Metta Krishna Rao Vs. M/S the Seven Hills Hospital Rep. by Its Managing Director Seven Hills Hospital and Another - Court Judgment

Oral Order: (R. Lakshminarsimha Rao, Member)

1. The complainant is the appellant. He filed complaint claiming an amount of Rs.1,00,000/-towards medical expenses and a sum of Rs.19,00,000.- towards compensation on the premise that the respondents rendered deficient medical service to him.

2. The respondent submitted that he an assistant lineman working with APEPEC experienced partial numbness of his both lower limbs in the year 2006 and the respondent no.2 after getting conducted relevant tests diagnosed him with cervical canal stenosis, cervical spondylosys with disc protruding for cure of which on the advice of the respondent no.2, the appellant had undergone surgery on 4.9.2006 and during the post-operative stage, the appellant developed complications which are diagnosed by the respondent no.2 as gas distention jejunely loops with step latter pattern for treatment of which the appellant had undergone surgery for second time.

3. The appellant submitted that both the lower limbs of the appellant were paralyzed and he used to contact the respondent no,1-hospital till -01-2010 and he contacted neurophyscian in the month of February, 2010 who informed him that the surgery he had undergone at the respondent no.1-hopsitla was a failure. The appellant got issued notice to the respondents on 2.8.2010 demanding for an amount of Rs.20 lakhs towards compensation on account of failure of operation and for future medical expenses and attendant charges as also for towards compensation for suffering from mental agony. .

4. The appellant in support of his case, filed his affidavit

5. The District Forum dismissed the complaint at the admission stage by dismissing the petition which was filed seeking for condonation of delay of 805 days in filing the complaint.

6. Feeling aggrieved by the order of the District Forum the complainant has filed appeal contending that the District Forum failed to consider the documents and that the District Forum failed to consider that the appellant was bedridden for four years and that the delay in filing the complaint is 805 days and not 1061days as contended by the respondents.

7. The points for consideration whether the appellant had shown sufficient cause to condone delay of 805 days in filing the complaint?

8. The appellant was admitted in the respondent-hospital on 29.8.2006 and after undergoing tests such as MRI scan, he was diagnosed with “tingling numbness of the both lower limbs cervical canal stenosis cervical spondylosis, disc protruding“. The appellant had undergone surgery on 4.9.2006. He submitted that post-operative complications developed and he was shifted to ICU where the doctor, the second respondent performed upon him another surgery on the seventh day of the operation. The appellant had not stated as to when he was discharged from the respondent no.1-hopsital. He stated that both his lower limbs were paralyzed and he used to consult the second respondent at the first respondent –hospital. Except the pathological test reports, the appellant had not filed any other document to show that he was under the treatment at the respondent no,1-hopsital.

9. The District Forum observed that the statement of the appellant that he was bedridden is in contradiction to his statement that he used to visit the respondent no.1 hospital and he had been treatment till January 2010. The District Forum observed as under:

The only ground to explain the delay of 805 days as claimed by the complainant is that he was bedridden all these days. But as pointed out by the counsel for the opposite party, in para 6 of the Affidavit, he categorically averred as per the advice of the 2^nd opposite party, he used to visit the 1^st opposite party hospital and taking treatment till January 2010. Similarly on 2.8.2010 itself he got issued registered lawyers notice, evidently instructed by him, to both opposite parties demanding payment of compensation and expenses for treatment. The complainant has been filed only on 16.12.2010. These two statements are quite inconsistent and contradictory to his own statement that he was totally bedridden all these years and his family members also not even able to contact the Advocate, leaving him alone at the house. The complainant has got a duty to explain each days delay and unfortunately he failed to assign any valid reasons and on the other hand the reasons assigned are found to be inconsistent with his own pleas.

10. The learned counsel for the appellant submitted that the appellant was under the treatment of the respondent no.2 who assured him that he would be all right and on 10.2.2010 the appellant consulted neuro- physician who informed him that the surgery he had undergone was not successful. Thus, the appellants case is that he came to know that the operation was a failure in the month of February, 2010. The appellant had not filed any document to show that he had been treated at the respondent no.1-hopsitla or by the respondent no.2 at any time he was discharged from the respondentno.1-hospital. It is pertinent to note that the appellant had not filed discharge sheet issued by the respondent no.1-hosptial.

11. The discovery theory dished out by the appellant is rightly not considered by the District Forum. Honble Supreme Court in N.Shrikhande (Dr.) Vs Anita Sena Fernandes reported in (2011) 1 Supreme Court Cases 53 disapproved the discovery theory in similar circumstances as obtained in the case on hand. The Supreme Court considered as to what is discovery rule and the scope of its application as under:

“In cases of medical negligence, no straitjacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctors part or any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.”.

12. The Apex Court held that benefit of discovery rule cannot be extended to the case of the complainant therein and it made the following observation:

“The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondents abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief. However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bonafides of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002.”

13. The appellant failed to produce record in support of his contention that he was under treatment of the respondent no.2 at the respondent no.1-hosptial during the period from the time he was discharged from the respondent no.1-hospital till he got issued notice on 2.8.2010 as also the appellant had not filed any scrap of paper to show that he consulted the neurophysician in the month of February 2010. The prescription dated 10.,2.2010 does ot support the case of the appellant that he was under the treatment of the respondent no.2 since the date of his discharge from the respondent no.1 hospital.

14. There is no evidence on record to indicate that the appellant had been bedridden for a period of four years. Even after the alleged consultation with the neruophyscian, the appellant had not shown any reason for not filing the complaint and after waiting for a period of six months therefrom he got issued notice on 2.8.2010 and two years thereafter, he had chosen to file the complaint. This Commission does not find any satisfactory explanation to condone the delay of whopping 805 days in filing the complaint.

 15. In “Anshu Agarawal Vs. New Okhla Industrial Development Authority” reported in IV (2011) CPJ 63 (SC), the Honble Supreme Court opined:

“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. With the above observations, the application for condonation of delay is rejected and the special leave petition is dismissed as barred by limitation.”

16.  In another decision the Honble Supreme Court in “ Lanka Venkateshwarlu Vs. State of Andhra Pradesh” reported in (2011) 4 SCC 363 held:

“reasonable exercise of discretionary power and discretionary power should be exercised systematically informed by reasons. Liberal approach in considering sufficiency of cause for delay should not over-ride substantial law of limitation, especially when court finds no justification for delay”.

17. The parties seeking relief has to satisfy the court that he/she has sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act.

18. In “Abdul Hafeez Vs State Bank of Hyderabad”, II(2013) CPJ 285(NC), the Honble National Commission held :

9. Honble Apex Court in I (2012) CLT 338 (SC) = II(2012) SLT 312=(2012) 3 SCC 563, Post Master General and Ors., v. Living Medial India Ltd. And Anor., has not condoned delay in filing appeal even by Government department and further observed that condonotation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

19. This Commission is of considered view that the explanation tendered by the appellant does not satisfy the element of reasonableness. The explanation for condoning the delay in filing the complaint is not sufficient. For the foregoing reasons the appeal is liable to be dismissed.

20. In the result the appeal is dismissed confirming the order of the District Forum. No costs.