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Judgment
We heard learned counsel for the appellants - opposite parties no. 1 and no. 2 (hospital and one doctor) and learned counsel for the respondents no. 1 and no. 2 - complainants no. 1 and no. 2, and perused the material on record.
None is present for the respondent no. 3 - opposite party no. 3 (another doctor).
This is a case of alleged medical negligence, which resulted in the death of the patient.
The complainants are the husband and minor daughter (through her father) of the deceased patient.
Consumer complaint no. 161 of 2007 was filed before the State Commission by the complainants. The State Commission vide its impugned Order dated 01.06.2010 allowed the complaint ex parte against the opposite parties no. 1 to no. 3 (hospital and two doctors).
This first appeal has been filed with delay of 2472 days by the opposite parties no. 1 and no. 2 (hospital and one doctor).
The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). The normative ideal period for disposing of an appeal is 90 days (section 19 A of the Act). The period of limitation to file appeal is 30 days (section 19 of the Act). This appeal has been filed with (further) delay of 2472 days.
The stated reasons for delay in filing the appeal, as mentioned in the application for condonation of delay, are as below:
That the appellant has filed the present appeal against the ex-parte order dated 1.10.2010 passed by the Delhi State Commission in Complaint Case No. 161/2007, which is pending before this Hon'ble Commission and fixed for 5th May, 2017 for admission hearing.
That copy of the ex-parte order of the trial commission was received by the appellant on 10th March, 2017 along-with the execution petition. The appellant filed the present appeal before this Hon'ble Commission on 7thApril, 2017 i.e. within the period of limitation. As per the Office Report there was some delay in filing of the present appeal.
In the interest of justice, if there is any delay in filing of the present appeal the same may be condoned.
It is, therefore, prayed to this Hon'ble Commission that delay, if any, in filing of the present appeal may kindly be condoned with such other and further relief which this Hon'ble Commission deems fit and necessary may also be passed.
(application for condonation of delay)
(emphasis supplied by us)
We may also quote para 7 of the State Commission's Order for reference:
The OP's were sent notice but despite registered notice none of the OP's turned up and service of notice to the OPs was presumed. However, OPs were given another opportunity to file their reply but they failed to do soand the case proceeded ex-parte against the OPs. The complainant filed evidence by way of an affidavit and thereafter some one claiming to be the counsel for OPs appeared before the Commission on 3 consecutive dates but he neither moved any application for setting aside the exparte order nor filed any reply. On the date of final arguments again none appeared for the respondents.
(para 7 of the State Commission's Order)
(emphasis supplied by us)
It is evident that, first, the opposite parties did not profess their defence before the State Commission, they showed a casual anyhow attitude to the adjudication before the forum of original jurisdiction, and, then, filed the instant first appeal only on execution proceedings being initiated.
The stated reasons for delay, as reproduced, verbatim, in their entirety, in para 5 above, (again) point towards a casual anyhow attitude to the law of limitation (also), they have a ring of untruth, they are illogical and absurd in explaining convincingly and cogently the delay of 2472 days in filing the appeal.
9 Sufficient cause to explain the delay is not visible.
We are but of the opinion that this being a case of alleged medical negligence, resulting in the death of the patient, it should, as far as (lawfully) feasible, be comprehensively and holistically examined on merit, in the forum of original jurisdiction (State Commission), with the affording of the due opportunity to all the parties involved to adduce their evidence / defence, and should in addition also be speedily disposed of.
On the other hand, we but also note that the incident of medical negligence occurred in 2007, the complaint case was filed before the State Commission in 2007, the opposite parties no. 1 to no. 3 (hospital and two doctors) did not profess their case before the State Commission despite service through registered notice and despite someone claiming to be their counsel appearing before the State Commission on three consecutive dates, the State Commission decided the case in 2010, the first appeal was filed before this Commission in 2017, it was filed with delay of 2472 days, it was filed only after execution proceedings were initiated, sufficient cause to explain the delay is not visible, and we are now in 2019.
To condone the delay in filing the first appeal, and to provide one more opportunity to the opposite parties no. 1 and no. 2 before the State Commission, to be present and to profess their case before the State Commission, in our considered view, in the facts and specificities of the case, a cost of Rs.2,00,000/- (rupees two lakh), to be paid by the opposite party no. 1 (hospital), and a cost of Rs.1,00,000/- (rupees one lakh) to be paid by the opposite party no. 2 (one doctor), to the complainant no. 1 (husband of the deceased patient), will be just and appropriate. The said cost of Rs. 2 lakh and Rs. 1 lakh respectively shall be paid by way of 'payee's only' demand draft/s within eight weeks from today. It shall be the responsibility of the opposite parties no. 1 and no. 2 to send responsible functionary/ies to courteously and politely hand over the demand draft/s of Rs. 2 lakh and Rs. 1 lakh respectively to the complainant no. 1 at reasonable time with his prior permission at his residence or place of work within the said period of eight weeks from today.
It goes without saying that if the stipulated cost is not paid in the stipulated period to the complainant no. 1, this appeal shall stand dismissed.
We may add that the opposite party no. 3 (another doctor), who has not filed first appeal before this Commission, and is the respondent no. 3 in the instant first appeal, can, if he so wishes, avail one more opportunity before the State Commission, to be present and to profess his case before the State Commission, subject to cost of Rs.1,00,000/- (rupees one lakh) to be paid to the complainant no. 1 (husband of the deceased patient). The said cost of Rs.1 lakh shall be paid by way of 'payee's only' demand draft/s within eight weeks from today. It shall be the responsibility of the opposite parties no. 3 to send a responsible functionary to courteously and politely hand over the demand draft/s of Rs. 1 lakh to the complainant no. 1 at reasonable time with his prior permission at his residence or place of work (if any) within the said period of eight weeks from today.
In addition, it is further directed that the opposite parties no. 1 and 2 (hospital and one doctor), as also the opposite party no. 3 (another doctor) if he avails of the opportunity provided vide para 14 above, shall deposit, individually, jointly and severally, the entire decretal amount as awarded by the State Commission vide its impugned Order dated 01.06.2010 before the State Commission, prior to the next date of hearing (hereinafter being fixed in para 19 of this Order), after adjusting the amount if any deposited earlier with the State Commission, as a condition precedent to initiate proceedings afresh before the State Commission.
The opposite parties no. 1 and 2 (hospital and one doctor) are directed to bring paras 14 and 15 to the notice of the opposite party no. 3 (another doctor), in time, i.e. reasonably before the expiry of the respective stipulated periods of paying cost and making deposit.
Subject to the afore-mentioned conditions being met, and proceedings being (then) initiated afresh before the State Commission, we may observe that an allegation of the complainants is that the standard protocol for safe blood transfusion to the patient was not followed, it was a case of mismatched blood transfusion leading to laryngeal - pulmonary oedema and asphyxial death of the patient. In this regard, we note that the complainants have not made the concerned blood bank a party. In our considered view, for holistic and comprehensive adjudication of the matter, it is appropriate that the concerned blood bank be made a party in a complaint of such nature. Accordingly, liberty is granted to the complainants to implead the concerned blood bank as an opposite party and to file an amended complaint (if they so wish) and to file an amended array of the parties with the concerned blood bank as opposite party no. 4 before the State Commission prior to the next date of hearing (hereinafter being fixed in para 19 of this Order). In the contingency that the complainants file an amended complaint (if they so wish) and file an amended array of the parties, the State Commission shall adjudicate the case accordingly. We make it explicit that if the complainants do not avail of the liberty granted, the State Commission shall adjudicate on their existing complaint as per the existing array of the parties.
Subject to the afore-mentioned conditions and directions, the impugned Order dated 01.06.2010 of the State Commission is set-aside and the case is remanded back to the State Commission for adjudication afresh.
All parties are directed to appear before the State Commission on 27.08.2019.
Let a copy each of this Order be sent to the State Commission and to all parties (including the respondent no. 3) within three days by the Registry.
'Dasti', in addition, to all parties.