2nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

Consumer Complaint No. 82 of 2009

Date of institution: 25.11.2009 Date of Decision:

21.1.2014

Sukhvir Singh s/o S. Sucha Singh r/o 109, Dakha House Complex, Putlighar, G.T. Road, Amritsar. …..Complainant Versus 1.

Muni Lal Chopra Hospital, 361, The Mall, Amritsar.

2.

Dr. Rohit Kapoor, 2A, Rani Ka Bagh, Amritsar.

3.

Dr. Vijai Kumar, Jr. Medical Officer

4.

Dr. Naresh Chawla

All C/o Muni Lal Chopra Hospital, 361, The Mall, Amritsar. …..Opposite Parties

Argued By:-

For the complainant

:

Sh. Sachin Sharma, Advocate

For opposite party No.1 :

Sh. Vikas Gupta, Advocate for Sh. Vivek Salathia, Advocate

For opposite parties No.2-4:

Sh. Vaibhav Narang, Advocate

For opposite party no. 3 :

Ex.-parte.

Consumer Complaint under Sections 11 & 12 of the Consumer Protection Act, 1986.

Quorum:Shri Gurcharan Singh Saran, Presiding Judicial Member Shri Vinod Kumar Gupta, Member

2

CONSUMER COMPLAINT NO. 82 OF 2009

ORDER

Gurcharan Singh Saran, Presiding Judicial Member The complainant Sukhvir Singh(hereinafter called “the complainant”) has filed the present complaint under the Consumer Protection Act, 1986 (in short ‘the C.P. Act’) against the opposite parties on the allegations that Mrs. Parkash Kaur mother of the complainant was admitted in Ranjit Hospital, Putlighar, G.T. Road, Amritsar on 1.1.2002 at 1.30 a.m., however, the hospital referred the case

to

Dr.

Rohit

Kapoor,

who

diagnosed

it

a

case

of

‘PNEUMONITIS’. The treatment of Parkash Kaur continued till the complainant decided to shift her to Muni Lal Chopra Hospital, The Mall, Amritsar and she was shifted there on 4.1.2002 vide registration No. 1539/01/02 at 7.35 p.m. under Acute Respiratory Deficiency Syndrome (ARDS) and she was kept in ICU under the treatment of Dr. Rohit Kapoor and after few days, she was shifted from ICU to a normal room. Thereafter for treatment of the Chest specialist was called, namely, Dr. N. Chawla on 15.1.2002, who investigated the patient. The nebulizer was used. In the evening of 15.1.2002, the patient complained of increasing breathlessness. After seeing the condition of his mother, the complainant brought it immediately to the notice of Junior Medical Officer-in charge Dr. Vijai, who stated that let Dr. Rohit Kapoor come whereas Dr. Rohit Kapoor came on his trip during night. The complainant told the doctor that his mother was not breathing properly but nothing was done to improve the deteriorating condition of his mother and the Doctor and other staff showed an utter lack of attention as well as inclination towards patient and she

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went in Coma on 16.1.2002 and after that the Doctor tried to revive his mother by using medical techniques but it was too late. Then mother of the complainant was again taken to ICU and put on ventilator and she died on 22.1.2002 due to gross negligence on the part of the Ops. The evidence and carelessness on the part of the Doctor is further evident from the Scanning Report of the brain done at Dhillon MRI Scan Centre, Amritsar in which the mother of the complainant was diagnosed as hypoxic insult to the brain, which means that the brain become dysfunctional for want of Oxygen, lack of supply of oxygen, which resulted to lead the patient to Coma. Had the Doctor given proper care and required treatment to the mother in time, she would have been definitely saved! The matter was brought to the notice of the Punjab Medical Council vide complaint dated 20.9.2004. A writ petition was filed before the Hon’ble Delhi High Court, which was disposed of by giving one opportunity to the complainant and then he filed the complaint before Hon’ble National Consumer Disputes Redressal Commission in which the said council was a party but the said complaint was dismissed as withdrawn with the liberty to approach appropriate Forum and then the complainant approached this Hon’ble Forum. Legal notice dated 14.1.2005, 27.3.2009 and 21.4.2009 was also issued to the parties demanding the medical record pertaining to the complainant’s mother but the hospital did not give the relevant record to the complainant. The complainant has demanding compensation of Rs. 25,18,000/- on account of actual loss, Rs. 3,18,000/- on account of actual loss,

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mental harassment, Rs. 10,00,000/-, deficiency in service of Rs. 12,00,000/-. Hence, the complaint. 2.

