Harshita vs Aruna Kulkarni

REVISION Petition nos. 1763 - 1764 of 2010 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 24.06.2009 passed by the Uttarakhand State Consumer Disputes Redressal Commission, Dehradun ( ''the State Commission '') in Appeal nos. 96 and 111 of 2008.

THE brief facts of the case as per petitioner/ complainant is that petitioner filed a consumer complaint no. 41 of 2007 for award of compensation of Rs.4,80,000/ -, inclusive of anticipated expenses of Rs.2,00,000/ - towards future medical treatment from the respondent/ opposite parties based on the allegation of medical negligence, which was partly allowed with cost of Rs.2,000/ - and for compensation of Rs.50,000/ - per order dated 16.04.1008 passed by the District Forum, Haridwar. Petitioner felt aggrieved by inadequacy of the compensation awarded, hence, filed first appeal no. 96 of 2008, seeking enhancement of the amount of compensation and whereas, the opposite parties, namely Dr Aruna Kulkarni and Ramakrsihna Mission Sevashrama, Kankhal, Haridwar where the said lady doctor was employed filed first appeal no. 111 of 2008 challenging the legality and propriety of the impugned order and prayed for dismissal of the consumer complaint. The State Commission in their order dated 24.06.2009 has held as under: ''''12. For the reasons aforesaid, we sum -up our conclusion with the observation that opposite party No. 1 in the instant case, was possessed of requisite skill, which she professed to have possessed and that she did exercise that skill with reasonable competence and, as such, has not been negligent in performing her duty as Gyne Surgeon while undertaking the caesarean section on the complainant on 13.09.2006 plus tubectomy and helped in the delivery of female child to the complainant in good condition. The allegations of medical negligence, having not been established by any cogent evidence on record, the opposite parties were not to be saddled with any liability to pay any compensation to the complainant and the complaint was, thus, liable to be dismissed. The District Forum fell in error in recording a finding to the contrary, without proper scrutiny of the material on record, by the impugned order and the same, therefore, cannot legally be maintained. In other words, the complainant was not entitled to any compensation and the complaint as well as the appeal filed by the complainant (Smt. Harshita), are liable to be dismissed and whereas, the appeal filed by the opposite parties, is fit to be allowed.

First Appeal No. 96 / 2008 is dismissed and First Appeal No. 111 / 2008 is allowed. Order impugned dated 16.04.2008 of the District Forum is set aside and consumer complaint No. 41 / 2007 is dismissed. No order as to costs ''''.

THE State Commission in their detailed order dated 24.06.2009 as observed that: ''''6. We have heard the complainant ''s husband (Sh. Satyaprem) and the learned counsel for the opposite parties and have carefully considered their submissions in the light of the facts, circumstances and legal aspects of the case. At the outset, it need to be stated that the District Forum made an unwarranted observation that opposite party No. 1, while performing the caesarean section for delivery of the child, negligently stitched the uterus and bladder and for saving the life itself of the complainant, it is essential to have these organs separated. It appear that the learned District Forum incorrectly read the medical treatment report dated 20.01.2007 of Dr. Kamra ''s Urinary and Surgical Diseases Centre, Inder Road, Dehradun, which pertain to Cystoscopy done under general anesthesia on the complainant Smt. Harshita to find out as to whether or not the bladder has any abnormality and wherein, it has been noted that cervix is stuck to dome of bladder. Therefore, there is need to consider as to whether or not, the case set up by the complainant in her complaint regarding medical negligence on the part of the operating surgeon, stand reasonably proved by the statement of facts and medical record placed on record.

