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2011 DIGILAW 1524 (SC)

Bhupinder Kaur v. Patel Hospital (P) Ltd.

2011-12-13

G.S.SINGHVI, SUDHANSU JYOTI MUKHOPADHAYA

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ORDER : Leave granted. 2. The appellant, who became paraplegic due to the alleged negligence of the respondents has been forced to file this appeal because the State Consumer Disputes Redressal Commission, Punjab [for short, 'the State Commission') and the National Consumer Disputes Redressal Commission [for short, "the National Commission") declined to condone the delay in filling of the complaint under Section 17 of the Consumer Protection Act, 1986 (for short, 'the Act'). 3. While she was doing Diploma in Junior Nursing, the appellant developed swelling in the neck. She was admitted in Patel Hospital, Jalandhar (respondent no. 1) in 1998. Respondent no. 2 - Dr. S.L. Sharma, who was working in that hospital performed surgery on the appellant on 7.7.1998. She was discharged from the hospital on 9.7.1998. After about 14 months, the appellant developed nodule in the right lobe of thyroid. On being advised by the doctors of respondent no. 1-hospital, the appellant underwent certain tests only to learn that there was multiple swelling in thyroid and secondary form of thyroid carcinoma. She was then referred to Mohan Devi Oswal Cancer Treatment and Research Centre, Ludhiana. From there, she was sent to PGI Chandigarh. In April, 2000, the appellant was examined by respondent Nos. 3 and 4 at Indraprastha Apollo Hospital, New Delhi. On 11.4.2000, another surgery was performed by respondent No.6 - Dr. Sameer Kaul. She was discharged from the Apollo Hospital on 17.4.2000. On follow up, she was advised to come for whole body scan i.e. scinitgraph which was done by respondent No.7, Dr. Usha Ravishankar on 25.5.2000. She was again admitted in Apollo Hospital on 31.5.2000. This time she was examined by respondent No.8, Dr. Sanjeev Nand. After an unsuccessful surgery, she was discharged on 25.6.2000 in a paraplegic condition. In July 2000, she was admitted in Munilal Chopra Hospital, Amritsar. There she was operated upon by Dr. Raj Kumar. From March, 2003 to April, 2004, the appellant was treated at Munilal Chopra Hospital, Amritsar but there was no improvement in her condition. 4. Having suffered the agony of undergoing various surgeries, which did not improve her condition, the appellant filed complaint under Section 17 of the Act before the State Commission, which came to be registered as Original Complaint No.13/2004. She prayed for award of compensation of rupees one crore by alleging that the respondents were negligent in treating her. 4. Having suffered the agony of undergoing various surgeries, which did not improve her condition, the appellant filed complaint under Section 17 of the Act before the State Commission, which came to be registered as Original Complaint No.13/2004. She prayed for award of compensation of rupees one crore by alleging that the respondents were negligent in treating her. Along with the complaint, the appellant filed an application for condonation of delay. In paras 2 and 3 of the application, the appellant made the following averments: "2. That after complainant was treated in O.P. 1 hospital for the last time in Jan. 2000, where earlier O.P. 2 operated upon her on 7.7.1998 negligently without proper investigations and requisite follow-up, for excision of nodule in her neck, and subsequently after re-occurrence of the same, she again went to O.P.1 where doctors after investigations, diagnosed her to be suffering from malignant disease of thyroid, thus referred her to Mohan Devi Oswal Cancer Treatment & Research Foundation, Ludhiana in Jan., 2000. From there at Ludhiana, and then at PGI, Chandigarh, from where she landed in O.P.3 on 7.4.2000, where again she was negligently treated till 25.06.2000 by O.Ps. 4 to 8 and other staff of the hospital, when she was discharged in very pathetic bed ridded and crippled condition having paraplegia. From O.P.3, complainant/applicant was taken in ambulance at Amritsar at Sanjivani Hospital, and then referred to Shri Muni Lal Chopra Hospital on 1.07.2000. Though all the times she is very depressed and bed ridden and catheterized, she was operated on her spine on 2.07.2000 by Dr. Raj Kamal, M.Ch Neurosurgery at Sh. Muni Lal Chopra Hospital, Amritsar and she was discharged on 18.07.2000 in still bed ridden condition, and was having metastatic carcinoma at that stage. Then she was given radiotherapy at Guru Ram Das Hospital at Amritsar where she developed complication, and was again admitted in Sh. Muni Lal Chopra Memorial Hospital, Amritsar on 6.8.2000, to be discharged on 6.8.2000. Subsequently, on follow-up at Sh. Muni Lal Chopra Memorial Hospital, Amritsar, she was very depressed all the time, and is still suffering from metastic carcinoma, and then developed Reflex Sympathetic Dystrophy Syndrome. All the time bed ridden, again in the year 2003, she was admitted in Sh. Muni Lal Chopra Memorial Hospital, Amritsar on 20.3.2003 with further complications, where metastasis of cancer was still found. She was discharged on 10.04.2003. All the time bed ridden, again in the year 2003, she was admitted in Sh. Muni Lal Chopra Memorial Hospital, Amritsar on 20.3.2003 with further complications, where metastasis of cancer was still found. She was discharged on 10.04.2003. Mother of complainant/applicant, who is settled with her two sisters living in Hong Kong, had to come back to support and look after the complainant, unfortunately met with an accident in the year 2003 in which she lost her one leg, thus had to go back to Hong Kong, which further made more hardships for the complaint resulting into severe depression again. On 6.4.2004 again, complainant was admitted in Sh. Muni Lal Chopra Memorial Hospital, Amritsar, with further complications of the ongoing disease entity, and was discharged on 7.4.2004. Father of the complainant, who is a pensioner, cannot give proper financial support, as he has two more younger children to support who are college going. The present status of the complainant is miserable as that after extensive physiotherapy, she could get only little improvement in paraplegic status, and is very depressed all the time, crippled and bed ridden, and even have to ease out on bed itself, and is on permanent cathetarisation for passing out urine which is a source of permanent infection. 