O.P. SHUKLA vs DR. KUSUM DUBEY & 5 ORS.

The Appellant, O.P. Shukla filed this instant First Appeal, under Section 19 of the Consumer Protection Act, 1986 against the order of State Consumer Disputes Redressal Commission, U.P. in Complaint No. 51 of 2004, which dismissed the complaint.

The wife of complainant, Smt. Suman Shukla, since deceased (herein referred as patient) underwent removal of uterus operation (hysterectomy). It was conducted by OP-1 Dr. Kusum Dubey in the Sumita Hospital (OP-4). Expenses in the sum of Rs. 12,000/- were paid to OP-3 Dr. Sumita Shukla. The operation was conducted on 18.07.2004 with the help of Dr. D.K. Chaudhary (OP-2) and Dr. Sumita Shukla (OP-3). It is contended that the patient was healthy, before the operation. The haemoglobin was 11.04 gm and BP was 180/110 i.e. on higher side. The patient was kept under observation, till the evening, but second operation was performed due to serious condition of the patient, again, in the evening at 07:45 pm. The OP did not take any consent before re-operating. The bleeding of the patient did not stop. The pulse and haemoglobin were going down and condition became serious. About six bottles of blood were requested at the emergency hours. As the blood oozing did not stop, the patient was shifted to Harmain Hospital under care of Dr. Kayum (OP-5). The patient went on deteriorating. There was no blood bank facility or ICU. Therefore, the complainant spent around 2 lakhs, within 05 days. Therefore, alleging negligence on the part of OPs, the complainant filed complaint.

Aggrieved by the order of State Commission the appellant / complainant preferred this first appeal.

Heard the learned counsel, Mr.Nikhil Jain, for appellant/complainant, at admission stage. Counsel argued on the point of delay, that there was delay of 81 days in filing this first appeal. The appellant cited reasons in the application for condonation of delay as;

"2. That the impugned order was passed on 26.11.2014 wherein no body appeared for the appellant before the Hon''ble State Commission and the appellant was also not aware of the proceedings before the Hon''ble State Commission.

That the free copy of the order was sent to the appellant by the Hon''ble State Commission on 05.06.2015.

That the appellant thereafter contacted his lawyer at Lucknow who did not give the file to him and thereafter the appellant got he copy of the file from the State Commission and arranged some funds to approach this Hon''ble Court.

That further some time took in getting the documents translated and thereafter the present appeal is being filed with some delay."

We are not convinced with the reasons stated therein in the application. As per the decision by Hon''ble Supreme Court in a recent case titled Sanjay Sidgonda Patil vs. Branch Manager, National Insurance Co. Ltd. & Anr. Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, confirmed the order of the National Commission and refused to condone the delay of 13 days''. Likewise, delay of 78 days'' was not condoned by the Apex Court in the case of M/s Ambadi Enterprise Ltd. vs. Smt. Rajalakshmi Subramanian in SLP No. 79896 of 2013 decided on 12.07.2013. Again delay of 77 days'' was not condoned in case of Chief Off. Nagpur Hous. & Area Dev. Boa & Anr. Vs. Gopinath Kawadu Bhagat, SLP No. 33792 of 2013 decided on 19.11.2013.

On the merit, the counsel argued that, the State Commission dismissed the complaint, without appreciating the evidence. The OP-3, 4 and 6 were deleted wrongly, without any application from the complainant. Counsel further submitted that Dr. Kusum Dubey operated the patient for removal of uterus, even though she was not having any specialization. The OP had not explained about complications or hazards with removal of uterus. They have broken all the medical ethics and principles. OP had not consulted any experts. Therefore, the OP intentionally took away the life of the patient.

We have perused the medical records available on the file. As per ultrasonography report, it was a case of adenomyosis. The complainant submitted that the original medical record, written statement etc., were lost. It is pertinent to note that the record of this complaint was reconstructed on the basis of papers available with the parties. As per deposition of Dr. Kusum Dubey, she had not performed any surgery on the patient or gave any treatment to the patient, the enquiry in this regard was conducted by Chief Medical Officer, Lucknow, wherein, it was found that Dr. Kusum Dubey never performed any surgery on the patient. She was, on duty, on 18.7.2004 from 1.45 PM till 7 PM, in the Govt Hospital. Even, before a panel of four independent expert doctors, the complainant failed to prove any evidence in respect to the treatment, if any, given by Dr. Kusum Dubey. As per record, Dr. Kusum Dubey is a qualified doctor working in Government hospital Aliganj, Lucknow. As per affidavit of Dr. Mohd. Kayyum, the hospital is a super specialty hospital, where the patient was treated.

The State Commission categorically observed that;

"At the time of hearing of his complaint since no one appeared on behalf of the complainant to press on the facts of the complaint as aforesaid thereby filing any evidence in support of the facts of the case, therefore, we come to this conclusion that there is no evidence against both the aforesaid doctors, Dr. Kusum Dubey as well as Dr. Mohd. Kayum that they have even afforded any medical treatment to Smt. Suman Shukla or committed any medical negligence.

Therefore, considering all the facts and circumstances, we do not find any negligence committed by the opposite parties in the instant case. There is no merit and also there is delay as well, consequently the first appeal is hereby dismissed on merits as well as on delay. There shall be no order as to cost.