To begin with, it is of importance that the complainant was 39 years old at the time of getting herself registered at the antenatal clinic. She had a normal delivery 15 years ago followed by two spontaneous abortions and one medical termination of pregnancy and in her last pregnancy, she was delivered by a caesarean section. Her blood pressure had shown sign of fluctuation. Taking into account these factors, coupled with non -descent of baby ''s head at term, opposite party No. 1 rightly took the decision to deliver the complainant ''s child by lower segmental caesarean section (LSCS) on 13.09.2006. The surgery was done after prior consent had been given by the complainant ''s husband and the same on record, also endorses that the Gyne Surgeon shall also be free to take up any other diagnostic examination, biopsy or surgical operation, necessary for the welfare and health of the patient. This was the reason that, as averred in her affidavit by Dr. Aruna Kulkarni (opposite party No. 1), omental biopsy was taken and specimen was handed over to the complainant ''s husband, who was explained all about it. The necessity for it arose, by reason of presence of very tiny multiple white granules on omentum, suggestive of abdominal tuberculosis, not uncommon and fortunately, histopathology report of the biopsy did not show evidence of tuberculosis. In the face of the specific averment in the affidavit and the consent on record, we see no force in the submission that omental biopsy was taken without prior intimation and consent and during the process, bladder tissue was excised, resulting in bleeding and collection of blood, referred to as haematoma between the uterus and bladder. There is no dispute that the histopathology report of the biopsy did not show evidence of tuberculosis and this fact, as averred by the opposite party No. 1 in her affidavit, proved that biopsy was not taken from bladder tissue. Therefore, a false allegation was made by the complainant in her complaint. 8. Much stress has been laid on the formation of haematoma between uterus and bladder and the formation of which, has been attributed to medical negligence on the part of opposite party No. 1. There is no evidence whatsoever on record, what to say of expert evidence, as may have even remotely suggested that the collection of blood between uterus and bladder, which had been noticed after 48 hours of the surgery, was attributable to negligence during caesarean section for delivery of child. Opposite party No. 1 categorically averred in her affidavit, in support of the claim made in the written statement, that the complainant had adhesions between omentum and abdominal wall due to previous caesarean section and abdominal wall, urinary bladder was also adherent to the lower part of uterus. In the caesarean section, opposite party No. 1 had to release those adhesions for delivery of the female baby of the complainant. As stated above and as averred in the affidavit by opposite party No. 1, complainant had moderately increased blood pressure and due to presence of adhesions as additional factor, haematoma developed gradually due to capillary oozing and was, as such, diagnosed only after 48 hours of the surgery on 18.09.2006. This was, as stated earlier, was not found when USG was carried for the first time after surgery on 15.09.2006 and, therefore, we see no merit in the allegation made in the complaint and agitated before us by the husband of the complainant that the collection of blood between the uterus and bladder was result of medical negligence on the part of the opposite party No. 1 at the time of performing the caesarean section on the complainant on 13.09.2006. The inference is lent credence to by the discharge certificate; USG reports; notes and records of complainant ''s treatment; indoor patients case record; progress sheet from 12.09.2006 to 22.09.2006, the date of discharge of complainant; treatment charts of indoor lab investigation forms etc., placed on record. None of these would admit of any deviation by opposite party No. 1 from the prescribed medical norms and practices even in such cases of ''''Elderly '''' in obstetric parlance.

We also cannot lose sight of the fact that despite assurance given by the opposite party No. 1 that haematoma would get reduced gradually, the complainant and her husband insisted for discharge from the hospital on 22.09.2006 and even thereafter on 28.09.2006, when the complainant was seen in OPD, her wound was found to have completely healed and some reduction of haematoma was also observed. The complainant thereafter did not visit the opposite party No. 1 and instead opted for treatment elsewhere in Meerut at Jindal Hospital and Nursing Home in the month of October, 2006 and on being referred for ultrasonography, went through it repeatedly as per record on 04.10.2006, 12.10.2006, 23.10.2006 and 01.11.2006, which showed gradual reduction of the size of haematoma between bladder and uterus. The complainant also underwent Cystoscopy at Dr. Kamra ''s Urinary and Surgical Diseases Centre on 20.01.2007, but the report does not indicate that any abnormality in the bladder, attributable to the caesarean section, was noticed. At the risk of repetition, it may be stated that the reports of these medical centres, do not even remotely indicate that the formation of haematoma was due to medical negligence at the time of performing caesarean section for delivery of the child of the complainant on 13.09.2006 ''''.

HENCE , the present revision petition. The revision petition has been filed with an application for condonation of delay of 7 1/2 months. The reasons given for the delay are as under: After receiving the judgment passed by the consumer court, Dehradun, petitioner being a poor lady was unable to decide about filing of the present revision petition as it was difficult for her to come to Delhi, to engage a lawyer and file the petition before the Hon ''ble Commission keeping in view her financial position.

Somehow, the petitioner was able to contact a family friend who agreed to help her and with the help of the family friend, the petitioner was able to get in touch with the lawyer. Since, the petitioner had to gather lot of information and documents, she could not get the revision prepared in time and the entire process took six months resulting in delay of approximately six months. The delay in filing the present petition in neither intentional nor deliberate but due to the fact that the petitioner was unable to afford the expenses for filing the revision before this Hon ''ble Commission and also because of the fact that being a lady she could not gather relevant information and documents in time, hence, this application.

WE have heard the learned counsel for the petitioner and the respondents and have also gone through the records of the case carefully.

LEARNED counsel for the petitioner has only urged that the petitioner is living in Dehradun and she is sick and does know anyone in Delhi. Nowhere has it been mentioned in the application for condontion of delay as to when the impugned order dated 24.06.2009 was received and no names or dates have been given anywhere at all in the application. The application seeking condonation of delay is very general and vague and the petitioner and the counsel have failed to explain the day to day delay of 7 1/2 months.

AT the same time, it is also well settled that ''''sufficient cause '''' with regard to condonation of delay in each case, is a question of fact.

THE Apex Court In AnshulAggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down: ''''It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras ''''.

In BalwantSingh Vs. Jagdish Singh and Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held: ''''The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005] ''''.

INRAM Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed; ''''It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. ''''

ACCORDINGLY , we find that there is no ''sufficient cause '' to condone the delay of 7 1/2 months in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation and same is hereby dismissed. No order as to costs.