SAROJ BHANDARI vs N.S.AHALUWALIYA

THIS is an original complaint filed by the complainantSmt. Saroj Bhandari w/o Shri Rajendra Bhandari against the opposite parties who has claim compensation of Rs. 10 lacs for deficiency in service alleged against the Medical Practitioners who are in the array of parties as opposite parties Nos. 1 to 4.

ON 26.4.1986 the complainant approached opposite party No. 2-Dr. Kumud Bhagwat for treatment of her complaint of pain in the abdomen. The opposite party No. 2 got the complainant admitted in the Nursing Home belonging to opposite parties Nos. 3 and 4 on 27.4.1986 for treatment of the complainant. After diagnosis, the complainant was operated for appendicitis and ectopic pregnancy by opposite party No. 2, assisted by opposite party No. 3 and anaesthetistopposite party No. 1. It is alleged by the complainant that the complainant had cardiac arrest during and after the operation and as a result of low supply of oxygen, the complainant''s mind was affected. It appears that subsequent to 27.4.1986 the complainant sustained hip joint dislocation. The complainant has filed this complaint on 4.12.1993 that is more than 7 years after the surgical operation performed by opposite party No. 2 on 27.4.1986. This case was listed for hearing on 10.3.1997 when the learned Counsel for the opposite parties stated that this complaint is hopelessly barred by time and that they have taken the plea in this behalf in their respective statements in answer to the complaint. They, therefore, prayed for commencing the yearing with submissions of theirs on the question of limitation. Learned Counsel for the complainant prays for adjournment for an opportunity to file an affidavit stating that the question of limitation could be debated properly only after filing the affidavit. The time was allowed to the complainant for filing affidavit and the complainant filed an affidavit of the father of the complainant-Shri Shantilal Jain on 1.5.1997 and this case was heard on the question of limitation on 7.5.1997 and 19.5.1997.

Learned Counsel for the opposite parties raised an objection that the affidavit filed by the complainant should not be admitted since it has been filed after long lapse of 4 years after filing of the complaint in the year 1993.

SHRI S.K. Jain, learned Counsel for the opposite parties Nos. 2,3 and 4 pointed out that at paragraph 7 of the affidavit it has been stated that the complainant-Smt. Saroj Bhandari who was originally competent and had the right to file complaint has completely lost her mental equilibrium and has become physically too weak to be able to speak and, therefore, even though the cause of action for the instant complaint arose on 27.4.1986, but, because of physical and mental illhealth she could not file the complaint on the basis of said cause of action and in the circumstances, the entire period during which the complainant remained physically and mentally unfit for filing the complaint liable to be excluded in the computation of limitation. It has also been averred in the affidavit that the commencement of the period of limitation could be reckoned only from the date the complainant is restored to health and normal condition. It has further been averred in the affidavit that in July, 1993 the physicians have declared their opinion for the first time that there is no possibility of the complainant being restored to health and, therefore, in these circumstances the date of knowledge of the aforesaid opinion of the physicians should be taken to be the point of time from which limitation for filing the complaint should be reckoned and on such reckoning the complaint has been filed within limitation. The learned Counsel appearing on behalf of the opposite parties Nos. 2,3 and 4 had submitted that the contention regarding exclusion of time in reckoning of limitation by the complainant''s Counsel on the basis of averments made in the aforesaid affidavit is a complete improvement for seeking exclusion of time and as such is liable to be rejected.

LEARNED Counsel has further submitted that the affidavit of Shri Shantilal Jain filed under Order 19, Rule 3, CPC being evidence it cannot take place of pleading. In the complaint there is no such pleadings as is averred in the affidavit now filed on behalf of the complainant. It has been submitted that no amount of evidence can be looked into in the absence of pleading and, therefore, the affidavit filed on behalf of the complainant cannot be looked into. Further no fresh pleading can be introduced at this stage; otherwise it would be prejudicial to the opposite parties. LEARNED Counsel Shri S.K. Jain has drawn our attention to paras 6 and 7 of the complaint where a contradictory statement is made inasmuch as it is stated that the complainant had lost comprehension of mind and speech for ever when she was removed to T. Choitharam Hospital soon after the operation performed on 27.4.1986 by opposite party No. 2. Further in para 7 it has also been averred that the Senior Physicians were of the opinion that there was no possibility of any improvement in the health condition of the complainant either in the present or in future. This shows that the knowledge of impossibility of any improvement in the health condition of the complainant was there with the complainant way back in 1986 and 1989 and the point of time of such knowledge cannot be artificially shifted forward by way of an affidavit like the one filed presently so as to provide a basis for condoning delay. Learned Counsel Shri Ajay Mishra, appearing on behalf of the complainant has vigorously argued that the complainant has suffered on account of some kind of negligence during the operation performed by opposite party No. 2 on 27.4.1986 and she could never be cured of her physical and mental ailments thereafter and that now she is completely reduced to invalidity. Shri S.K. Jain, learned Counsel for the opposite parties has submitted that the complaint is hopelessly barred by time and there are no circumstances shown by the complainant which would legally justify condonation of delay.

SHRI S.K. Jain, learned Counsel has placed reliance on observation of Privy Council case noticed by the Supreme Court in Jiwanlal v. Brij Mohan (AIR 1973 SC 559) which is as follows: "The doctrine of laches in Courts of equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has by his conduct done that which might fairly be regarded as an equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy put the other party in situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material."

SHRI S.K. Jain, learned Counsel has submitted that the instant case is not one of a continuing wrong which the complainant could complain so as to continue the period of limitation. The complaint is some kind of negligence, during the performance of operation, on the part of the opposite parties. Shri S.K. Jain, learned Counsel has also placed reliance on another decision of the Supreme Court in Balkrishna v. Shri D.M. Sansthan, AIR 1959 SC 798, wherein the relevant observations are as under: "It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked."

We have considerable sympathy towards the complainant who is placed in an unfortunate condition of invalidity but we must be careful not to allow our sympathy to affect our view so far as the question of bar of limitation is concerned. There can be no doubt that decision to file complaint has been taken pretty late and there are no circumstances justifying condonation of delay so as to remove the bar of limitation.

HAVING heard learned Counsel for the parties and having carefully considered the submissions made by the parties we have come to the conclusion that this complaint must be held to be barred by limitation. Accordingly, we dismiss the complaint as barred by limitation with no order as to cost. Complaint dismissed.