Shri. P. N. KASHALKAR, Hon'ble Presiding Judicial Member :-At the stage of admission of this complaint, important point of law was raised by the Counsel for the O.P. It was pertaining to the fact whether the complaint has been filed within limitation. Since, it was very important issue germane to the maintainability of the complaint, we allowed both the parties to file affidavits in that behalf. 2. We heard Mr. J. Rodrigues, Advocate for the complainant and Mr. A. I. Talegaonkar, Advocate @ Mr. U. B. Wavikar, Adv. for the O.P. in extenso. 3. It was submitted on the part of the D.P. Dr. Shrikhande that in the complaint filed by complainant Mrs. Anita Fernandes, she had levelled charges of medical negligence against him for the operation Dr. Shrikhande had performed on 26-11-1993 where Dr. Shrikhande had operated her for Gall Bladder ailment and ultimately she was discharged from the Hospital on 30-11-1993. According to her on 25-10-2002 she was again operated at Lilawati Hospital, Mumbai and in the said operation, in her abdomen mass-lesion gauze was found left by the O.P. and it was detected only at the time of second operation and therefore she asserted that there was medical negligence on the part of the O.P. while performing operation of gall-bladder on 26-11-1993. 4. O.P. invited our attention to Para 8 of her complaint and submitted that in the said Para, she clearly mentioned that after discharge from his Hospital on 30-11-1993, the complainant was having pain in her abdomen, which still persisted as on and off and it was giving unrest to the complainant at home and at the place where she worked. (She worked as 'Nurse' in Governmental Hospital, at Goa). She also pleaded in Para 8 that her suffering was endless. She had to spend sleepless nights and mental strain for about nine years and when the pain became unbearable by the passage of time, the complainant got admitted in the Government Hospital at Goa in September, 2002 and after C.T. scan abdomen plain contrast of complainant on 23-09-2002, Doctors of Government Hospital, Goa gave opinion that a well defined rounded mass showing predominantly peripheral enhancement was seen in relation to the left lobe of liver and therefore Doctors suggested for evaluation of FNAC. She then came to Mumbai and ultimately after conducting tests at Lilawati Hospital, she was operated and in that operation dated 25-10-2002 Doctors found that there was gauze left by the O.P. in the abdomen of the complainant due to medical negligence and therefore she filed consumer complaint. 5. The Learned Counsel for the O.P. Mr. Talegaonkar has vehemently submitted that the complaint as filed by the complainant is hopelessly time barred. The cause of action accrued on 26-11-1993 when O.O. Dr. Shrikhande operated the complainant lady in his Nursing Home at Dadar, for her gall bladder ailment. She was discharged on 30-11-1993 by the O.P. If there was any endless sufferings to the complainant, if she was spending sleepless nights, if she was suffering unbearable pain, Advocate Talegaonkar submitted what prevented her from approaching O.P. immediately after 30-11-1993. He brought to our notice the fact that in one letter, which Dr. Shrikhande wrote, (which is at page-44 dated 31-10-2003) he mentioned that he felt sorry that Mrs. Anita Fernandes had not furnished him any information, which he had requested and which he was hoping to get from her. He mentioned in the said letter addressed to the complainant that- “I cannot imagine my patient having undergone surgery, suffering some discomfort not coming back to me. At the time of discharge I give specific instructions to every patient to meet me write to me or at least phone me in case of any problem and it has been my policy that they receive prompt attention. This is a universal practice expected and accepted by all. I havein the past received your season's greetings. However, you have not met me even once after your discharge from the hospital in November. 1993. All of a sudden after a lapse of 9 years for the first time, you inform me about your surgery at Lilawati Hospital." 6. In the light of this fact, it is clear that Mrs. Anita Fernandes did not send to Dr. Shrikhande the requested papers, which would have thrown light on her suffering because of operation performed by him on her on 26-111993. At the time of arguing, this Commission persistently requested the Advocate for the complainant to produce before us the medical papers showing that from November, 1993 till she was operated in Lilawati Hospital by Dr. Shrikhande the requested papers, which would have thrown light on her suffering because of operation performed by him on her on 26-111993. At the time of arguing, this Commission persistently requested the Advocate for the complainant to produce before us the medical papers showing that from November, 1993 till she was operated in Lilawati Hospital by Dr. P. Jagannath on 25-10-2002, she was taking treatment for endless sufferings, sleepless nights and unbearable pains. Not a single paper was produced before us. He could not give us even names