3. That since treatment of complainant was last done by doctors at O.P. 1 in Jan., 2000, and in O.P.3 in June, 2000, and the complaint could not be filed earlier due to pathetic and bed ridden condition of the complainant, which is still continuing. The complaint could not be filed earlier as the in addition to very depressed circumstances of complainant all these years, her condition was very volatile as detailed in the complaint as well as explained in the proceeding paragraphs, that she was having various stincts of hospitalization due to the complications of the ongoing problems, and then serious accident of her mother who was there to look after her, thus she was not even in a position to concentrate on, and reconcile with the events which took place during the course of her ailment till date. Now, her condition has become a bit stable, though still she is bed ridden, and further during the course of treatment till date, and various discussions with treating doctors and consulting other literature in regard to multiple problems complainant faced, she came to know of the negligence on part of O.Ps. while treating her. With great difficulty, complainant happen to get reference of her present counsel in the month of middle of June, 2004. And after deliberations with counsel, Sh. Updip Singh, Advocate on telephone a number of time, and after many courses of discussions with him at present residence of complainant, a ray of hope came for getting justice, and thus the matter was prepared by the counsel as per instructions of complainant who took about ten days to prepare the papers/pleadings for the said purpose and since the papers of complaint are complete today on 11.07.2004, thus the complaint is being filed now." Respondent Nos. 1 and 2, 3 to 8 and 9 contested the appellant's prayer for condonation of delay by asserting that the cause shown in the application was not satisfactory. 5. The State Commission negative the appellant's prayer for condonation of delay by observing that the appellant had not produced evidence to substantiate her assertion that she had become paraplegic and was bedridden for the last more than 4 years. State Commission laid undue emphasis on the fact that the other cause put forward by the appellant, namely, the injury suffered by her mother in an accident which occurred in 2003, applied the antiquated rule of sixties that each day's delay is required to be explained by a person seeking condonation of delay and dismissed the application for condonation of delay. 6. The National Commission held that in the absence of any explanation for the long time gap between 2000 and 2003, there was no warrant for condonation of more than 2 years delay. The National Commission also adversely commented upon the quantum of compensation claimed by the appellant and dismissed the appeal filed against the order of the State Commission. 7. We have heard learned counsel for the parties and carefully scrutinised the record. The National Commission also adversely commented upon the quantum of compensation claimed by the appellant and dismissed the appeal filed against the order of the State Commission. 7. We have heard learned counsel for the parties and carefully scrutinised the record. In our considered view, the discretion exercised by the State Commission to decline the appellant's prayer for condonation of delay was vitiated by a patent error of law and the National Commission committed serious error by confirming the order of the State Commission. The appellant's assertion that she had become paraplegic in 2000 was supported by her own affidavit. The respondents did not controvert her assertion and the fact that for all these years, she was bed ridden. Therefore, the State Commission was not at all justified in refusing to condone the delay. What is most astonishing is that both the State Commission and the National Commission found it convenient to overlook the fact that neither of the respondents had controverted the appellant's assertion that she had become paraplegic and was bedridden since 2000. We may add that while dealing with applications for condonation of delay the Consumer Foras must not apply the hypertechnical rule evolved by the Courts many decades ago and should keep in mind the parameters laid down by this Court in Collector, Land and Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 . 8. In the result, the appeal is allowed, the impugned order as also the one passed by the State Commission are set aside and delay in filing the complaint is condoned. The State Commission shall now decide the appellant's complaint on merits. 9. Since the matter is more than seven years old, we direct the State Commission to decide the complaint within a maximum period of six months from the date of communication/production of this order. Appeal allowed.