IN THE SUPREME COURT OF INDIA

{ORDER XXIV RULE 2 & 3}

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2017

{Arising out of impugned Final Judgment and Order dated

17.03.2017 passed in Consumer Complaint No.1026/2015 by
Hon’ble National Consumer Disputes Redressal Commission read in
view of Correctional Order dated 28.04.2017 passed in M.A. No. 161
of 2017 filed in Consumer Case No.1026/2015 by Hon’ble National
Consumer Disputes Redressal Commission }

IN THE MATTER OF:

BEFORE NCDRC BEFORE
THIS COURT

PRAMOD KUMAR
FLAT LF6/51 BAHADURPUR
HOUSING COLONY,
PATNA – 800026, BIHAR

PRESENTLY RESIDING AT:

A 1/2, AGRASEN SOCIETY,

SECTOR – 7, PLOT NO. 10,
DWARKA, NEW DELHI - 110075 COMPLAINANT APPELLANT

VERSUS

1. M/S. GLOBAL HEALTH OPPOSITE PARTY RESPONDENT

PRIVATE LIMITED NO.1 NO.1
THROUGH ITS DIRECTOR, DR.
NARESH TREHAN
A COMPANY INCORPORATED
UNDER THE
PROVISIONS OF THE
COMPANIES ACT 1956
AND HAVING A HOSPITAL
NAMED AND STYLED
AS ‘MEDANTA MEDICITY’ AT
SECTOR-38, GURGAON,
HARYANA
 DR. NARESH TREHAN OPPOSITE PARTY RESPONDENT
SENIOR CARDIOLOGIST NO.2 NO.2
CHAIRMAN AND MANAGING
DIRECTOR, M/s. GLOBAL
HEALTH PRIVATE LIMITED
MEDANTA MEDICITY,
SECTOR-38, GURGAON,
HARYANA
2.
DR. R.R. KASLIWAL OPPOSITE PARTY RESPONDENT
HEART INSTITUTE-DIVISION NO.3 NO.3
OF CARDIOLOGY MEDANTA
MEDICITY,
SECTOR-38, GURGAON,
HARYANA

DR. SHYAM BANSAL OPPOSITE PARTY RESPONDENT

NEPHROLOGIST NO.4 NO.4
MEDANTA MEDICITY
SECTOR-38, GURGAON,
HARYANA

DR. MANISH PALIWAL OPPOSITE PARTY RESPONDENT

GASTROENTEROLOGIST NO.5 NO.5
MEDANTA MEDICITY
SECTOR-38, GURGAON,
HARYANA

DR. MUKESH KUMAR GUPTA OPPOSITE PARTY RESPONDENT

CRITICAL CARE & NO.6 NO.6
ANAESTHESIOLOGY
ARTEMICS HOSPITAL,
GURGAON

ALSO AT: HOUSE NO. 164, 2nd

FLOOR, N BLOCK, MAYFIELD
GARDEN, SECTOR 51
GURGAON.

DR. P.N. GUPTA OPPOSITE PARTY RESPONDENT

KIDNEY AND UROLOGY NO.7 NO.7
INSITUTE
MEDANTA MEDICITY SECTOR
38, GURGAON, HARYANA
DR. MANSI OPPOSITE PARTY RESPONDENT
INTENSIVE CARE UNIT NO.8 NO.8
MEDANTA MEDICITY
SECTOR-38, GURGAON,
HARYANA

CIVIL APPEAL UNDER SECTION 23 OF THE CONSUMER

PROTECTION ACT, 1986 AGAINST IMPUGNED FINAL ORDER

DATED 17.03.2017 PASSED IN CONSUMER CASE NO.1026/2015

READ IN VIEW OF CORRECTIONAL ORDER DATED 28.04.2017

PASSED IN M.A. NO. 161 OF 2017 FILED IN CONSUMER CASE

NO.1026/2015 BY THE RESPONDENT BEFORE THE HON’BLE

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION.

TO
THE HON'BLE THE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON'BLE SUPREME COURT OF INDIA.

THE HUMBLE APPEAL OF THE APPELLANT

ABOVE NAMED.