The complaint was contested by the opposite parties, OP

No. 1 in its written statement have taken the preliminary objections that the complaint filed by the complainant is legally not maintainable; the OP hospital has been unnecessarily arrayed as a party without any fault or deficiency on the part of the opposite party – hospital; the complainant is a habitual litigant, approached the various forums and has tried to involve different persons as a party; the complainant has tried to rope different persons according to his whims and fancies. The perusal of earlier complaints will clearly reveal the conduct of the complainant means in earlier Complaint No. 4 of 2009, the complainant had arrayed Punjab Medical Council, Ranjit Hospital and Dr. Jain Malhotra as opposite party, who have now been deleted as array of opposite party; the complaint suffers from non-joinder of necessary parties; deceased Parkash Kaur was originally admitted at Ranjit Hospital and she was referred from that hospital; the complaint suffers from inordinate delay of approximately seven years, which is sufficient ground to dismiss the complaint of the complainant; the OP was one of the most reputed hospital of Amritsar and is well known in the region for the facilities and patient care, opposite party had shut down its operations from June, 2009 and the hospital is now leased out to M/s The New Hope; the op is not guilty of any deficiency in service as the complainant has concealed material facts from the knowledge of the Commission; the complainant was in fact aware of the critical condition of his mother Parkash Kaur; on 21.1.2012 the

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attendants of the patient had voluntarily told to dis-continue any further medications and further agreed to be responsible for any unforeseen risk; the patient Parkash Kaur had expired on account of extreme illness and not on account of any deficiency in the treatment and that the complaint filed by the complainant is absolutely false and frivolous. On merits, it has been admitted that the mother of the complainant was admitted in the hospital of the OP referred from Ranjit Hospital. The condition of the patient was diagnosed as “Type2 DM with Septicaemia Grade 3 with ARDS with High Risk Scoring Apache II” and that the Doctor had told that the patient will be discharged as she regain full health and from ICU, she was shifted to normal room as her condition had improved on account of treatment, she was also administered nebulizer, which was necessary to consolidate the delicate condition of the patient. However, on 16.1.2002, the condition of the patient suddenly deteriorated and immediately necessary steps were taken by the Doctor and the staff. It has been denied that the Doctor showed utter lack of interest in attending the patient. The patient was regularly monitored by the staff and on 16.1.2002, the patient had sudden respiratory attack and the patient was immediately attended and she was shifted to ICU and lateron put on ventilator. The action of the doctor and staff are strictly in accordance with the standard medical procedure. The patient was sugar patient and was suffering from Pneumonitis with Septicaemia, she was case of ARDS wherein as a result of malfunctioning of lungs, there was lack of supply of oxygen to the brain. It has been denied that hypoxic insult was on account of negligence on the part of the

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doctors, rather, the actions of the Doctor and Staff was strictly in accordance with the standard medical procedure. No truth was found by the Punjab Medical Council in the complaint filed by the complainant, accordingly, it has been stated that there is no negligence or deficiency in service on the part of the Ops, therefore, the complaint be dismissed. 3.

Opposite parties No. 2 & 4 have taken the preliminary

objections that the complaint filed by the complainant is not legally maintainable; the complaint filed by the complainant was found to be baseless before various Forums and Courts; the complaint is barred under various provisions of law; the complaint is result of ill-will and personal malafide motive on the part of the complaiant; the complaint is based upon mis-statement of facts and that the entire complaint filed by the complainant as well as the other material fact from the record does not disclose any medical negligence. On merits, it has been admitted that the mother of the complainant Parkash Kaur was admitted in Ranjit Hospital, Putlighar, G.T. Road, Amritsar on 1.1.2002, who was 58 years female and a case of Type-2 Diabetes having complaint of acute breathlessness, which was diagnosed as Pneumonitis with Septicaemia. Since the Ranjit Hospital did not have proper facilities to provide the medical treatment so she was shifted to Muni Lal Chopra hospital and was admitted in ICU and treatment was started as early as possible. On 4.1.2002, she was in critical condition and with the treatment she became stable and was shifted from ICU to the general ward. The patient had chest problem with Tachypnoea for which Chest specialist Dr. Naresh Chawla OP No. 4

