Nandalal Adhikari vs Dr. Dipak Kumar Bhattacharya & Anr

This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 06.07.2017 of the State Commission in appeal no. 594 of 2016 arising out of the Order dated 23.05.2007 of the District Commission in complaint no. 131 of 2003.

We have heard the learned counsel for the revisionist (the ‘complainant’) and for the respondents (the ‘opposite parties’) and have perused the record including inter alia the Order dated 23.05.2007 of the District Commission, the impugned Order dated 06.07.2017 of the State Commission and the petition.

The revision has been filed with reported delay of 123 days. Learned counsel for the complainant submits that the complainant is a poor farmer, he is conducting his case pro bono. The advocate who conducted his case before the State Commission also did it pro bono, some natural time was taken in collecting the relevant papers by liaising from New Delhi with the complainant as well as the advocate in West Bengal. He requests that the delay be condoned.

Learned counsel for the opposite parties opposes.

In the interest of justice, inter alia having regard to the submissions made by the learned counsel for the complainant, to rather decide the matter on merit than to dismiss it on the threshold of limitation, the delay in filing the revision is condoned.

Briefly, the complainant’s wife aged about 29 years was admitted in the opposite party no. 2 hospital on 19.12.2002 for operation of gall bladder stone. The operation was conducted on 20.12.2002 by the opposite party no. 1 doctor. During recovery while still admitted in the hospital the patient expired on 21.12.2002. The complainant filed a complaint before the District Commission in 2003 alleging medical negligence and deficiency on the part of the opposite party no. 1 doctor and the opposite party no. 2 hospital. The District Commission dismissed the complaint on 23.05.2007. The complainant filed an appeal before the State Commission on 05.07.2016 with delay of 3328 days. The State Commission dismissed the appeal as barred by limitation. Hence this revision.

Learned counsel for the complainant makes his submissions. He draws attention to paras 2, 2(a) and 3 of the complaint, which are being reproduced for reference:

That my wife Belarani Adhikari was admitted to the Purba Midnapur District Hospital at Tamluk on 9.12.2002 for operation of her “Galbladar Stone” and the said operation was done by Dr. Dipak Bhattacharjee on 20.12.2002 and after operation my wife was good news and the operation was successful but unfortunately Belarani Adhikari died on 21.12.2002 at Dist. Hospital at Tamluk due to purely negligence of Doctor that is Dr. Dipak Bhattacharjee the respondent/opposite parties and also careless duty of hospital staff because my wife died by suffocation.

2(a)  That the wife of the Complainant was admitted at the Hospital on 19.12.2002 and her operation of “Gall Bladder Stone” to be done on 20.12.2002 by OP No. 1 who reported that the operation to have been successful and the wife of complainant remained totally under the care and caution of the Hospital Authority the OP No. 2 and its staff including Nursing Staff, Care taker, other staff etc. and while to be under their care & custody Smt. Bela Rani Adhikary died on 21.12.2002 for the reason best known to the opposite parties & the petitioner & / or the deceased has no part to play and/or contribution for such death.

That the Hospital Authority also could not establish and even never claimed that such death of Smt. Bela Rani Adhikary to be a normal or natural one and as such had to Post Mortem the dead body of Smt. Bela Rani Adhikari.

That the Respondent/Opposite parties is a qualified Surgeon Doctor-posted at Dist. Hospital at Tamluk but after operation he has neglect my patient and on that basis the cause of death is due to suffocation of patient but it is not for operation matter.

Learned counsel submits that a simple operation of gall bladder stone resulted in the death of the youthful patient of only about 29 years due to the negligence and deficiency of the doctor and the hospital concerned. The death occurred due to suffocation of the patient, which was pure negligence and deficiency. That the death was not normal or natural is also clear from the fact that the hospital itself felt it necessary to conduct a post mortem of the dead body. Learned counsel also draws attention to the opinion given in the post mortem report dated 21.12.2002, which is being reproduced below for reference:

The cause of death in my opinion due to cardio pulmonary failure due to cerebrovascular accident in a post operative pt.

Learned counsel further submits that the District Commission made a very superficial appraisal and dismissed the complaint in a perfunctory manner. He submits that the District Commission’s examination of the merits is condensed in just two short paragraphs of its Order dated 23.05.2007, which is being reproduced below for reference:

We have very carefully perused all the papers/documents filed in this case. We have also heard and considered the submissions made by the Ld. Lawyers on behalf of the complainant/petitioner.