MOST RESPECTFULLY SHOWETH:-

1. That the present Civil Appeal is being filed under Section 23 of

the Consumer Protection Act, 1986 (hereinafter referred to as
“the Act”) against impugned Final Judgment and Order dated
17.03.2017 passed by the Hon’ble National Consumer
Disputes Redressal Commission (NCDRC), New Delhi in
 Consumer Complaint No.1026/2015 read in view of
Correctional Order dated 28.04.2017 passed in M.A. No. 161
of 2017 filed in Consumer Case No.1026/2015, whereby the
Hon’ble Commission has been pleased to dismiss the
Complaint of the Appellant.

1A. Respondents had preferred Miscellaneous Application No.

161 of 2017 dated 7.04.2017 seeking correction of the
typographical error at Para 8 of the Order dated 17.03.2017.
The same was allowed by the Hon’ble NCDRC vide Order dated
28.04.2017.

2. QUESTIONS OF LAW: -

The following questions of law arise for consideration by this

Hon'ble Court: -

I. Whether Hon’ble NCDRC has erred by not considering

that its predecessor Bench, on 06.06.2016, had admitted
Appellant’s Complaint after hearing detailed arguments
at the stage of admission including the issue of
limitation and only thereafter the instant complaint was
admitted. It may be noted that Section 24-A of the C.P.
Act prescribes that the Commission shall not admit a
complaint, unless it is filed within two years from the
date on which cause of action has arisen?

II. Whether Hon’ble NCDRC in the facts and circumstances

of the case have the power under Section 22(2) to set
aside its previous orders when there is no error
apparent on the face of record?
 III. Whether in the interest of Justice, hand-maid procedure
can come in way of discharge of justice in the case of
such gross medical negligence?

IV. Whether Hon’ble NCDRC has committed gross injustice

by dismissing the instant consumer complaint merely
on the ground of limitation?

V. Whether in the facts and circumstances of the instant

case, Hon’ble NCDRC has failed to consider that cause of
action was continuing till 14.07.2014, when Ld. Judicial
Magistrate Ist Class, Gurgaon issued summons to
Respondents in Criminal Complaint No.57 for gross
negligence in treatment of Appellant’s wife?

VI. Whether the cause of action arose on the date when

Appellant by exercise of his reasonable diligence
discovered the act constituting gross negligence i.e. on
14.07.2014, when Ld’ Judicial Magistrate Ist Class,
Gurgaon issued summons to Respondents in Criminal
Complaint No.57?

VII. Whether Hon’ble NCDRC has erred in arriving to the

conclusion that there has been delay of nine months in
filing the consumer complaint? And whether the
Complaint of Appellant was within limitation, in the
facts and circumstances of the instant case?

VIII. Whether Hon’ble NCDRC has erred by dismissing the

instant consumer complaint without first affording an
opportunity to the Appellant to file an Application for
 Condonation of Delay, in the facts and circumstances of
the case, to grant substantial justice in the case of
Serious Gross Medical Negligence?

3. The brief facts giving rise to the present appeal are as under:-

3.1 That Appellant’s wife(deceased) at the time of her death

was a 72 years old lady leading a healthy and active life
including exercising for 30 minutes twice a day.
Appellant’s wife was suffering from a mild form of
diabetes, hypertension and minor age related aberrations.
Appellant’s wife was regularly doing proper follow – up,
medical check – ups and all her parameters had been
within range and control. Appellant’s wife was regular
with her medication and check – ups. Appellant’s wife
regularly consulted Respondent No. 2 - Dr. Naresh Trehan
and Respondent No.3 - Dr. R.R. Kasliwal, a known
Cardiologist for her necessary health check – up and
regular medicines.

3.2 That during the intervening night of 24.01.2011 –

25.01.2011 in New Delhi, the Appellant’s wife complained
of sudden, acute abdominal pain with frequent bowel
movement, nausea and vomiting. Respondent No. 2 and
Respondent No.3 advised that Appellant’s wife be taken to
Medanta – A Multi – Speciality Hospital. It is most
respectfully submitted that Respondent No.2 worked as
Senior Cardiologist and as a Chairman and Managing
Director of Respondent No.1 And Respondent No.3
worked in Heart Institute –Division of Cardiology.
3.3 Accordingly, the Appellant and his family immediately
rushed Appellant’s wife to the said Medanta Hospital
situated at Sector – 38, Rajiv Chowk, Gurgaon and reached
the Hospital around midnight.