of tablets, which complainant was consuming to control her unbearable pains in the abdomen. So, she had no papers to show that from 30-11-1993 when she was discharged from O.P.'s Clinic till 25-10-2002 she was suffering in this fashion as has been pleaded by her in Para 8 of her complaint. The complainant amended her complaint and inserted Para 17 A and pleaded that in between first operation dated 26-11-1993 conducted by the O.P. and second operation dated 25-10-2002 conducted in Lilawati Hospital, Mumbai, the complainant did not do any other operation anywhere else in the Hospital. By this amendment, she simply wants to suggest that whatever found in the operation she underwent at Lilawati Hospital was because of medical negligence committed by Dr. Shrikhande when she was operated by him on 26-11-1993. In Para 19 she stated that cause of asction to file complaint arose on 25-10-2002 on which day by her operation in Lilawati Hospital, the complainant for the first time discovered or came to know that a gauze was left in her abdomen due to medical negligence on the part of the O.P. However, from November, 1993 till September, 2002 there is no material on record to show that she was suffering because of first operation done by Dr. Shrikhande in his Clinic on 26-11-1993. Unless she establishes continuous suffering from 30-111993 till 25-10-2002, she cannot be heard to say that she was having endless sufferings, unbearable pains and she spent sleepless nights through out these years and ultimately she was admitted in Government Hospital, Goa and then on their suggestion she got herself admitted in Lilawati Hospital, Mumbai where she was operated by Dr. Jagannath· for Exploratory Laparotomy and that in the operation, gauze was detected. Jagannath· for Exploratory Laparotomy and that in the operation, gauze was detected. Thus, we are of the view that the period between the first operation and the second operation is not covered by any documentary evidence and her say that she was suffering all the way because of first operation till second operation performed by Dr. Jagannath is simply not proved by any material on record. On the other hand, it has been mentioned by Dr. Shrikhande in his letter dated 31-01-2003 at page-45 that he had in the past received season's greetings, which would clearly show that she was fully satisfied with the successful operation done by Dr. Shrikhande on 26-11-1993 at his Clinic at Dadar. After discharge on 30-11-1993 she never complained to Dr. Shrikhande about failure of operation performed by him and about unbearable pain she was suffering because of after effect of failed operation. 7. In our anxiety to go to the root of the matter, we also perused the Case Summary of Dr. P. Jagannath, Chairman of Department of Surgical Oncology of Lilavati Hospital, which is at page-34. It is covering the hospitalisation and operation of complainant in Lilavati Hospital. She was admitted on 23-10-2002 and discharged on 01-11-2002. In the first para, it has been mentioned by Dr. P. Jagannath that Mrs. Anita Fernandes, 46 years old female, non-diabetic and non-hypertensive was asymptomatic and she was detected to have a left liver mass since 15-20 days. She had undergone Open Cholecystectomy in 1993. She underwent Exploratory Laparotomy with Excision of Intra-abdominal mass with wedge excision of liver under GA on 25-10-2002. He mentioned under caption- "Findings:- E/o circumferential massin lesser sac involving under surface of left lobe (Segment 3 of liver and along lesser curve of stomach extending posteriorly to involve the anterior surface of Pancreatic head. Mass freed of the pancreas by division of adhesions and from the lesser curve of stomach by successive ligation and division of vessels and mass was freed of lessor curve with No.55 linear cutter to divide lesser curve of stomach. Round ligament was divided. Wedge of liver, Segment 3, was excised with CUSA, Haemostasis checked. Drain kept in Morrisson 's pouch. Abdomen was closed in layers. Post-operative: She had a smooth and uneventful recovery." 8. So, this is the case summary about ailment of complainant noticed by the Surgeon who had operated Mrs. Round ligament was divided. Wedge of liver, Segment 3, was excised with CUSA, Haemostasis checked. Drain kept in Morrisson 's pouch. Abdomen was closed in layers. Post-operative: She had a smooth and uneventful recovery." 8. So, this is the case summary about ailment of complainant noticed by the Surgeon who had operated Mrs. Anita Fernandes in Lilavati Hospital between 23-10-2002 to 01-112002. No where in this case summary Dr. P. Jagannath had ever stated anywhere that gauze was found, which was referable to previous operation conducted by Dr. Shrikhande in the year 1993. In fact he mentioned specifically that the complainant was detected to have a left liver mass since 15-20 days. It is material observations recorded by Dr. Jagannath who conducted surgery on her in the year 2002 in the Lilavati Hospital. So, he conducted surgery for a particular mass found on the left liver, which was detected since 15-20 days. This will clear mean that no substance/no gauze was found in the abdominal operation or gall bladder operation, which could be referred to the operational deficiency in service on the part of Dr. Shrikhande, who conducted the operation on complainant in the year 1993. On the basis of this report of Dr. P. Jagannath, who conducted operation on the complainant in· the year 2002, it can be well established that there was no medical negligence on the part of Dr. Shrikhande when he operated the complainant in the year 1993 in his Clinic at Dadar. 