DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  27^th day of March, 2023

Present      :   Sri. Vinay Menon V.,  President

                  :  Smt. Vidya A., Member                        

                  :  Sri. Krishnankutty N.K., Member                                Date of Filing: 13/07/2018   

                         CC/88/2018

1. Sureshkumar,

       S/o. Narayanan Nair,

       Alangapetta House,

       Pottassery P.O.,  Eyyambalam,

       Mannarkkad Palakkad – 678 598     

2. Vasumathi A.,

W/o.Sureshkumar

       Alangapetta House,

       Pottassery P.O.,  Eyyambalam,

       Mannarkkad Palakkad – 678 598                             -                       Complainants

             (By Adv. K.Dhananjayan)

                                                                                    Vs

1. Proprietor / Managing Director,

Mannarkkad Nursing Home,

P.O.Mannarkkad, Palakkad – 678 582

2. Dr.Regina MBBS, DGO.,

Working as Gynaecologist,

Mannarkkad Nursing Home,

P.O.Mannarkkad – 678 582                           -                       Opposite parties

              (By Adv.V.K.Venugopal)

O R D E R

By  Sri. Vinay Menon V., President

1. The complainants allege that the 2^nd complainant underwent prenatal treatment under the second opposite party who was working in the first opposite party hospital. On 5/5/2010, the 2^nd complainant was admitted to the 1^st O.P. hospital. She gave birth to a baby boy on 06/05/2010. Eventhough the infant suckled on the first day, the infant started crying and the treating doctor directed the complainants to take the infant to a centre with better facilities. Presently the child is suffering from “Delayed Visual Maturation”, preventing the child from living life to its full extent. The condition developed due to deficiency in service on the part of the opposite parties and owing to lack of proper medical facilities.   
2. The opposite parties opposed the complaint pleadings. Their preliminary objection was based on the fact that the complaint was filed with gross delay and that the complaint was barred by limitation. Further they detailed the facts. The complainant had approached the 1^st O.P. hospital with complaint of premature rapture of membrane and ensuing leak. Caeserean Section was carried out after taking all pre-operative and pre-anesthetic checkups. The entire episode was uneventful. On 08/05/2010, the baby had two episodes of incessant crying. Considering the absence of Neo-natal ICU in the 1^st opposite party hospital, the infant was referred to a centre with higher facilities. There is no deficiency in service on the part of the opposite parties.
3. Pleadings and counter pleadings give rise to the following Issues:

1.         Whether the complaint is barred by limitation?

2.         Whether the malady suffered by the complainant was due to any deficiency in service on the part of the doctors who attended the 2^nd complainant and the infant?

3.         Whether there is any deficiency in service on the part of the 2^nd O.P.?

4.         Whether there is any vicarious liability on the part of the  1^st O.P.?

5.         Whether the complainant is entitled to any of the reliefs sought for?

6.         Any other Reliefs?

4.           (i)       2^nd Complainant filed proof affidavit and marked Exts. A1 to A5.  2^nd complainant

                        was examined as PW1.

  (ii)    Opposite party 2 filed proof affidavit.  Medical records maintained with the 1^st O.P. hospital were marked as Ext. X1.

  (iii)   Doctor who is presently treating the child was examined as CW1.

Issue No.I                                                                                                                                                                                                                                               

5.         One of the major contests was with regard to the question of delay in filling the complaint.

The complainant contented that since the child is undergoing continuous disability owing to deficiency in service on the part of the O.P.s, the case is a fit example of continuing tort and that the complaint was maintainable and not barred by limitation.

6.         The fact that the complaint is filed with delay is not in dispute. Cause of action arose at the latest by 08/05/2010. This complaint ought to have been filed at least by 08/05/2012. Complaint is filed on 13/7/2018. There is a delay of more than 6 years.

7.         In support of his contention that there is continuing cause of action when there is continuing injury, counsel for the complainant submitted a decision rendered by the Hon’ble NCDRC in Dr.Mahesh S. Bhattambre Vs. Nikhil Mahesh Rodge [2017 (4)CPR 240 (NC)], where the  Hon’ble National Commission condoned a delay of two years in filing the complaint holding that there is continuing cause of action.

8.         But in order to ascertain whether the facts and circumstances in the cited case would apply to the facts and circumstances herein, we need to look into the decision.

This is a case wherein the complainant underwent treatment for ailment of the eye in 2011. The complaint was filed only in 2014. The complaint was dismissed on the ground of limitation. In the above scenario the Hon’ble National Commission held as below:

            “8. I have perused the evidence on record of both the parties. It is pertinent to note that initially, the complainant was treated from 27.6.2011 till 15.8.2011 by the O.P. Thereafter, he was under treatment and observation of Dr.L.V.Prasad Eye Institute, Hyderabad and there he came to know that his eyes got affected. Thus, it was a cause of action continuously present till the knowledge of the complainant about alleged injury. The complaint was filed before the District Forum on 6.8.2016. Therefore, it was well within the prescribed period of limitation of two years”.

                                    A perusal of the judgment would show that this is a case in which the cause of action was present but the complainant became aware of the injury only at a very later stage. Initially the complainant was not aware of the damage to his sight. Subsequent to coming to know of the impairment, the complaint was filed within two years.

9.         Herein, we have a case where the complainants became aware of the injury suffered by the infant during 2010 itself. They had knowledge of the malady suffered by the infant.  The complainant has no case that they came to know of the condition of the child only at a later stage. Facts and circumstances of both the cases are entirely different. We cannot draw parallels between these two cases.

10.       In view of the finding above, the dictum laid down by the Hon’ble National Commission will not be of any assistance to the complainant.

11.       The complainant has also not availed the leave of the Commission as contemplated under Section 25 of the Consumer Protection Act, 1986(applicable Act). We hold that the complaint is barred by limitation of over six years.

12.       This complaint is accordingly dismissed.

            Issue Nos.2 to 6

13.       In view of the finding above, any discussions on the issues 2 to 6 would only be pedantic in nature and would not serve any practical and pragmatic use. Hence, we refrain from discussing issues 2 to 6.

14.       Parties are directed to suffer their respective costs.

                  Pronounced in open court on this the 27^th  day of March, 2023.

                                                                                                        Sd/-

                                                                                                Vinay Menon V

                                                      President

                                                             Sd/-

   Vidya.A

                       Member        

        Sd/-                                                        Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant :  

Ext.A1 series – Birth record and birth certificate of baby of Vasumathi A.

Ext.A2 series  - Copies of  10 bills   

Ext.A3 series  - 2 discharge summaries, 1 radiology report and one  Doppler report

Ext.A4 –   Inpatient bills

Ext.A5 –   2 bills  of Arogyasadana gardens

 Exhibits marked on the side of the opposite party:  Nil

 Court Exhibit:  Nil

Third party documents: 

X1 – Medical records pertaining to 2^nd complainant

Witness examined on the side of the complainant:

PW1 – Vasumathi A.

Witness examined on the side of the opposite party: Nil

Court Witness:

CW1 – Dr.T.Sreenivasan

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.