3.4 The hospital Emergency Staff was informed by the

Appellant that Appellant’s wife was the patient of
Respondent No.3 and Respondent No. 2, and gave the
complete history with relevant documents. Thereafter, the
Appellant’s wife was advised admission at Medanta –
Medicity under the care of Respondent No.3.

3.5 It took almost three hours for admission of Appellant’s

wife in the hospital and finally she was admitted at 3:14
A.M.; even then no specific consultation was given and no
efforts were taken to diagnose, control and cure the
excruciating pain experienced by Appellant’s wife in the
abdomen. Crucial time was lost without any specific
examination or treatment being administered to the
patient.

3.6 Appellant’s wife, for the first time, was examined at 6:30
A.M. by one Dr. Mishra who did not diagnose or disclose
anything. It is submitted that the attitude of the
Respondents was callous, unconcerned and indifferent.
The Respondents did nothing at the relevant crucial time
except whiling away and exhibiting complete
unprofessional, lackadaisical, unconcerned and casual
attitude, although time is an essence in such emergency
cases.
3.7 That the Appellant’s wife lay in the Emergency Ward till
Dr. Samir Malhotra, a cardiologist, came to see her at 7:30
A.M. on 25.01.2011.

3.8 That the Appellant and his family repeatedly made

requests that Respondent No.3 be called. However,
Respondent No.4and one Dr. Sharad informed the
Appellant and his family that Respondent No.3 had
approved removal of the patient to the coronary ward and
that Respondent No.3 would be coming at the earliest; it
may be noted that Respondent No.3 did not even come to
see the patient till 27.01.2011, which was three days later.

3.9 Subsequently, one Dr. Samir Malhotra, Cardiologist, came

to examine Appellant’s wife and without thorough and
proper examination, diagnosis or the proposed line of
treatment, gave directions to shift Appellant’s wife to the
Cath – Lab at 7:30 A.M.; thereafter, Appellant’s wife was
brought back to the Cath Recovery Room at 9:00 A.M. after
insertion of a temporary pacemaker, said fact was
discovered subsequently and the same was done without
the approval or knowledge of the Appellant and was done,
even though the same not even required.

3.10 That on 25.01.2011, from 9:00 A.M. to 6:30 P.M., almost

18 hours from the time Appellant’s wife was brought to
the Hospital, the patient was not once examined by a
Gastroenterologist, except one Nephrologist Dr. Shyam
Bansal - Respondent No. 4, despite there being clear
indications of her ailment being abdomen related. It was
 only at 6:30 P.M., after repeated requests and insistence
that one Gastroenterologist, Dr. Manish Paliwal –
Respondent No.5, who was stated to be a specialist with
rich experiences, was traced and called to examine
Appellant’s wife, who was suffering continuously with
excruciating pain in the abdomen and other G.I.T. problem.
He raised doubts about possible Ischemic events in the
intestine and advised Serum Lipase and X – Ray of the
abdomen on the bedside, as is evident from the Progress
Sheet, provided subsequently.

3.11 That in the evening of 25.01.2011, an Echo was

performed to find out the condition of Appellant’s wife’s
heart, which ought to have been done before insertion of a
pacemaker; it may be noted that this is also a pointer to
the Gross – Negligence of the Respondents who initiated
the treatment solely with the view of encashing at the
miseries of the Appellant and his family. The Gross
Negligence and complete lack of concern is evident from
the fact that none of these unnecessary tests and
procedures were required.

3.12 That Appellant’s wife’s condition deteriorated and she

started turning pale, as she was highly anaemic. The
Progress Report maintained with the Respondent No.1
Hospital had even observed and noted this fact but
nothing was done to determine the cause for her anaemic
condition. Although, the details of what transpired have
been deliberately suppressed, subsequently by
interpolating, adding, manipulating, destroying the
documents in order to absolve themselves from any
 criminal prosecution by resorting to committing acts of
forgery and destruction of evidence.