9. Besides as mentioned above, the complainant did not produce any prescription, any treatment for the 10 years preceeding 25-10-2002 to show that she was all the way suffering from unbearable pain, having sleepless nights and was unable to perform her duties as Nurse in Government Hospital, Goa. If a person like complainant was having such a pain and suffering of the magnitude tried to be exhibited in her pleading that would clearly suggest that she was required to be bed ridden. She was required to take so many medicine and tablets and she was unable to perform day-to-day routine duty as such Nurse employed in the Government Hospital at Goa. No record has been produced before us to show that all the way she was on long leave because of suffering of pain. She was required to take so many medicine and tablets and she was unable to perform day-to-day routine duty as such Nurse employed in the Government Hospital at Goa. No record has been produced before us to show that all the way she was on long leave because of suffering of pain. So, virtually there is no evidence worth the name to prove her allegations in the complaint that because of operation conducted by Dr. Shrikhande in the year 1993, she suffered so much pain and hardships and other than bare ,words mentioned in the complaint, we are not finding any supporting document in that behalf. In the result, we are finding that there is virtually no evidence or document to prove that after 1993 till she was operated in the Lilavati Hospital in the month of October, 2002, she was having mental agonies, physical ailment of the magnitude she demonstrated in Para 8 of the complaint. This is being so, the operation performed in the Lilavati Hospital by Dr. Jagannath cannot be said to be operation necessitated because of operation conducted by Dr. Shrikhande in the year 1993 on the complainant. This is being so,. period of limitation for any case of medical negligence against Dr. Shrikhande would commence or would have to be computed from the date of discharge i.e. 30-11-1993. So, this complaint is filed after more than 10 years and there is no delay condonation application filed by the complainant giving just and reasonable cause for not filing complaint in the year 1995 i.e. within two years from the date of accrual of cause of action. 10. In the course of argument the Learned Counsel of O.P. cited ruling of Orissa High Court in the case of Radhakirshna Das Vs. Radharamana Swami & Anr., reported in AIR (36)1949 Orissa 1, in support of his contention that in case of a bodily injury there is no continuing wrong as the injury ceases though the injurious effect may persist. The Orissa High Court further laid down that effect of damage may continue but this does not extend the time of limitation. So, assuming for a moment that there was any negligence on the part of the O.P., negligence occurred in the year 1993 itself. So, within two years she should have filed complaint and not after 10 years or more than that. So, assuming for a moment that there was any negligence on the part of the O.P., negligence occurred in the year 1993 itself. So, within two years she should have filed complaint and not after 10 years or more than that. In yet another case, Bombay High Court in the case of Abdulla Mahomed Jabli Vs. Abdulla Mahomed Zulaikhi, reported in AIR 1924 Bombay 290, laid down that Malfeasance is complete when act is done and not when consequences follow. When sulphuric acid was thrown at the plaintiff and injury was caused to his eye, it was held that the act of malfeasance was complete at the time when the vitrol was thrown on the plaintiff's face and subsequent consequences were no part of the cause of action. This was the observation of Justice Shah & Justice Crump. In the same ruling, Acting Chief Justice Shah observed as follows:- "where sulphuric acid was thrown at a person and injury was caused to his eye therefrom the continuance of its effect at a later date was not held to be continuing wrong within the meaning of Section 23 of the Limitation Act." 11. So, wrong was completed in our case when Dr. Shrikhande performed operation on complainant. Its consequence might have spilled over more than 10 years as the complainant's case appears to be. But medical negligence was completed at the moment she was discharged from the Clinic of Dr. Shrikhande on 30-11-1993. 