TMI Blog2010 (10) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; on 26.11.1993. The respondent was discharged from the appellant's hospital on 30.11.1993. 4. For the next about 9 years, the respondent neither contacted the appellant nor consulted any other doctor despite the fact that after the surgery she was having pain in the abdomen off and on, for which she was taking painkillers and she had to remain on leave at regular intervals. In September, 2002, the respondent was admitted in the hospital and C.T. scan of her abdomen was done on 23.9.2002, which revealed the following: A well-defined rounded mass showing predominantly peripheral enhancement is seen in relation to the left lobe of liver as described above. This is more likely to be an exophytic neoplasm from the undersurface of left lobe of liver than a pancreatic lesion. Further evaluation of FNAC is suggested. 5. On being advised by the doctors in Goa, the respondent got herself admitted in Lilavati Hospital at Bombay and was operated by Dr. P. Jagannath on 25.10.2002. The relevant extracts of the report of Dr. P. Jagannath are reproduced below: Findings E/o circumferential mass in lesser sac involving under surface of left lobe (Segment 3) of liver an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent but denied the allegation of negligence. In his letter dated 31.1.2003, the appellant emphasized that he had performed thousands of operations in his long career of about 50 years and there was no cause of complaint from any patient. He claimed that at the time of discharge, every patient was given instruction that in case of any problem, he/she should meet him or write a letter or at least contact on phone but the respondent never apprised him of her problem, though, she was sending seasons greetings. The appellant also made a grievance that despite his request, the respondent had not made available papers relating to the investigation and treatment in Goa and Mumbai from November, 1993 to September 2002. 8. Having failed to elicit favourable response from the appellant on the issue of compensation, the respondent filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, `the Act'), which came to be registered as Complaint Case No.116 of 2004 and claimed compensation of ₹ 50 lakhs by alleging that due to negligence of the appellant, a mass of gauze was left in her abdomen at the time of first operation; that after discharge from the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay High Court in Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi, AIR 1924 Bombay 290 and of this Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 and argued that the discovery of gauze pieces from the mass taken out of the abdomen of the respondent in September, 2002 did not give her fresh cause to file complaint after a time gap of 9 years. Shri Sorabjee emphasized that if the respondent had contacted the appellant or any other doctor immediately after the first operation or within a reasonable time thereafter, effort would have certainly been made to find out the cause of pain in her abdomen and in the event of discovery of the piece of gauze appropriate action could have been taken to remove the same. 12. Shri Devadatt Kamat, learned counsel for the respondent supported the impugned order and argued that the consumer forums established under the Act do not have the power to dismiss the complaint at the stage of admission and, in any case, the complaint of the respondent should not have been dismissed by the State Commission as barred by time ignoring that she had suffered for 9 long years due to negligence of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r rejected: Provided that a complaint shall not be rejected under this sub-section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. (4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act: Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force. Explanation.- For the purposes of this section, recognised consumer association means any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or any other law for the time being in force. 18. Procedure applicable to State Commissions.- The provisions of sections 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so. Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I) (2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another (2009) 7 SCC 768. Section 26 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 25.10.2002 i.e. the date on which she was operated at Lilavati Hospital and a piece of gauze was found in her abdomen. 17. Since, the term `cause of action' has not been defined in the Act, the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and object of the legislation. In his famous work on statutory interpretation, Justice G.P. Singh has quoted Professor H.A. Smith in the following words: `No word', says Professor H.A. Smith `has an absolute meaning, for no words can be defined in vacuo, or without reference to some context'. According to Sutherland there is a `basic fallacy' in saying `that words have meaning in and of themselves', and `reference to the abstract meaning of words', states Craies, `if there be any such thing, is of little value in interpreting statutes'. ... in determining the meaning of any word or phrase in a statute the first question to be asked is -- `What is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient's body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient's body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed: It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had `accrued' to the plaintiff until the X-ray examination disclosed a foreign object within her abdo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff's body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by X- ray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed: The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmony with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff's body, is patent. It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had `accrued' to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years. This is clearly borne out from the averments contained in paragraph 8 of the complaint, the relevant portion of which is extracted below: .............Even after discharging the complainant from the hospital the pain in the abdomen still persisted as on and off and it was giving unrest to the complainant again at home and at the place where she worked. The sufferings of the complainant were endless, had to spend sleepless nights and mental strain for almost nine years and as the pain became unbearable by the passage of time, the complainant had to be admitted in the Government Hospital in Goa in September, 2002................. A similar statement was made by her in the affidavit filed before the National Commission, paragraphs 2 and 3 (two paragraphs have been marked as 3) of which read as under: 2. I say that to arrest the pains, sufferings and mental strains during the period of nine years I was taking tablets and their names are as follows: Tablets CYCLOPAM BRUFEN -400mg CROCIN DICLO FENAC 3. As a nurse in the G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