3.13 It is submitted that the deceased was repeatedly

complaining of severe, acute, abdominal pain as she was
holding on to her stomach, and her repeated vomiting and
stools were clear clinical symptoms of the clinical
condition known as “Acute Intestinal Ischemia” or “Acute
Bowel Ischemia”, which the Respondents failed to
diagnose despite the symptoms being so clear and
obvious, so they could keep performing unnecessary
procedures. Appellant’s wife was neither complaining of
chest pain nor sweating at the time of admission and the
relevant parameters had been found to be in order. The
Respondents despite having discerned no abnormality in
the procedure so carried out, unreasonably delayed
further action, which they were duty bound to do as her
symptoms were a clear pointer of “Acute Bowel Ischemia”,
however, on account of complete lack of skill, gross
negligence, greed and dishonesty, the same resulted in the
untimely death of the Appellants wife.

3.14 It is most respectfully submitted that “Acute Bowel

Ischemia” is a very serious and painful condition, in which
the blood supply to the intestines falters/stops suddenly
and if not treated immediately can result in serious injury
to the intestines. Due to the reduction of the blood flow,
the blood pressure of the patient is also likely to decrease
which was the case of the patient. This condition requires
urgent and specific diagnosis by an expert, it requires
treatment in the form of immediate surgical intervention
 to restore the blood supply to the intestines and may
require even removing any dead intestinal tissues which,
if not done timely proves fatal.

3.15 That this clinical condition has unique symptoms and

they are as follows:-

S. No. CONDITION NATURE OF SYMPTOM

1. Abdomen Severe, sudden and acute pain

2. Bowel Yes
Movement
3. Nausea Yes

4. Vomiting Yes

5. Age Normally, happens with

persons above 50 years of age.
6. Metabolic There is a manifestation of
Acidosis Metabolic Acidosis.

3.16 That Appellant’s wife had all symptoms of Acute Bowel

Ischemia or Acute Intestinal Ischemia. Consequently, it
was the bounden duty to immediately involve a specialist
to ascertain the same and start immediate treatment. It
may be noted here that the delay in administering the right
treatment by the Respondents was only with the ulterior
motive and greed to enhance the bill for Respondent No.1
hospital, which is being run under the direct guidance and
control of Respondent No.2, but is in fact running a
fraudulent racket and a business in healthcare rather than
helping the ailing patients. The Appellant and his family in
fact met him for a discussion regarding the line of
 treatment of the deceased when he did admit the factum
that the wife of the Appellant was suffering from Acute
Bowel Ischemia but did nothing.

3.17 That had there been no utter disregard of due care and
caution, coupled with Gross Negligence, the above clinical
symptoms ought to have been co – related by the following
tests which though done were ignored on account of
callousness and lack of interest in actually curing the
patient. The same being:-

S. NO. NAME OF TEST NATURE OF RESULT

1. White Blood Count Elevated
[WBC]
2. Lactate Elevated

TESTS OF WBC:-

DATE OF TIME OF NORMAL VALUES IN STATUS

RESULT RESULT RANGE TERMS OF
THE TEST
25.01.2011 4.00 to 18.91 Elevated
11.00
26.01.2011 10:54 4.00 to 15.45 Elevated
am 11.00
26.01.2011 05:50 4.00 to 14.04 Elevated
pm 11.00
27.01.2011 04:42 4.00 to 13.33 Elevated
am 11.00
28.01.2011 03:56 4.00 to 18.57 Elevated
am 11.00

TEST OF LACTATE:-
DATE OF TIME OF NORMAL VALUES IN STATUS
RESULT RESULT RANGE TERMS OF
THE TEST
25.01.201 01:22 pm 313 to 618 11667 U/L Elevated
1 U/L
25.01.201 6:04 pm 313 to 618 13512 U/L Elevated
1 U/L
26.01.201 10:54 am 313 to 618 64888 U/L Elevated
1 U/L

3.18 That these clinical symptoms as evident, are easily

decipherable even by any professional of reasonable skills.
This condition of Acute Intestinal Ischemia or Acute Bowel
Ischemia ought to have been diagnosed/ascertained by
conducting a CT Angio Scan or an MRI Angio Scan
otherwise an exploratory Laparotomy (Surgery of the
Abdomen) method for determining the cause of abdominal
pain which ought to be done immediately by following any
of the above mentioned procedures in order to save the life
of the patient as is also borne out from extracts of several
known authors, renowned practitioners of medicine and
surgery were annexed with the instant consumer
Complaint.

