TaxTMI 
TaxTMI 
2010 (10) TMI 1107
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.... gall bladder, the appellant performed `Open Cholecystectomy' on 26.11.1993. The respondent was discharged from the appellant's hospital on 30.11.1993. 4. For the next about 9 years, the respondent neither contacted the appellant nor consulted any other doctor despite the fact that after the surgery she was having pain in the abdomen off and on, for which she was taking painkillers and she had to remain on leave at regular intervals. In September, 2002, the respondent was admitted in the hospital and C.T. scan of her abdomen was done on 23.9.2002, which revealed the following: "A well-defined rounded mass showing predominantly peripheral enhancement is seen in relation to the left lobe of liver as described above. This is more likely to be an exophytic neoplasm from the undersurface of left lobe of liver than a pancreatic lesion. Further evaluation of FNAC is suggested." 5. On being advised by the doctors in Goa, the respondent got herself admitted in Lilavati Hospital at Bombay and was operated by Dr. P. Jagannath on 25.10.2002. The relevant extracts of the report of Dr. P. Jagannath are reproduced below: "Findi....
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....nsation by alleging that due to his negligence gauze was left in her abdomen at the time of surgery done in November, 1993, for the removal of which she had to undergo surgery at Lilavati Hospital by spending substantial amount and she and her family had to undergo mental and physical stress. The appellant sympathysized with the respondent but denied the allegation of negligence. In his letter dated 31.1.2003, the appellant emphasized that he had performed thousands of operations in his long career of about 50 years and there was no cause of complaint from any patient. He claimed that at the time of discharge, every patient was given instruction that in case of any problem, he/she should meet him or write a letter or at least contact on phone but the respondent never apprised him of her problem, though, she was sending seasons greetings. The appellant also made a grievance that despite his request, the respondent had not made available papers relating to the investigation and treatment in Goa and Mumbai from November, 1993 to September 2002. 8. Having failed to elicit favourable response from the appellant on the issue of compensation, the respondent filed complaint under Sectio....
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....nce on the appellant's part while performing surgery in November, 1993 was clearly barred by time and the National Commission committed serious error by setting aside the order of the State Commission and remitting the matter for disposal of the complaint on merits. Learned senior counsel relied upon the judgments of the Bombay High Court in Abdulla Mahomed Jabli v. Abdulla Mahomed Zulaikhi, AIR 1924 Bombay 290 and of this Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798 and argued that the discovery of gauze pieces from the mass taken out of the abdomen of the respondent in September, 2002 did not give her fresh cause to file complaint after a time gap of 9 years. Shri Sorabjee emphasized that if the respondent had contacted the appellant or any other doctor immediately after the first operation or within a reasonable time thereafter, effort would have certainly been made to find out the cause of pain in her abdomen and in the event of discovery of the piece of gauze appropriate action could have been taken to remove the same. 12. Shri Devadatt Kamat, learned counsel for the respondent supported the impugned order and argu....
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....on of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central Government or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general. (3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected: Provided that a complaint shall not be rejected under this sub-section unless an opportunity of being heard has been given to the complainant: Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was received. (4) Where a complaint is allowed to be proceeded with under sub-section (3), the District Forum may proceed with the complaint in the manner provided under this Act: Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other court or tribunal or any authority set up by or under any other law for the time being in force. Explanation.- For the purposes of this section, "recognised con....
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....ned in Section 2(d) and there is a `defect', as defined in Section 2(f) in relation to any goods or there is `deficiency in service' as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with. On the other hand, if the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so. Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complain....
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...., the period of limitation commenced from the date of discharge i.e., 30.11.1993 and the complaint filed in 2004 was clearly barred by time. The National Commission too opined that the cause of action first accrued to the respondent in November, 1993 when she was operated by the appellant but proceeded to observe that the same continued throughout the period during which she had constant pain in the abdomen and lastly it arose on 25.10.2002 i.e. the date on which she was operated at Lilavati Hospital and a piece of gauze was found in her abdomen. 17. Since, the term `cause of action' has not been defined in the Act, the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and object of the legislation. In his famous work on statutory interpretation, Justice G.P. Singh has quoted Professor H.A. Smith in the following words: "`No word', says Professor H.A. Smith `has an absolute meaning, for no words can be defined in vacuo, or without reference to some context'. According to Sutherland there is a `basic fallacy' in saying `that words have meaning in and of themselves', and `reference to ....
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....ith him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative- complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. 19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient's body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient's body was discovered. In West Virginia, the Discovery Rule was appli....
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....tion for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is governed by Federal law and not by local State law. The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence. In Josephine Flanagan v. Mount Eden General Hospital LEXSEE 24 N.Y. 2d 427, the application of the rule of Discovery was considered in the background of fact that during the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff's body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by X- ray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed: "The so-called discovery rule employed in foreign object medical malpractice cases is in....
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....f the respondent had not suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25.10.2002. In that case, the complaint filed by her on 19.10.2004 would have been within limitation. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellant's hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years. This is clearly borne out from the averments contained in paragraph 8 of the complaint, the relevant portion of which is extracted below: ".............Even after discharging the complainant from the hospital the pain in the abdomen still persisted as on and off and it was giving unrest to the complainant again at home and at the place where she worked. The ....
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....re, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondent's abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief. However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working....