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was called, who also give some treatment as per the chest consultation. It has been denied that Dr. Naresh Chawla had ever visited the hospital to treat the patient on 15.1.2002, rather he had visited on 12.1.2002. The nebulizer was administered to the patient on 9.1.2002. It had been denied that in the evening of 15.1.2002 the patient complained of breathlessness, rather it was on 16th night when the patient became too dyspnoeic for which change of treatment was done and was immediately attended by Dr. Rohit Kapoor and medical staff. It has been denied that nothing was done to improve the deteriorating condition of the mother of the complainant rather Dr. R.K. Saini and Dr. T.R. Mahajan put the patient on ventilator with immediate endotracheal intubation and the patient was again shifted to ICU and patient starting recovering in the ICU with bit better GCS scale under Neurologist Consultation Dr. Raj Kamal. The patient remained under intensive care of expert team of the Consultants. The team of the Doctor tried to give their best available treatment. Further MRI of the brain showed mild hypoxic changes in the brain and patient on account of pneumonitis and septicaemia developed ARDS in which the lungs of the patient could not provide proper oxygen to the blood resulting in hypoxia. It has been denied that on account of any wrongful acts attributable to the OP over all condition of Parkash Kaur became bad to worse or that Parkash Kaur had died on account of their negligence. It was denied that there was any medical negligence or deficiency in service on the part of the Ops, therefore, the complaint is without merit and the same be dismissed.

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4.

8

Replication was filed in which the allegations as stated in

the written statements were denied and in the complaint were reiterated. 5.

The parties were allowed to lead their evidence.

6.

In support of his allegations, the complainant had

tendered into evidence affidavit of Sh. Sukhvir Singh Ex. C-1/A, documents MRI Scan Report Ex. C-1/B, copy of the order dt. 6.11.2011 Ex. C-1/C, copy of order dt. 5.8.09 Ex. C-1/D, medical bills Ex. C-1/E, additional affidavit of Sukhvir Singh Ex. C-1/F. On the other hand, OP No. 1 had tendered into evidence affidavit of Sh. Mahesh Chopra Ex. OP-1/A, documents/ copy of lease deed Ex. OP1/B, Ex. OP-1/C complete medical record. OP Nos. 2 & 4 had tendered into evidence affidavit of Dr. Rohit Kapoor as Ex. OP-2/A. 7.

The counsel for the OPs have firstly taken the point that

the complaint filed by the complainant is barred by limitation under Section 24-A of the Act. The limitation is two years to file the complaint with the Consumer Fora. In case the complaint exceeds Rs. 20 lacs to Rs. 1 crore, its jurisdiction is with the State Commission. Certainly, the complaint was filed before the State Commission on 25.11.2009 whereas according to version in the complaint, she had died on 22.1.2002. Certainly, the cause of action had accrued to the complainant on 22.1.2002. Lateron in case he had moved the application before the Medical Council i.e. on the administrative side that does not extend the limitation. He has filed the complaint with the Hon’ble National Commission, which has been registered with the Hon’ble National Commission as Complaint No.

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121 of 2008, which shows that the complaint was filed in the year 2008. Even if the time spent in pursuing the complaint before the Hon’ble National Commission is exempted even then after the death of mother of the complainant on 22.1.2002, the complaint was filed in the year 2008 after a gap of 6 years, therefore, certainly, the complaint is barred by limitation. Even no application has been filed to condone the delay in filing the complaint. Therefore, we are of the opinion that the complaint filed by the complainant is barred by limitation. It was also discussed by the Hon’ble National Commission in “M/s Arihant Builders & Ors. Versus Gaurav Anand Co-op. Housing Society Ltd.”, 2012(4) CPR 487 (NC) that it was settled by the Hon’ble Supreme Court in case “Victor Albuquerque v. Saraswat Co-operation Bank Ltd.”, AIR 1988 (Bom.) 346 that:“where the facts showing clear negligence of party during entire period of limitation and no sufficient cause sustained for delay in filing case/appeal, the delay cannot be condoned.”

It was also held by the Hon’ble Supreme Court in case R.B. Ramlingam v. R.B. Bhavaneshwari”, 1(2009) CLT 188 (SC) that “we hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”. It was also held in “Mothoolal Nayak v. Life Insurance Corporation of India”, AIR 1962 SC 814 that the period of two years to be counted from date on which policy originally effected and not from date of revival of the policy.

CONSUMER COMPLAINT NO. 82 OF 2009

8.

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In case the complaint filed by the complainant is barred

by limitation then there is no necessity to give findings on the other points. This plea has been supported by the judgment of the Hon’ble Supreme Court State Bank of India Vs B.S. Agriculture Industries” (I) (2009) CTJ-481 (Supreme Court) (CP), observed in Para-8(relevant portion) as follows:“8.

It would be seen from the aforesaid provision that it is peremptory

in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

As such, there is no need to impart the findings on the other points. 9.

The arguments in this consumer complaint were heard on

13.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.

CONSUMER COMPLAINT NO. 82 OF 2009

10.

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The consumer complaint could not be decided within the

statutory period due to heavy pendency of Court cases.

(Gurcharan Singh Saran) Presiding Judicial Member

January 21, 2014. as

(Vinod Kumar Gupta) Member

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