3.19 That the Appellant respectfully submits that any person

reasonably skilled and qualified to practice medicine, if
confronted with the aforesaid situation, reads, deciphers
the symptoms and circumstances would necessarily have
asked for the CT Scan or the MRI immediately to ascertain
and rule out the condition of Acute Bowel Ischemia or
Acute Intestinal Ischemia, which was not done even though
specific symptoms were visible, and the Respondents
 claiming to have the necessary skill ought to have carried
out the above mentioned procedure, which they did not,
being a pointer to the fact that they were grossly negligent.
Irrelevant test and procedures were done solely with
billing in mind on account of vested interests and playing
with the lives of gullible patients by keeping them in the
dark and remaining incommunicado.

3.20 That the Respondents who made tall claims of their

skills, services, faculties and fraternity, deliberately and
miserably failed in deciphering, understanding the
symptoms, reports despite the complaints of the patient
and her family members for the ailment being related to the
abdomen without any care, concern, caution as is expected
from a doctor. Further the Respondents acted grossly
negligently and with reckless disregard for the patient’s
life, being driven with ulterior motives rather than welfare
and wellbeing of the patient which is contrary to the basic
core of the noble profession and to a Doctor’s Oath. The
Appellant states and submits that such gross medical
negligence have resulted in the untimely death of his wife
who died the most painful death on account of barbaric
maltreatment by the Respondents. The Appellant
respectfully submits that in fact the Licenses to practice
medicine of such professionals is liable to be revoked for
which also action is being contemplated. The Respondents
are also guilty of having abetted the above offences by
facilitating each other in bringing about the untimely death
of the wife of the Appellant after having realized that they
had botched up her case.
3.21 That on 25.01.2011, at around 10:00 P.M., pain not
having subsided Appellant’s Wife complained of higher
degree of abdominal pain which was informed to the duty
doctor who surprisingly directed that the patient be
removed to the Heart Command Centre rather than
examination of the abdomen on the insistence of the
Appellant. On 25.01.2011 at 11:50 P.M., one Dr. Fatima
opined the need for CT Angio to be done to evaluate
mesenteric vessels for Bowel Ischemia based on the
findings and symptoms, but nothing was done beyond that.

3.22 That the Gastro team once again reviewed the patient at
12:40 A.M. on 26.01.2011 and Dr. T.P. Bohara merely
suggested the investigation by way of CT Angio and having
noticed the onset of Metabolic Acidosis. The said symptoms
which fact had been noticed regularly by the subsequent
doctors also. The prognosis being “Bowel ischemia cannot
be ruled out without CT Angio Abdomen”, the Opposite
party also advised CT Angio Abdomen. Yet again nothing
was done, no follow – up was done to ascertain whether the
procedure was carried out finally and crucial time was lost
on account of the lackadaisical, unconcerned, lack of skill
and reasonable care.

3.23 That the Appellant believes that Appellant’s Wife was

handed over to the heart Command Team at 10:30 P.M. on
25.01.2011 without intimation. Further suddenly at
around 12:00 A.M. on the intervening night of 25.01.2011
and 26.01.2011, the Appellant’s Wife had been forcibly
intubated (put on Mechanical Ventilator) against her will
by Dr. Mukesh - Respondent No.6. There was no
 information to or any specific information or permission
sought from the Appellant or his family who were not
permitted to even talk to her even in writing as the
opposite party had ensured that she did not have any
verbal communication with her family. Appellant’s Wife
herself opposed the said invasive procedure and the
intervention without intimation and consultation with her
family. The recording of the notes also shows that there
was a conspiracy and illegal design by the Respondents and
the actual condition of Appellant’s Wife is not correctly
reflected in the progress sheets written by the
Respondents which has been manipulated and added
subsequently. The fact remains that the Appellant’s Wife
had come to the hospital with severe and acute abdominal
pain and the Respondents did nothing to treat her, when
her symptoms clearly showed that she was suffering from
abdominal pain on account of Acute Bowel Ischemia or
Acute Intestinal Ischemia.

