Tandra Das vs Dr. Shymal Sarkar

Dr. S. M. Kantikar, J

The dispute relates to 2014, we are in 2019.

In brief, the allegations made by the complainant, a patient suffering from piles, were that the opposite party (doctor) was negligent in not carrying out any clinical examination, in not prescribing any diagnostic tests / investigations, in treating superficially in a callous manner, which all resulted in deterioration of the complainant's medical condition; and the complainant sought compensation of Rs.10,14,400/- (inclusive of Rs.5,00,000/- for "pain, shocks, mental trauma" and Rs.3,00,000/- for "deficiency in service").

The District Forum vide its Order dated 20.01.2016 had dismissed the complaint:

..........As per discharge summary patient presented Large Nacrotic abscess heavy pain in the perennial area seen by doctors of Tripura who given antibiotics without examining the local area according to the patient. From the evidence of the complainant it is found that allegation against O.P. No. 1 is that without examination local area he prescribed antibiotics. Then it developed into surgical case and the petitioner had to go to Kolkata and spent a huge amount. In Kolkata Report of discharge summary nothing stated about the damage due to late treatment. Nothing comes out from the prescription and evidence given by the complainant to support that the complainant was wrongly treated by O.P. No. 1. Tripura Medical Council on careful examination reported that O.P. No. 1 treated adequately as a careful doctor. That report is however challenged and as per decision of the Hon'ble High court fresh enquiry is to be conducted and opportunity is to be given to the petitioner patient for hearing. It is true that doctor Shyamal Sarkar was negligent when he did not notice the effected area but this negligence did not cause any damage to Tandra Das. After 8 days when the pain did not subside then she visited another doctor and that doctor advised her for surgical intervention.

After surgical intervention she was cured. Surgeon is also available in Tripura and there is nothing in the record that such surgery was not possible in Tripura. Negligence is careless state of mind which may amounts to indifference. It is careless conduct without reference to any duty to take care. Tortious liability arise from breach of duty primarily fixed by law. Negligence and tort involves violence consequence firstly by breach of legal duty to exercise due care secondly breach of duty thirdly consequential damage. Here petitioner failed to produce any sufficient evidence to support that O.P. No. 1 Dr. Shyamal Sarkar was not under legal duty to exercise due care to see the effected area and by his failure he committed no breach of duty. Petitioner side also failed to support that due to such breach of duty petitioner suffered consequential damage. Dr. Shyamal Sarkar prescribed some antibiotics hoping that the abscess might subside and pain might be removed. When the pain was not removed and petitioner had been suffering she did not visit the doctor again but went to another doctor after 8 days. That doctor then referred her to surgeon. For this 8 days delay in treatment she did not suffer any damage. There is no medical opinion to support that the prescribed antibiotics caused any damage to the effected area & there is no medical opinion to support that the antibiotics were wrongly prescribed and were not supportive in the treatment. So we are of the view that there was no medical negligence by doctor Shyamal Sarkar and he is not under any liability to pay any compensation. The petition has no merit. Both points are decided accordingly.

In view of the above findings above the prayer filed u/s 12 of the act is dismissed...........

(Findings and decision of Point No. 1 and 2 in the District Forum's Order)

The State Commission vide its Order dated 08.03.2017 had dismissed the appeal on limitation:

Perused the condonation petition. From the whole condonation petition, it is not clear to us who was the Ld. Advocate to inform the petitioner regarding the result of the complaint case. Not only that, though the judgment was delivered on 20.01.2016, the complainant first time met with her Advocate on 11.05.2016. For explanation of this period, though she stated that she could not move alone, but in support of her that contention, neither any prescription, nor any medical certificate is submitted along with application for condonation of delay. It is further stated that the copy of the judgment which was delivered to the Ld. Advocate of the complainant just after passing of the judgment was misplaced by the Advocate clerk, but it is nowhere mentioned in the condonation petition, who was that Advocate clerk and how the copy of the judgment got misplaced. It also appears from the condonation petition that though the complainant nominated her Ld. Advocate on 11.05.2016, but then also, the appeal was not filed thereafter, on the ground that the certified copy which was supplied by the Ld. District Forum was misplaced by the Advocate clerk. Not only that, either for this or that ground, the Ld. Advocate dictated the memo of appeal only on 11.06.2016 and the same was filed on 13.06.2016 i.e. after a delay of 114 days from the due date of limitation . It appears from the condonation application that the same was signed by one Arpan Das, Ld. Advocate. Even after filing of the condonation petition along with appeal, an application for amendment of cause-title was filed on 15.07.2016.

There is no doubt that an application for condonation of delay has to be examined liberally subject to 'sufficient cause' is shown. The explanations which have been given in the condonation petition for delay in filing the appeal, is not at all satisfactory, rather according to us, neither the complainant nor the ld. Advocate has taken up the issue of filing appeal in time, seriously.

As already stated, there is a statutory provision enabling the Commission to entertain the appeal even after the expiry of the statutory period prescribed for filing an appeal, provided the appellant satisfies that there was 'sufficient cause' for not filing the same within time. The words 'sufficient cause' occurring in proviso to Section 15 of the Act, are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression, 'sufficient cause' though deserves to receive a liberal construction, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of the expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievances on merits of his appeal for causes beyond his reasonable control, which means the cause is bonafide and beyond the control of the appellant. There is no hard and fast rules, what should be the 'sufficient cause' in a given case.

Even if we take a liberal approach, then also according to us, in the condonation petition, there is nothing regarding the name of the Ld. Advocate, who communicated the result of the complaint case to the complainant and the name of the advocate clerk, who misplaced the copy of the judgment obtained from the District Forum. The reasons stated in the condonation petition elicit nothing satisfactorily to condone the delay in filing the appeal.

Considering the entire facts and circumstances, we are of the opinion that the delay in filing the instant appeal has not been properly explained. Accordingly, the condonation petition is dismissed and in consequent thereto, the appeal also stands dismissed.

(paras 9, 10,11 and 12 in the State Commission's Order)

This revision has been filed against the said Order dated 08.03.2017 of the State Commission.

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 19A of the Act). The period of limitation to file appeal is 30 days (section 19 of the Act). The appeal was filed in the State Commission with (further) admitted delay of 114 days.

In respect of the stated reasons for delay, the gist of which is recorded in para 9 of the State Commission's Order (quoted in para 3 above), it is noted that the stated reasons for delay do not explain satisfactorily the day-to-day delay in filing the appeal. No just or sufficient cause to explain the delay in filing the appeal in the State Commission is visible. The State Commission, thus, cannot be faulted in dismissing the appeal on limitation.

This bench however wants to also satisfy itself that there would be no miscarriage of justice if this Commission does not interfere with the State Commission's decision of not condoning the delay in filing the appeal before it. It is noted that both the sides were afforded opportunity before the District Forum. The District Forum dismissed the complaint holding that there was no medical negligence on the part of the opposite party (doctor). The State Commission dismissed the appeal on limitation, the appeal being delayed by 114 days, with no just or sufficient cause being visible for condoning the delay. Without attempting to examine or adjudicate on the Order of the District Forum on merit, this bench but does not find any reason visible to convince it that there would be any miscarriage of justice if this Commission does not interfere with the State Commission's Order of dismissing the appeal on limitation.

This bench finds no jurisdictional error, or legal principle ignored, or miscarriage of justice, in the impugned Order of the State Commission.

The revision is dismissed.