There is no dispute that the operation of “Gallbladder Stone” conducted on 20.12.2002 was successful. The complainant-petitioner alleged that cause of death of the patient was due to suffocation and that was due to negligent care and not for operation matter.  On scrutiny of the Post Mortem report dated 21.12.2002, it appears that the cause of death was due to cerebrovascular accident in a case of post operation patient, as described by Dr. Dipak Bhattacharya (the surgeon who conducted the operation) in his petition dated 06.06.2006. The complainant-petitioner did not adduce any cogent evidence/document in support of their allegation that the patient died due to lack of proper care during post-operation period.  Neither they had been able to disprove the view of Dr. Dipak Bhattacharya (the surgeon who conducted the operation) in regard to the death of the patient by producing any cogent document/examining any medical expert. So we are inclined to hold that the complainant-petitioner fails to prove his case that the patient died due to negligent care of the Hospital Authority during post operation-period. Therefore, we strongly hold that the OP-Hospital Authority is not deficient in service. Thus the issues answered against the complainant-petitioner.

Learned counsel submits that a plain reading of the District Commission’s Order would show that it did not appreciate the findings and implications of the post mortem report in the correct manner, it also did not call for any expert opinion from a panel of qualified independent doctors as is normally done in such cases, it altogether ignored the principle of res ipsa loquitur.

Learned counsel further submits that the complainant is a poor farmer and he was not much aware or abreast of the law of limitation for filing appeal. He was given to nurture a bonafide belief that the appeal would lie only after the proceedings before the Medical Council of India (MCI) would get over. To his dismay the MCI’s order was delivered much belatedly on 10.05.2016. He therefore filed the appeal within a short time thereafter on 05.07.2016.

Learned counsel dwells on the reasons contained in the application for condonation of delay filed before the State Commission, which are being reproduced below for reference:

That the complainant had filed the complaint and the same was dismissed on 23/5/2007.

The appellant was advised that as the matter was pending before Medical Council the appeal could not be preferred and only after proper verdict of the Medical council any appeal could be preferred.

The complainant being a farmer by profession and having no special knowledge was under the impression that appeal before the Honble Commission could be filed only after completion of the proceeding pending before the Medical Council.

The proceeding before the Indian Medical Council ended on 10/5/2016 and thereafter the complainant consulted lawyer in Kolkata to prefer the appeal and the same was filed after detail discussion with the advocate.

It is stated that in preferring the appeal there is a delay of 3266 days which was due to the misconception of the appellant that only after completion of the proceeding before Medical Council the appeal could be filed.

It is further stated that the appellant does not stand to benefit by lodging an application late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

It is further stated that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

Learned counsel submits that the State Commission has not appreciated the reasons proffered by way of the application in the right perspective and has stringently taken a rather mechanical and narrow view of the whole matter by being primarily influenced by the quantum of delay and has not evalued the genuine and bonafide reason which caused it. Submission is that the proceedings before the MCI were itself long drawn out and had it been that the MCI had given its order with dispatch or even within a reasonable period the total quantum of delay would have been far too less.

Learned counsel also draws attention to the MCI’s verdict as contained in its order dated 10.05.2016, which is being reproduced below for reference:

At a subsequent meeting of the Council dated 06.01.2015 at the time of confirmation of Proceedings of the Council Meeting dated 09.12.2014, Members observed that in his reply to the charge-sheet dated 19.03.2009, Dr. Amit Chakrabortyu, Anaesthetist vide letter dated 24.12.2009, contended that he did not give anesthesia to the patient, which later turned out to be false as per confirmation by Dr. Dipakkumar Bhattacharyya. The members deliberated on the issue afresh and observed that Dr. Amit Chakraborty had tried to mislead the Council. Dr. Chakraborty had verbally regretted for above reply during the course of the meeting.

In the background of the above, the Council decided that Dr. Amit Chakraborty be warned for his above misdemeanor and the said decision be communicated to him in writing.

Learned counsel submits that the MCI has categorically recorded that false averments regarding anesthesia were made by the concerned anesthetist. Submission is that the gravamen of the indictment emanates from the unexplained suspicious nature of the freak death of the patient and the same in turn has a proximate nexus with guilty denial of the anesthetist about his presence on spot and which tellingly betrayed his guilty conscience. The gravely questionable conduct of the doctor who administered the anesthesia itself casts an adverse reflection on the opposite parties and further demonstratingly highlights the casual examination done by the District Commission on the merits of the matter. Submission is also that the MCI’s castigating warning to the anesthetist is of material significance and would have been inter alia placed before the State Commission had it prudently proceeded for disposal of the appeal on merits.

Learned counsel concludes his submissions by emphasizing that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred since the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay.

Learned counsel for the opposite parties submits that the appeal was filed with a huge delay of 3328 days. The argument regarding proceedings being pending before the MCI have been duly examined by the State Commission and have been outrightly dismissed as untenable. He draws attention to relevant extracts from the State Commission’s appraisal, which are being reproduced below for reference:

The cause of pendency of the proceedings before the Medical Council and of ignorance of legal provisions, as taken recourse to by the Ld. Advocate for the Appellant/Complainant, does not appear to be ‘sufficient cause’,  which means ‘adequate’ and ‘enough’ reason, as observed by the Hon’ble Supreme Court in Basawaraj & Anr. Vs. Spl. Land Acquisition Officer, reported in (2013) 14 SCC 811, which prevented the Appellant/Complainant to approach this Commission within limitation. There is no evidence on record to show that the Appellant/Complainant was diligent and active enough in filing the Appeal within the period of limitation but the Appellant/Complainant was prevented to file the Appeal for the reason beyond his control.

