Y.MEENZAKSHI vs H.NANDEESH

THE complainant Mrs. Y. Meenakshi Alias Rani was admitted to the Deepak Nursing Home (Respondent No. 2) of which Dr. H. Nandeesh (Respondent No. 1) is the Proprietor, on 1.8.1980 at about 6.50p.m. for her second delivery. She had also delivered her first child in the same Nursing Home during 1978. Her first delivery was a normal one. Her family doctor, her brother-in-law and her grand mother had accompanied her to the Nursing Home on 1.8.1980. After assuring her family doctor and brother-in-law that the complainant would have a normal delivery in about half an hour and after their departure, Respondent No. 1 suddenly changed his decision and decided to perform Caesarian operation taking thumb impression of her grand-mother. According to the complainant, Respondent No. 1 performed the Caesarian operation in grossly negligent and utterly careless manner which lead to complication and re-admission to the Nursing Home in September 1980. Although she was treated by Respondent No. 1, she could not get any relief. She had to consult other Specialists and obtained temporary relief. She developed acute shooting pain in the abdominal region and back and suffered agony. She underwent treatment in Victoria Hospital, Kidwai Memorial Hospital and X-ray Centre (Ultra Sound Scan) which revealed hydronephrosis of left kidney and its non-function. Dr. H.S. Bhat, Urologist, advised removal of her left kidney and during operation time at St. Philomina''s Hospital in 1987, he discovered gross enlargement of left kidney and left ureter which was found ligated at its lower 3rd due to previous operation by Respondent No. 1, revealing the gross negligence and utter carelessness of Respondent No. 1 in preforming the Caesarian operation on 1.8.1980. While performing Caesarian operation on 1.8.1980, Respondent No. 1 ligated the left ureter of the complainant at its lower 3rd which lead to complications like inflammation of the left kidney leading to hydronephrosis, inflammation of the left ureter, compensatory work by the right kidney and acute pain and agony as a result. As these deficiencies were not cured by medication, complainant had to undergo corrective operation in 1987 which revealed the extent of deficiency of service by Respondent No. 1. Even after the corrective operation, the affected kidney is not functioning and the complainant has developed hypertension and psychosomatic disorders for which she is still undergoing treatment and is expected to undergo major operation for removal of left kidney and subseqent transplantation after finding suitable donor. THEse are most likely to cause secondary effects on hypertension, heart and eyesight and consequent shortening of life and lifetime suffering to Respondent No. 1. Hence she has filed this complaint claiming compensation of Rs. 9,61,511.00, the breakup of which has been given in Page No. 7, Column No. 7 & 8 of the complaint.

THE complaint is resisted by the respondents 1 and 2 by contending inter alia, that the Commission has no jurisdiction to entertain the complaint which relates to the operation performed by Respondent No. 1 prior to the coming into force of the Consumer Protection Act, 1986 (hereinafter referred to as the ''Act''); that the complaint is barred by limitation; that there was no deficiency in service rendered by Respondent No. 1; that Respondent No. 1 did not ligate the left ureter of the complainant, as its lower 3rd while performing the Caesarian operation on 1.8.1980 as there was no necessity of reaching ureter while performing the Caesarian operation; that the complainant did not suffer any post operative complications as alleged by her in her complaint; that there was no insufficiency of post operative care; that the warning issued by the Karnataka Medical Council is without jurisdiction and there was no proper enquiry and the said decision has been challenged by Respondent No. 1 in Writ Petition No. 10014/1991 on the file of the High Court of Karnataka; that the claim made by the complainant is imaginery and she is not entitled to claim any compensation from Respondent No. 1; that Respondent No. 1 is an experienced Surgeon and he performed the operation with utmost care and he was not at all negligent; that Dr. Bhat in his statement before the Medical Council has admitted that the stricture could be due to Ischema, clamping or even legature; that non-absorbable legature was not there and that whether they are or not, it is difficult to say at this length of time and that the most of the symptoms may be due to hydronephrosis and infection; that Respondent No. 1 performed the operation on the complainant under a contract of personal service and so the complaint is not maintainable as the service under a contract of personal service is excluded from the definition of the expression "Service" found in Section 2(o) of the Act. The complaint was heard on the two preliminary points, namely : - (1) whether the complaint is barred by limitation, (2) whether the complaint is not maintainable as Respondent No. 1 served the complainant under the contract of personal service which is exempted from the definition of the expression ''service'' found in Section 2(o) of the Act.

The complainant was examined on the said points. No evidence is adduced on behalf of the respondents.