3.24 That the Appellant and his family insisted that they meet
Respondent No.5 and Dr. Fatima on their visit on
25.01.2011. They also remained present during the
examination of Dr. T.P. Bohara, much to the displeasure of
the Hospital Authorities. They were categorically informed
that the symptoms clearly suggested the occurrence of the
condition of Acute bowel ischemia and that the preferred
investigation, which ought to have been conducted, was a
CT Scan with Angio, as is also evident from the noting of Dr.
T.P. Bohara, dated 26.01.2011 at 12:40 a.m. However,
enhancement of the hospital billing being the reason he
again without any care and caution asked for a
 Nephrologist consultation, when in fact Dr. Salil Jain, a
Nephrologist, had already seen the Appellant’s Wife at
12:30 A.M. and advised CT Angio which was not done.

3.25 That the nefarious act of delaying the CT Scan by the

Gastro asking for a Nephro Consultation and the
Nephrologist asking for a Gastro Consultation was simply
to add to the bill with a view to cheat the Appellant and his
family by misrepresenting facts, and this was not only
further delaying the treatment but the delay had affected
the condition of the patient which fact the Respondent in
conspiracy and connivance with each other kept under
cover.

3.26 That despite there being a clear finding and noting(s) of

all the above Nephros and Gastros that the CT Scan was
necessary, the same was not done and such a painful and
life threatening condition of Bowel Ischemia remained
untreated and finally resulting in the death of the patient.
The Respondents never performed their duties diligently
and in-fact conspired and premeditated to ensure that the
wife of the Appellant died with a view to avoid exposure of
their misdeeds and malpractice.

3.27 That having come to know of the patient’s ailments the

Appellant and his family insisted that the said procedure be
conducted immediately in order to save the life of the
deceased. The health of Appellant’s Wife had deteriorated
instead of improving and the Appellant did not want to take
any chances. This was also communicated to the
Nephrologist, Dr. Salil Jain who had examined the deceased
 in the morning of 26.01.2011 at 12:30 A.M. who had also
advised a CT Angio Test. Therefore, on early morning of
26.01.2011, the Appellant’s Wife was to undergo the
advised diagnostic procedure, which was once again not
done intentionally/gross negligently. Even the ultrasound
indications were not followed which had suggested for a CT
Scan.

3.28 That Dr. P.N. Gupta - Respondent No.7 (Nephrologist),

despite there being numerous advises and opinion for
conducting Angio/CT cancelled the same in consultation
with Respondent No.5 for no obvious reasons except for
gross negligence and this resulted in the patient losing her
life due to non-treatment.

3.29 That it is to be further noted, thereafter, the ultrasound

consultant, Dr. Asmita on 27.01.2011 also requested a CT,
and RespondentNo.4, the Nephrologist also re – examined
the patient on 27.01.2011 and again reiterated Mesenteric
Ischemia or Bowel Ischemia. However, it is to be pointed
out that to the horror of the patient, family and friends, the
CT Scan was never carried out, nor was the Exploratory
Laparotomy or Emergency Surgery undertaken to look into
the abdomen to treat and cure the Acute Bowel Ischemia.

3.30 The Appellant’s Wife was admitted under Respondent

No.3 who did not even bother to visit the deceased till the
morning of 27.01.2011 and there being no instructions
from him whatsoever to take any necessary steps. The fact
is mentioned in the Nurse’s Progress Report wherein it is
specifically mentioned that no special orders have been
 given and that all orders have been complied with, which
shows the complete non – application of mind, gross
medical negligence, lackadaisical attitude at the hands of
the Respondents.

3.31 That the undisputed facts are that the CT Angio was to
be conducted which was not done and Nurse’s Progress
Sheet shows the same was to be done at 09:30 A.M. on
26.01.2011 but was purposely cancelled. On account of
inadequate, inept, inconsistent treatment, the health of the
wife of the Appellant started deteriorating and at around
09:50 A.M Respondent No.7, was apprised of her condition.
Despite having been informed to immediately examine the
patient as she was in a critical state, he refused to come. The
said doctor, ignoring the urgency and need of the hour
informed that he will examine the patient only after
completion of his rounds, is complete dereliction to his
duty.