12. Andra Pradesh High Court in the case of Kuchibotha Kanakamma & Anr. Vs. Tadepalli Ranga Rao & Ors., reported in (5) AIR 1957 Andh. Pra. 419 (Y 44 C 132 Sept.) also held that continuing wrong is one thing and continuance of effect is another thing. If A tortiously causes bodily injury to B, the wrong is complete the moment the injury is done, though the effect of the injury might last during the life-time of B. This is not a case of continuing wrong. 13. In the case of Ashok Kumar Vs. HVPNL, in Revision Petition No.2696/02 decided on 25-04-2003, the National Commission while considering the question of condonation of delay held that Section 5 of Limitation Act is not applicable for condonation of delay, but Section 24-A of Consumer Protection Act, 1986 which is applicable. 13. In the case of Ashok Kumar Vs. HVPNL, in Revision Petition No.2696/02 decided on 25-04-2003, the National Commission while considering the question of condonation of delay held that Section 5 of Limitation Act is not applicable for condonation of delay, but Section 24-A of Consumer Protection Act, 1986 which is applicable. State Commission condoned the delay merely on the statement "for reasons stated in the application filed under Section 5 of Limitation Act", which amounted to non-application of mind resulting in miscarriage of justice. The National Commission further held that it is not the law that irrespective of any sufficient cause delay is to be condoned when particularly valuable right has accrued to the consumer who is pitted against might of the State Authority. 14. Thus acting on all these ruling, we are firmly of the view that this complaint is absolutely and clearly barred by limitation and since there is no application for condonation of delay, complaint will have to be dismissed at the stage of admission itself on that sole ground. 15. The Counsel for the complainant also cited ruling of our Apex Court. It was held by the Apex Court in the case of Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors. in Civil Appeal No.3318/ 1979 decided on 20-02-1996, that as a result of the second operation, Dr. Divan found that a mop (towel) had been left inside the body of Chandrikabai when sterilisation operation was performed on her. It was found that there was collection of pus and the same was drained out by Dr. Divan. Thereafter, the abdomen was closed and the second operation was completed and ultimately the lady died. In this particular case. the Trial Court had awarded decree of Rs.36,000/-. The High Court in Appeal reversed the findings and the Supreme Court allowed the appeal and set aside the order of Bombay High Court and restored the decree of the Trial Court, because the Supreme Court found that but for leaving of the mop inside the peritoneal cavity, it would not have been necessary to have the second operation on deceased lady. However, this ruling is not applicable to our complaint for the simple reason that Dr. However, this ruling is not applicable to our complaint for the simple reason that Dr. Jagannath in his Case Summary did not notice that whatever found at the left lobe of the liver at the time of second operation was because of something left behind by Dr. Shrikhande in the complainant's previous operation. So, this ruling is not applicable to the facts and circumstances of our case. 16. Another ruling is cited by the complainant's Advocate of Madhya Pradesh State Consumer Commission, Bhopal. In the case of Smt. Beti Bai Saxena Vs. Dr. S. L. Mukherjee & Ors., reported in 2001(2) CPR 163, the State Commission found that the complainant was operated by respondents for removal of bony growth in right hip joint on 2808-1992. No relief was found in pain. Second operation was done by another Doctor on 1604-1993 and a moping gauze piece was found inside the wound which was removed in terms of second operation and complainant recovered. Affidavit of second doctor proved that gauze piece was found, sinus was formed and pus was coming out of wound. In this particular set of facts, it was held to be the case of medical negligence and complainant/appellant was held entitled to Rs40,168/- and some other amount by the State Commission. However, even this ruling is not applicable to our case. In our case, in the Case Summary, Dr. Jagannath nowhere mentioned finding of mop/gauze attributable to the deficiency in service rendered by Dr. Shrikhande in his first operation he performed on the complainant in the year 1993. Moreover in the instant case, after first operation no relief was found in pain is the observations based on evidence and the second operation was done within less than one year and therefore that was clear-cut case of medical negligence and the Learned State Commission rightly decided the case being the case of proved medical negligence. In our case the facts are altogether different and therefore said ratio is not applicable to our facts. 17. In the totality of the consideration, we are of the firm view that this complaint is clearly barred by limitation. Hence, we pass following order:- ORDER: 1. Complaint is dismissed in limine at the stage of admission since it is clearly barred by limitation. 2. No order as to costs. 3. Copies of the order be furnished to the parties. Complaint dismissed.