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Max Super Speciality Hospital Unit of Balaji Medical & Diagnostic Research Centre v/s Pramod Goel & Others

    First Appeal No. 2310 of 2017 Complaint No. 121 of 2012

    Decided On, 16 January 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE DR. S.M. KANTIKAR
    By, PRESIDING MEMBER & THE HONOURABLE MR. DINESH SINGH
    By, MEMBER

    For the Appellant: K.G. Sharma, Advocate. For the Respondents: R1, R2, R4, R6, Nemo, R3, Siddharth Aggarwal, Advocate.



Judgment Text

1. Heard learned Counsel for the appellant-opposite party No. 2 (doctor) and the respondent No. 3, and perused the material on record. None is present for the respondent Nos. 1 and 2 and for the respondents Nos. 4 to 6.

2. This is a case of alleged medical negligence, which resulted in the amputation of the thumb and two fingers of the patient’s right hand.

3. The complaint has been filed by the patient (complainant No. 1) and the wife of the patient (complainant No. 2).

4. The present first appeal has been filed against an interim Order dated 23.8.1017 of the State Commission.

5. The State Commission vide its said Order dated 23.8.2017 has dismissed the opposite party No. 2’s application for deletion of his name and has closed the right of the opposite party No. 2 to file his written version:

Notice not issued as complainant did not file fresh address. Today Counsel for complainant states that according to his information OP-4 had gone abroad and he does not want to proceed against OP-4. Accordingly, OP-4 is dropped.

Heard on application dated 25.04.2013 moved by OP-2 for deleting its name. The application simply recites that after perusal of complaint and all documents, OP-2 came to know there are no specific allegations against him. There is no cause of action alleged or prayed against him. Hence, his name may be deleted.

Complainant has already filed reply to the said application. Today Counsel for complainant has pointed out that paras-7, 8, 12, 20 and 21 of the complaint it contains averments against OP-2. On this Counsel for the OP-2 states that there is no single document implicating him.

Document is a part of evidence and whether case is proved or not it cannot be decided at this stage. The application is dismissed.

Since OP-2 has not filed any WS since 2013, his right to file the same stands closed.

Complainant to file evidence by affidavit within eight weeks. (Underlining supplied)

6. Without in any manner attempting to examine or adjudicate on the case on merit, we observe that the opposite party No. 2 has been averred to be a treating doctor in the complaint (referpara 5 of the complaint) and that specific allegations have inter alia been made against the opposite party No. 2 in the complaint (refer paras 5, 6, 7, 8 and 12 of the complaint).

7. The sum and substance and import of the State Commission’s Order is that whether or not a case is made out against the opposite party No. 2 would be dependent on the evidence and its appraisal. This view of the State Commission cannot be faulted.

8. We, thus, hold that the State Commission has rightly dismissed the opposite party No. 2’s application for deletion of his name.

9. We note that the application for deletion of his name was moved by the opposite party No. 2 on 25.4.2013, and that the impugned Order of the State Commission is dated 23.8.2017. In this period, of more than 4 years, the opposite party did not file his written version. The State Commission, therefore, closed his right to file written version by (rightly) observing that he has not filed his written version since 2013.

10. We are however of the opinion that this being a complaint of alleged medical negligence, before the Forum of original jurisdiction (the State Commission), it should, as far as (lawfully) feasible, be comprehensively and holistically examined on merit, with the affording of the due opportunity to all the parties involved to adduce their evidence / defence, and should also be speedily disposed of.

11. On the one hand we note that if the opposite party No. 2, averred to be a treating doctor, is not allowed to file his written version, it would compromise his defence. On the other hand we also note that the opposite party No. 2 did not file his written version for over 4 years, from 2013 to 2017, thereby impeding the comprehensive and holistic examination of the case on merit and its speedy disposal.

12. In the interest of justice, it is just and appropriate to provide one opportunity to the opposite party No. 2 to file his written version, subject to just and reasonable cos

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t. In the facts and specificities of the case, we deem a cost of Rs. 1 lakh to be just and reasonable. 13. The opposite party No. 2 is allowed to file his written version within six weeks, subject to payment of cost of Rs. 1 lakh to the complainant No. 1 – patient directly in his name by way of demand draft. 14. All parties are directed to appear before the State Commission on 20.2.2019. Disposed. Appeal disposed of.
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