3.32 That Respondent No.7 in spite of repeatedly being called

and reminded at 09:50 A.M. on 26.01.2011 only arrived at
01:30 P.M. after finishing his paid rounds. Respondent No.7
was extremely casual and unconcerned and wrote that he
had spoken to Respondent No.5 and the GI Surgery team.
The CT Angio was put on hold without checking even for
vitals or symptoms of the deceased.

3.33 That it is shocking and unnerving to note that on

26.1.2011 Respondent No.7 in consultation with
Respondent No.5 secretly ordered to not carry out the CT
scan despite so many doctors having recommended it. That
 the Appellant and his family members were not informed
about the decision taken by Respondent No.7 in
collusion/consultation with Respondent No.5 and they did
not conduct the procedure of CT Angio, in collusion with
the other Respondents. The Appellant and his family
inquired about the deferment and requested to meet the
doctor, who thereafter came once and never reviewed the
need of CT/Angio. The Appellant’s family members also
spoke to the duty doctor at the Heart Command Centre at
Medanta and beseeched them to conduct the test
irrespective of the effect. It was also suggested that any
other procedure for determining the correct diagnosis be
carried like a laparoscopy probe or even by cutting open
the abdomen, but to no avail. They were further informed
that the patient is suffering from blood leakage and that
they are trying to find out and were of the firm view that
the problem was heart related for which the treatment was
being given ignoring the clear symptoms and suspicion of
the increasing abdominal catastrophe, nothing was done to
reduce the pain trauma and suffering of the wife of the
Appellant.

3.34 That the doctors on the contrary directed the Appellant

and his family to get in touch with their consultant,
Respondent No.3. However, despite the best efforts
Respondent No.3 could not be contacted. The Appellant
requested the doctors to get them in touch with the
concerned consultant who was not answering his mobile
phone, which request was also refused by the opposite
party stating that “Dr. R.R. Kasliwal - Respondent No.3 is a
senior doctor and we are not allowed to call, he will call
 back”. The Appellant created a hue and cry, however, when
they were threatened of eviction of the patient from the
hospital they again requested the Respondents and
hospital authorities to take another opinion from Dr. T.P.
Bohara or any other consultant as money was not
important but to no avail. Respondent No. 3 was finally
traced and was requested to see the patient but even on the
insistence of family, he did not examine the patient, and left
the Heart Command Centre without writing any note, and
simply raise the bill with his visit charges.

3.35 That the Appellant realized that Respondent No.3 had

visited and examined the Appellant’s Wife without
intimation despite knowing that the Appellant and his
family members were waiting for him and all efforts to
convince the staff to permit them to meet him failed. At the
advice of Respondent No.3 the Appellant and his family
members were made to sit in a room next to the Heart
Command Centre. However, Respondent No.3 avoided to
meet the Appellant and his family members and even left
the Heart Command Centre deliberately without meeting
the Appellant. The Appellant, therefore, could not meet the
consultant under whom his wife had been admitted. The
Appellant and family members thereafter went to the office
of Respondent No.3 and ultimately met him near the lift.
Respondent No.3 informed the Appellant that he will
examine the deceased again showing no sympathy or
concern. When requested that he call the relatives when
examining the patient, simply said in a casual way that he
will examine the patient, which he did not do.
3.36 That on 27.01.2011 the Appellant was shocked to find
out that hands and feet of the deceased were tied to the bed
without informing or consulting the Appellant or their
family members who were present in the Hospital. On
queries it was found that this was done so that the deceased
does not try to remove the intubation, which in fact was not
required at all. The Appellant requested that an additional
nurse be provided rather than the inhumane treatment
being administered to the patient. However, the same was
rejected and the Appellant along with his family were
threatened that if this physical restraint was objected to
then they will paralyze her by giving drugs, to which they
were in a shock and in a dilemma. All this was a blatant
attempt to cover up their follies, their inaction, wrong and
lack of diagnosis, lack of professionalism and grossly
negligent behaviour and further makes them liable for
gross medical negligence.

