2015 to 17.8.2015 is annexed herewith.

That the petitioner caught in the loom of being patent suffering from terminal illness on the one hand and family problems, and above all her age and distance has hampered her to present this petition well within the limitation period."

I agree with the contention of the learned counsel for the respondent that the illness can be considered as "sufficient cause" but going to USA to meet her son without attending to her legal requirement cannot be considered to be a "sufficient cause" as there was already a huge delay due to her illness in filing the present revision petition. Hon'ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed the following :

"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras".

Hon'ble Supreme Court in R.B. RamlingamVs. R.B. Bhavaneshwari, 2009 (2) Scale 108, has observed;

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."

This Commission in Branch Manager, Shriram Transport Finance Company Ltd. vs. Mukeer Ahmed Shiddhiqui, 2015 SCC OnLine NCDRC 3375 has observed the following:

"18. Full Bench of this Commission in "PNB Metlife India Insurance Company Ltd. Vs. Asha Agarwal, II(2015) CPJ 666(NC)" has observed;

"6. It is trite that discretion to condone delay has to be exercised judiciously, based on facts and circumstances of each case. 'Sufficient cause' cannot be construed liberally if negligence, inaction or lack of bona fides are attributable to the party, praying for exercise of such discretion in its favour. It is equally well settled that when a statute provides for a particular period of limitation, it has to be applied with all its rigor. An unlimited limitation leads to a sense of uncertainty and, therefore, limitation prevents deprivation of what one may have acquired. xxxxxxxxxxxxxxxx."

The above authoritative judgments are fully applicable in the facts and circumstances of the present case as no effort was made by the complainant to file the appeal in time. Clearly the negligence, inaction and lack of bona fides are imputable to the petitioner in the present case and therefore, I do not find any sufficient reason to condone the delay in filing the present appeal. Consequently, the application for condonation of delay is dismissed.

The fora below have given the concurrent finding of facts and the facts cannot be reassessed by this Commission in the revision petition against the concurrent findings of facts given by the fora below as held by the Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654 ; wherein following has been observed:

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

The State Commission has concurred with the order of the District Forum so far as the finding of deficiency on the part of petitioner is concerned which is clear from the above observation of the State Commission. Accordingly, this Commission finds it difficult to interfere with the reasoned order passed by the State Commission wherein the compensation awarded by the District Forum has already been reduced from Rs.4 lakhs to Rs.3 lakhs.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 08.10.2014 passed by the State Commission which calls for any interference from this Commission even if the limitation is not considered. Thus, the R.P. No. 2582 of 2015 is dismissed on the ground of limitation as well as on merits.