Further, it is observed by the Hon’ble Supreme Court in Basawaraj & Anr. Vs. Spl. Land Acquisition Officer (supra) that it is the settled proposition of law that law of limitation may harshly affect a particular party, but it has to be applied with all its regours when the Statute so prescribes, and that the Court has no power to extend the period of limitation even on equitable ground. It was also consistently held that ‘inconvenience’ is not a decisive factor to be considered by interpreting a Statute.

Learned counsel submits that the law of limitation cannot be disregarded with indifference. Appeal before the State Commission is not dependent on the separate independent proceedings before the MCI. Sufficient cause to condone the huge delay is not at all forthcoming. Submission is that the present revision ought to be dismissed, being totally ill conceived and bereft of any worth.

Learned counsel concludes his arguments by submitting that this Commission cannot be swayed by considerations of equity but has to implement the law of limitation stringently.

We note that this is a case of alleged medical negligence and deficiency resulting in the death of the young patient. A post mortem was necessitated. Its report mentioned “cerebrovascular accident in a post operative pt”. The District Commission in its Order has not critiqued the findings of the post mortem with reference to the allegation that the patient died due to suffocation caused by negligence and deficiency. It is also seen that no expert opinion was ever sought. We agree with the observations of the learned counsel for the complainant that the District Commission’s examination of the merits was somewhat casual, as its perusal itself would show, and might perhaps not suffice to pass the test on the anvil of a speaking and reasoned order. We may but hasten to add that whether or not the District Commission had erred in appraising the merits is not a material factor to consider condonation of delay in filing the appeal, for which the facts and circumstances as may constitute sufficient cause to condone the delay under section 24A(2) of the Act 1986 have to be necessarily forthcoming.

In the present matter the case of the complainant is based on his mistaken notion that the appeal would lie only after the proceedings before the MCI would get over. We agree with the learned counsel for the opposite parties that proceedings before the MCI do not have any bearing on the appeal and specifically on the limitation period provided in section 15 of the Act 1986. However it has also to be concomitantly seen that the complainant is a poor farmer and he has candidly placed forth his mistaken belief with honest truth before the State Commission. Also, had the MCI proceedings, though no doubt independent and separate of ‘complaint’ or ‘appeal’ under the Act 1986, not been inordinately so delayed the delay in filing the appeal before the State Commission could have been far less. The mistaken belief held by the complainant on wrong advice might then not have occasioned a delay of so many days and the same could perhaps have been ‘reasonable’ enough as to pass muster for condonation.

No doubt the powers which have been conferred to condone the delay have got to be exercised judiciously and not arbitrarily and certainly not at will either whimsically or capriciously. The discretion to be exercised in such matters is not an exercise of some kind of privilege or prerogative, it is essentially a legal exercise and has to be lawfully harnessed with judicious discipline. The object and purpose behind the law of limitation cannot be either swung into oblivion or be ignored with apathy. A complete disregard of the law of limitation will eventually frustrate and defeat the salutary purpose which inspires the enactment in this regard wherever provided.

In the present case, but, having regard to the factual and circumstantial matrix behind the delay as emanating, we do find sufficient cause forthcoming to condone the delay. As such we disagree with the view taken by the State Commission in this regard, which does not appear to have taken into consideration the entire facts and circumstances behind the delay in their totality.

In the conspicuous facts and circumstances of the case as are deriving from the record we feel that this is a matter in which it would have been well advised that the State Commission ought to have leaned in favour of the complainant and should have considered the noticeable facts and circumstances of the case just enough so as to constitute sufficient cause to condone the delay. We feel in the peculiar circumstances and facts of this case that it would result in travesty of justice or at least to certainly something less than justice if we throw out the complainant’s case at the threshold stage and do not allow adjudication on merits. In the conspicuous and peculiar facts and circumstances of the case, we are of the view that the door of justice must be kept ajar and the matter ought to be adjudicated on merits.

Sequel to the discussion above we set aside the impugned Order dated 06.07.2017 of the State Commission and remand the case back to the State Commission with the observation that sufficient cause to condone the delay was quite well forthcoming and as such the delay stands condoned. We request the State Commission to decide the substance of the complaint on merit as per the law. The parties are directed to appear before the State Commission on 10.04.2023.  However, we make is explicitly clear that that we have not touched upon the merits of the case and no observation made in this Order shall be construed to the prejudice of the respective rights and contentions of the parties.

The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel. It is also requested to send a copy of this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.