3.37 That under these facts and circumstances the Appellant

and his family members again made a compliant on
28.01.2011 to Respondent No.2. On the receipt of the said
complaint Respondent No.2 met the Appellant and on the
Appellant’s discontentment and concern a private meeting
was called by Respondent No.2 wherein Respondent No.3
and RespondentNo.7 were also present and the Appellant
and his family were made to wait outside. After detailed
discussion, it was informed that Respondent No.2 and
Respondent No.3 would visit and examine the patient.

3.38 Subsequently after the said meeting, the Respondents

also admitted that the patient was not suffering from any
 heart condition and was basically suffering from Acute
Bowel Ischemia and that they had been neglectful. The
Appellant and family further asked that if they will not
provide the care, they will shift the patient to some other
hospital, even outside India if need be, to which
Respondent No.2 replied that they would give the best
service, better than anywhere else in the world and that the
ICU has his direct number and constantly consults with him
about the patients.

3.39 That Respondent No. 2 said he would personally

examine the patient, and the Appellant and his family
members waited for Respondent No.2 to come and
examine the deceased, which he did not do, in spite of
undertaking to do so and a specific promise to that effect.
The Appellant and his family went two more times to
RespondentNo.2 and asked him to visit the patient as he
had himself mentioned he would do, but each time despite
taking the undertaking that he would be there right away,
he neglected his duty and did not visit the patient.
Respondent No.2 was duty bound to examine the patient
after having accepted the same and having been intimated
of the patient’s condition, but knowing that there had been
gross negligence, intentionally did not come to examine the
patient, which is in itself gross negligence and a criminal
offense on his part. In the meantime, Respondent No.3 had
examined the deceased and again left without meeting the
Appellant or his family members. He examined the patient
on 28.01.2011 at 04:30 P.M. and was most disrespectful,
uncommunicative and avoiding any attempt to enquire
about the health of the patient. Due to this unresponsive
 attitude, the Appellant insisted on meeting Respondent
No.3 personally when one Dr. Yatin Mehta, did not permit
the Appellant and his family members to meet Respondent
No.3. Only then it was learnt that the condition of
Appellant’s Wife had deteriorated considerably and that
RBC (Red Blood Cells) were to be administered as per Dr.
Yatin Mehta’s order, who is head of Critical Care, who then
informed the Appellant that the patient needs the RBC’s
immediately otherwise the Appellant’s Wife would not
survive.

3.40 That based on the information collected the

Respondents grossly neglected in performing their medical
duties and whereas the decision to give RBC’s to the
deceased was taken as far back as on 04:30 P.M. on
28.01.2011 and the same was not administered at all. In
fact, at 08:00 P.M. on 28.01.2011, Respondent No.8 had
refused to administer the said RBC and personally spoke to
the blood bank to return the blood, this was in conspiracy
with Dr. Naresh Trehan - Respondent No.2 and Dr. R.R.
Kasliwal - RespondentNo.3, who knew very well that non
administration would lead to certain untimely and
accelerated death for a person who had been anemic and
suffering from Acute Bowel Ischemia for the last four days
and whose case they had completely botched up. The
Respondents No.2 to Respondent No.8 are thus guilty of
having committed murder of the wife of the Appellant and
have tried to hide their gross medical negligence and
deficiency of service as per the Consumer Protection Act.
3.41 That the Appellant and his family members around
08:30 P.M. were called by the hospital staff and informed
that the prognosis of the deceased was very poor and they
could take the patient either to Max or Apollo Hospital on
hearing which the Appellant was shocked and even
threatened to call the Police. With a view to thwart the
attempt, the Respondents changed their stance.

3.42 That the Appellant and his family had been requesting
to see the deceased but were stopped and later it was learnt
through an attendant that at that point of time the deceased
was being administering CPR (Cardio Pulmonary
Resuscitation) which was mere procedural sham so that
they could pretend that some kind of resuscitative protocol
has been followed.

3.43 That the Hospital staff did not even bother to inform the
Appellant or his family about the impending procedure
being conducted. The Hospital Staff around 08:40 P.M.
declared the Appellant’s Wife dead, the Appellant and his
family members were shocked at the revelation and were
completely broken. Thereafter the Appellant in
consultation with his family, who were in deep shock at the
sudden and unexplained loss of their most respected and
beloved family member, fearing foul play said they would
file a case but were threatened by some staff members,
including Dr. