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Judgment
Karuna Nand Bajpayee, Presiding Member
These appeals have been filed under section 19 of the Act 1986 in challenge to the Orders dated 29.07.2019 of the State in CC No. 02 of 2016.
The appeal has been filed with a reported delay of 96 days.
However, in the interest of justice, considering the plausibility and acceptability of reasons mentioned in the application for condonation of delay, in order to decide the matter on merit rather than to dismiss it on the threshold of limitation, the delay is condoned
Heard learned counsel for the parties and perused the record.
The complaint is qua the death of a young woman who died due to alleged medical negligence on the part of the Opposite Party No. 1 doctor and Opposite Parties No. 2 & No. 3 Hospital.
The State Commission dismissed the said complaint on the ground of limitation after observing thus:
“In view of the order passed in M.P. No. 32/2017, dated 29.07.2019, this complaint is dismissed as not maintainable before this Commission since the complaint is barred by limitation. No order as to costs.
It appears that M.P. No. 32 of 2017 was moved by the Opposite Parties No. 1 and 3 challenging the maintainability of the complaint on the ground of limitation. The State Commission allowed the said petition after observing inter alia thus:
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The 1st and 3rd opposite parties have proved their case that the complaint is not filed within the period of limitation as defined under Section 24(A) of the Consumer Protection Act and when the complaint is not filed within the period of limitation and further as no separate application was filed explaining sufficient cause for the delay, the complaint is not maintainable as it is barred by limitation and therefore, we come to the conclusion that the complaint is barred by limitation and therefore the complaint filed by the complainants in CC No. 02/2016 is liable to be dismissed as not maintainable before this Commission as it is barred limitation and the point is answered accordingly.
Learned counsel for the appellants submits that after the demise of wife of the appellant no. 1 the post-death period has been a period of traumatic depression for the appellants as they had never expected such early premature death despite she being taken to the best hospitals. In due course the appellant had tried to find what actually could have contributed to her early demise. It was in this process that he made attempts to get hold of the records and opinions from various medical experts which was an uphill task. Appellant was also cautious and did not want to bring serious accusation of negligence or deficiency without collecting convincing opinions and materials. It was in the year 2014 that he could come to know positively about the negligence and deficiency of service committed by the respondents, to the extent of actionable cause or claim. Learned counsel has further drawn attention of the Bench to the grounds of appeal wherein the details in this regard have been given. Relevant paragraphs in this regard may be quoted hereinbelow:
n) Subsequently, after coming out of trauma of his wife's early demise, Appellant No.1 obtained all the medical records and case sheets and related documents of his wife of the treatment provided at Madurai and Chennai and consulted doctors on 04.01.2014 in order to gather opinion as to the early death of his wife. It is pertinent to note here that on perusal of the medical records, the doctors were of the view that the condition of his wife had drastically deteriorated and the cancer had spread to bones and liver to such a great extent due to the with-holding of medical records of the patient by Respondent No.1 along with negligence in performing lumpectomy, non-performance of mastectomy, delay in providing timely treatment/ surgical procedure.
o) Thus, in their opinion if treatment had been provided properly without any delay or postponement, the spread of cancer could have been arrested and the life expectancy of the deceased could have been increased considerably. They further reiterated that as far as cancer is concerned time is the essence in treating the patient and any sort of delay, even of slightest nature, may aggravate and result in spread of cancer to other parts of the body.
p) It is submitted before this Hon'ble Court that only at this juncture did the Appellant No.1 came to know that one of the reasons of early demise of his wife was due to withholding of the medical records of the patient along with non-performance of mastectomy and negligence in performing lumpectomy by the Respondents Subsequently, on coming to know about the intentional negligence, deficiency in service on part of the Respondents, Appellant immediately issued a legal notice dated 12.01.2014 to Respondent No.1. A copy of the Notice dated 12.01.2014 is marked and annexed hereto as ANNEXURE A/2.
Thereafter, the Respondent No.1 sent a reply notice dated 29.01.2014 with false, incorrect and frivolous averments. A copy copy of the Reply Notice dated 29.01.2014 is marked and annexed hereto as ANNEXURE A/3.
