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Mani Saha v/s Apollo Gleneagles Hospital & Others


Company & Directors' Information:- APOLLO GLENEAGLES HOSPITAL LIMITED [Active] CIN = U33112WB1988PLC045223

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- APOLLO INDIA PRIVATE LIMITED [Active] CIN = U24290DL2012PTC237964

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- MANI AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1995PTC066017

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- C P E C APOLLO PRIVATE LIMITED [Active] CIN = U74999DL2015PTC283774

Company & Directors' Information:- N. K. MANI & CO PRIVATE LIMITED [Strike Off] CIN = U22121TN1960PTC004261

    Complaint Case No. CC/517/2017

    Decided On, 31 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER

    For the Complainant: Utpal Roy Chowdhury, Advocate. For the Opp. Party: Sritoma Mondal, Prabir Basu, Binota Roy, Advocates.



Judgment Text

Tarapada Gangopadhay, Member

The instant Complaint Case has been filed by the Complainant on 11.7.2017 with averment in the Petition of Complaint that the cause of action arose on 1.11.2012 when the patient concerned expired after 'Laparoscopic Cholecystectomy' operation on 18.6.2010 by the OP No. 3 for removal of Gallbladder as revealed from 'Theatre Record Operation Notes' dated 18.6.2010. After the death on 1.11.2012 of the patient concerned, the brother of the Complainant approached the West Bengal Medical Council for its opinion on whether or not there was medical negligence on the part of the OP No. 3-Doctor in respect of treatment of the patient, since deceased. The West Bengal Medical Council by its report dated 14.1.2013 reported about absence of medical negligence. Against such report of the West Bengal Medical Council the brother of the patient concerned moved an appeal before the Medical Council of India which did not entertain the appeal on the ground of delay in filing the same. Thereafter the widow of the deceased patient moved the instant Complaint Case before this Commission on 17.7.2017 with prayer for condonation of delay of 890 days in filing the instant Complaint Case.

The Ld. Advocate for the Complainant submits that the delay was caused for lapses on the part of the Advocates who were entrusted by the Complainant party for filing the Petition of Complaint.

The Ld. Advocate adds that hence the delay is due to fault of the Advocates and poverty of the Complainant and hence, the delay is unintentional.

The Ld. Advocate concludes that in view of the aforesaid submission such unintentional delay should be condoned, the Complaint Case be admitted and decided on merits.

In support of his submission the Ld. Advocate refers to the following decisions:

1. Executive Officer, Antiyur Town Panchayat Vs. G.Arumugam (D) by LRs, decided by the Hon’ble Supreme Court on 19.1.2015 in Civil Appeal No. 8577 of 2014.

2. National Insurance Co. Ltd. Vs. Hindustan Safety Glass Works Ltd., reported in (2009) 5 SCC 121.

On the other hand, the Ld. Advocates for the OPs submit that the cause of action actually arose on 18.6.2010, i.e. on the date of operation against which allegation has been raised and continued upto 1.11.2012 when the patient died, but the instant Complaint Case has been filed on 11.7.2017, i.e. after expiry of almost five years after the date of occurrence of the cause of action and hence, the case is barred by limitation as provided u/s 24A(1) of the Consumer Protection Act, 1986.

The Ld. Advocates further submit that the time taken for approaching the West Bengal Medical Council and the Indian Medical Association cannot extend the period of limitation.

The Ld. Advocates continue that when a Statute provides for a particular period of limitation, it has to be applied with all its rigors. In this context, the Ld. Advocates refer to a decision of the Hon’ble National Commission in Bappanand Narshimman Annu Vs. Hirmanidevi G.S.Gupta & Ors., reported in 2016 (4) CPR 447 (NC).

The Ld. Advocates also submit that statutory object of expeditious adjudication of Consumer Disputes will get defeated if highly belated petition, as in the case on hand, is allowed. In this context, the Ld. Advocates refer to the decision of the Hon’ble National Commission in M/s. Ganga Builders & Promoters Vs. Jagdish Gupta, reported in 2016 (2) CPR 239 (NC).

The Ld. Advocates conclude that in view of the aforesaid submissions the instant Complaint Case should be dismissed being barred by limitation as prescribed u/s 24A(1) of the Consumer Protection Act, 1986.

Heard both the sides, considered their respective submission and perused the materials on records.

The averment in the Petition of Complaint reveals that ‘Laparoscopic Cholesystectomy’ was done on 18.6.2010 which resulted in ‘irreparable brain damage’ of the patient concerned, which ultimately culminated in the death of the patient concerned on 1.11.2012. Therefore, from the averment it appears that the cause of action, which means the action giving occasion for and forming the foundation of the suit as held by the Hon’ble Supreme Court in State Bank of India Vs. B.B.Agricultural Industries, reported in 2009 (2) Supreme Court 1, arose on 18.6.2010 and continued upto 1.11.2012 when the patient concerned died.

24A. Limitation period-

1. The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

In a decision of State Bank of India Vs. B.B.Agricultural Industries (Supra) the Hon’ble Apex Court held 'It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Fora 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 expression ‘shall not admit a complaint’ occurring in Section 24A(1) is a sort of Legislative command to the Consumer Fora to examine on its own whether the complaint has been filed within the period of limitation prescribed thereunder …'.

The 'Discovery Rule', as the Complainant has taken recourse to by means of moving the West Bengal Medical Council and the Indian Medical Association, cannot be invoked for extending the period of limitation as the Complainant has done in the Petition of Complaint. In this context, the decision of the Hon’ble Supreme Court under Consumer Protection Act in V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, reported in AIR 2011 Supreme Court 212, is relevant.

There is no ground for condonation of inordinate delay without sufficient cause, which is absent in the case on hand, in view of the decisions of the Hon’ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, reported in IV (2011) CPJ 63 (SC), R.B.Ramlingam Vs. R.B.Bhavaneshwari, reported in I (2009) CLT 188 (SC), Ram Lal & Ors. Vs. Rewa Coalfields Ltd., reported in AIR 1962 Supreme Court 361 and Bikram Dass Vs. Financial Commissioner and others, reported in AIR 1977 Supreme Court 1221.

It is well-settled that Court cannot derive jurisdiction apart from the Statute. Law doe

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s not permit any court to usurp jurisdiction on any ground whatsoever. Civil Appeal No. 8577 of 2014, as the Complainant has referred to, having not been under the Consumer Protection Act, 1986 and the facts of the decisions the Complainant has referred to being not identical with the facts of the case on hand, those are of no help to the Complainant. The foregoing facts, evidence on records, the provisions of Section 24A of the Consumer Protection Act, 1986 and the decisions of the Hon’ble Supreme Court, as referred to above, lead to the conclusion that the instant Complaint Case is barred by limitation and hence, the instant Complaint Case is dismissed being barred by limitation.
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