THE first point that arises for determination in this case is whether the complaint is barred by time. It is not disputed that the complainant underwent Caesarian operation on 1.8.1980 in Deepak Nursing Home of which Respondent No. 1 is the proprietor. It is also not disputed that Respondent No. 1 performed the said operation on her. THE complainant has in unequivocal terms stated in the complaint that Dr. H.S. Bhat, Urologist, during operation at St. Philomina Hospital in 1987 had discovered gross enlargement of left kidney and left ureter which was found ligated at its lower 3rd due to previous operation by Respondent No. 1 on 1.8.1980 [See Para No. 3 (iii) of the complaint]. She has also stated in Para No. 4(iii) of her complaint that she complained to Karnataka Medical Council oft 24.4.1987 soon after discovery of deficiency on 23.3.1987. From Annexure-I, which is the case summary and discharge record pertaining to the complainant maintained in the St. Philomina''s hospital, it is clear that Dr. Bhat performed the operation on the complainant on 23.3.1987 and has observed in it thus : "Ureter was found to be grossly enlarged and ligated at its lower 3rd (? due to previous operation)". It also shows that the complainant was discharged from the Hospital on 5.4.1987. THErefore, the complainant must have come to know about the deficiency in service of Respondent No. 1 while performing the Caesarian operation on her on 23.3.1987 when Dr. Bhat operated on her and noticed that the left ureter had been ligated at its lower 3rd due to previous operation. So the cause of action for filing a complaint against Respondent No. 1 for his negligence and compensation arose on 23.3.1987. THE complaint has been filed before this Commission on 15.11.1990. According to Article 113 of the Limitation Act, the complaint ought to have been filed within three years from the date on which the cause of action arose. THE complaint in this case ought to have been filed on or before 23.3.1990 as the cause of action arose on 23.3.1987 when the complainant learnt from Dr. Bhat about the deficiency in service of Respondent No. 1 while performing the Caesarian operation on her. Mr. Krishnamurthy, learned Counsel for the complainant urged that the complainant wanted to get confirmation from the Kamataka Medical Council regarding the negligence of Respondent No. 1 and after she got that confirmation she has filed this complaint The Karnataka Medical Council has no jurisdiction to award compensation to the complainant. It could only take action against the Respondent No. 1 for his negligence by administring a warning or removing his name from the list of Registered Medical Practitioners by cancelling his registration. The finding of the Karnataka Medical Council as regards the negligence of Respondent No. 1 cannot be binding on this Commission. Moreover, there is no provision for condonation of delay in respect of filing complaints. Therefore, the complainant cannot take advantage of the fact that she was waiting for the decision of the Medical Council after having come to know about the deficiency in service of Respondent No. 1 on 23.3.1987. Therefore, we are of the view that the complaint filed by the complainant on 15.11.1990 is barred by time.

THE Second preliminary point that arises for determination in this case is, whether the complainant is a consumer and whether her complaint is maintainable. According to Clause (d)(ii) of Section 2(1) of the Act, ''Consumer'' means any person who hires any services for consideration. According to Clause (o) of Section 2(1), the rendering of any service under a contract of personal service will not be service within the meaning of that clause. So if it can be said that the service rendered by Respondent No. 1 to the complainant in performing Caesarian operation on her, is service rendered by him under a ''contract of personal service'', then it will not be ''service'' within the meaning of Section 2(1)(o) of the Act. So the question is whether the Respondent No. 1 rendered service to the complainant in this case under a contract of personal service. THE complainant in her evidence has stated that as per advise of her Family Doctor, Jayatheertharao, she came to Bangalore and went to Deepak Nursing Home and was admitted there. She has further stated that on being admitted into the Deepak Nursing Home, one lady doctor examined her and told her that she would have a normal delivery in about 1/2 an hour. But this important fact has not been mentioned by her in her complaint. She has also stated in her deposit that on 3.8.1980 when Dr. Nandeesh had come to see her, Dr. Nandeesh told her "You are thin. I thought you won''t bear the pain. I had gone to a party and had taken whiskey and therefore, I performed the operation". This important aspect also has not been mentioned by her in her complaint. She has admitted that she did not tell her Advocate at the time when he drafted her complaint about what Dr. Nandeesh had told her. It is highly improbable that Respondent No. 1 would practically confess his negligence before his patient as stated by the complainant. This shows that the witness is intelligent enough to make improvement to suit her case. In her cross-examination she has admitted that Dr. Jayatheertharao (her family doctor) had introduced Dr. Nandeesh (Respondent No. 1) in 1978 as a person hailing from their village. She had also delivered her first child in his Nursing Home. Hence she must be knowing Dr. Nandeesh. She has further admitted in her cross-examination that as she had to go to a doctor for delivery, she was taken to Dr. Nandeesh. She has also admitted that she has got it written in her complaint that Dr. Nandeesh examined her and told her that she would have a normal delivery in about 1/2 an hour. From this, it appears that she went to Dr. Nandeesh as stated by her in her complaint [vide para 3(a)(1) of her complaint]. THE Respondent No. 2 is a Proprietory concern and admittedly. Respondent No. 1 is its Proprietor. It is not shown that there are other doctors working in that Nursing Home. THE complainant has attributed negligence to Respondent No. 1 in performing the operation and has claimed compensation from him. Under the circumstances, we are of the view that the complainant requisitioned the services of Respondent No. 1 under a ''contract of personal service''. If that is so, she will not be the hirer of service for consideration, as service rendered under a contract of personal service is excluded from the definition of the term ''Service'' in Section 2(1)(o) of the Act. THErefore, the complainant will not be a consumer and her complaint cannot be entertained by this Commission. In the result, the complaint is dismissed. Under the circumstances of the case, we direct the Parties to bear their own costs. Complaint dismissed.