It is submitted before this Hon'ble Commission that in July, 2011 the doctor had asked for the entire medical record including details about the chemotherapies, medicines, metastasis level as well as the case sheet. However, the entire medical record/case sheets of the patient was not provided to the Appellant. Subsequently, what was provided by Respondent No.1 was only a brief reply vide letter dated 21.07.2011. The said brief reply only brought a small portion of patient's medical condition to light with respect to metastasis status arising due to non-performance of mastectomy along with wrong guidance with respect to the treatment given by the Respondents to the patient. It is pertinent to note that on the basis of the said brief reply, the doctors did further treatment.
Thereafter, in 2014, after the demise of the patient, all the medical records/case sheets of the patient were obtained by the Appellant. After obtaining the medical records Appellants consulted various doctors and got the opinion that withholding the medical records was also one of the reasons of her demise. That aspect came only to the notice of the Appellant on 04.01.2014 along with the detailed aspect of the disease.
Therefore, the second opinion sought in July 2011 was limited to the fact of wrong guidance provided to the patient with respect to her treatment. However, whether the wrong guidance was fatal to the victim was not clear until 2014 when Appellants obtained complete medical record along with the case sheet of the deceased on sought opinion from other doctors.
Therefore, cause of action accrued only on 04.01.2014 when entire medical record of the deceased was provided to the Appellants, after which they sought opinion, wherein it was stated that non- provisioning of medical records was also a reason resulting in the ultimate death of the Complainant's wife. Thus, the said complaint bearing Complaint No. 2/2016 dated 30.12.2015 was filed well within the limitation period as defined under section 24(A) of the Consumer Protection Act, 1986 and was wrongly dismissed on the ground that the same was barred by limitation.
Learned counsel for the appellants has also reiterated Section 24-A of the Act 1986 and submitted that if the facts and circumstances of the case give out sufficient cause to explain the delay then the consumer fora can certainly condone the delay. It was also submitted that the sufficiency of cause has to be objectively and judiciously adjudicated by the Commission and ordinarily a liberal approach ought to be adopted so that the complainant may not be left remediless and the matter may be adjudicated on its merits rather than being scuttled at the very threshold. Contention is that acquiring of knowledge about the negligence and deficiency in 2014 was also emphatically mentioned in the complaint itself and it is not a subsequent improvisation or introduction done or made by the complainant during the course of arguments. The contention is that State Commission has taken a rather strict view of the matter and has not attributed requisite or significant importance to the point of time in the year 2014 when the complainant claims to have acquired the knowledge of negligence committed and which constituted the reckoning date of cause of action. Another limb of submission is that the view adopted by the State Commission has simply resulted in miscarriage of justice. Ends of conscionable consumer justice shall stand defeated if the complainants are not given a chance to prove their case on merits and the doors of justice are not kept ajar for them in a matter like this where they lost their dearest family member forever who departed in pain due to the medical negligence and deficiency of service.
Learned counsel appearing for the respondents in rebuttal has submitted that the point of limitation is not an insignificant aspect and with all the sympathy towards the deceased and the suffering of the complainants it cannot be made the basis to condone the delay. Learned counsel defends the impugned order and submits that it is a detailed Order with reasons and should be allowed to stand.
Perused the record in the light of the submissions made at the bar. Without expressing any opinion on the merits of the case, keeping in perspective the grounds of appeal as quoted hereinbefore and also the averments made in the complaint in this regard this Bench is of the view that they constitute sufficient cause to condone the delay. In the peculiar circumstances and specificities of the case, specially in the backdrop of the assertions about the acquisition of the knowledge about the medical negligence and deficiency in the year 2014 the State Commission ought to have preferred to condone the delay and allow the parties to contest the case on merits rather than to scuttle the complaint at the very threshold.
The impugned order stands set aside. The matter is remanded back to the State Commission. The State Commission is requested to decide the same on its merits in accordance with law after providing adequate opportunity to both the sides. This Commission is consciously refraining from detailing the facts or critiquing the matter since the dispute is as yet to be adjudicated on merit and it does not wish to in any manner colour the vision of the forum below.
The parties are directed to appear before the State Commission on 24.08.2023. In case any of the parties does not appear on the date fixed the State Commission shall issue notice to them and proceed with the matter in accordance with law thereafter.
The Registry is requested to send a copy each of this Order to all parties in the appeal and to their learned counsel. The Registry is also requested to forthwith communicate 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.