ORIENTAL INSURANCE COMPANY LTD vs Meera Devi

-APPELLANT was the opposite party before the State Commission, where the respondents had filed a complaint alleging medical negligence on the part of the appellant.

UNDISPUTED facts of the case are that the second respondent''s wife was pregnant with the fourth child and when they contacted the appellant, he advised to undergo tubligation for ''family-planning'' purposes for which the deceased was got admitted in the hospital of the appellant where the surgery was done on 1. 4. 1998 but within few hours, it was noticed that the kidney was damaged after which she was shifted to kidney hospital, where she expired on 4. 4. 1998. It was the case of the complainant that admittedly, the ''family-planning'' operation was simple but on account of negligence on the part of the appellant, the deceased died. It is in these circumstances that a complaint was filed before the State Commission, who after receiving the complaint, affidavit in evidence and cross-examination of the second complainant went on to pass the orders holding the appellant guilty medical negligence and directing him to pay Rs. 2,50,000 to the second respondent Lalitbhai Maganbhai Rathod, along with cost of Rs. 3,000 to be shared between the two respondents. Aggrieved by this order this appeal has been filed before us. There is an application for condonation of delay of 388 days, filed by the appellant. The only reason given for condonation of delay is the ''state of depression'' caused to the appellant on account of the judgment of the State Commission. We see no material on record about the treatment for depression, administered by any physician or neuro-physician to the appellant, in view of which we find that sufficient ground has not been advanced by the appellant to condone the delay. In our view, we are further strengthened by the objections filed by the respondent/second complainant before us, in which it is clearly stated that as early as on 9th October, 2006, the appellant appeared before the State Commission in response to the notice issued by the State Commission in exercise of power under Section 25 of the Consumer Protection Act, 1986. The State Commission directed him to deposit Rs. 1,21,000 before the State Commission, which was not done. Subsequently, a bailable warrant and again non-bailable warrant issued against the appellant yet he did not present. Finally, when the order of execution was served through the Police Commissioner''s Office, even arrested and produced before the State Commission, and wherein he was released on bail on 26. 5. 2007 with a direction to deposit Rs. 25,000 before 20th June, 2007, but even this was not done. Finally as late as on 7. 7. 2007 an amount of Rs. 50,000 has been deposited. Neither on the application for condonation of delay nor in the Memo of Appeal, a single word has been said about the delinquent conduct of the appellant, more so without any medical support of the appellant''s being in depression. In these circumstances, we see no ground to condone the delay - hence application for condonation of delay stands dismissed and hold the appeal to be barred by limitation.

Even on merit, we see that the State Commission has taken pains to observe, that while written version was filed by the appellant but he did not file any affidavit by way of evidence nor did he bring on record any case paper, ''investigation'' reports and ''operation'' notes. Several opportunities and notices were given to the appellant to present himself for cross-examination for which he did not appear. Thus, based on the material on record and the evidence including the cross-examination of the complainant, the State Commission has passed the order based on material on record. As per the material on record, the surgery was carried out on 1. 4. 1998 and within few hours the deceased complained about the pain in abdomen. As per the appellant, he consulted Dr. Nayan Patel, who immediately advised blood-test and Sonography and the same was done. It is Dr. Nayan Patel who diagnosed trouble in kidney. The blood-test report revealed that urea and createnin were increasing for which patient was shifted to kidney hospital and was admitted there.

WE are unable to appreciate as to on the one hand the stand is that the reports of blood and Sonography were normal and yet it is stated that the blood test report revealed that urea and creatinin were increasing. It is on record that when the deceased reached the kidney hospital, she had problems in kidney as also developed ''septicaemia '' and the cause of death was stated to be "acute Renal Failure and Septicaemia. " The earlier surgery had been done by the appellant and septicaemia could have developed only therein. Even before us, not a scrap of paper of the appellant''s hospital had been produced. As per record there is no prayer even before us to file affidavit in evidence as per provision of Section 13 of the Consumer Protection Act, 1986 as also there is no prayer for presenting the appellant for any cross-examination. Moreover there is no record of the Hospital of surgery or treatment given for the period when the deceased was in the appellant''s hospital, before us. In these circumstances, what the complainant has said in his complaint duly supported by affidavit by way of evidence and his cross-examination remain un-rebutted. If in these circumstances and based on material on record, the State Commission has held the appellant guilty of medical negligence, no fault can be fastened in this conclusion, which is as per settled law.

IN view of above discussion, we find that the complaint is barred by limitation as well as there is no merit in the appeal filed by the appellant,. which is dismissed. Appeal dismissed.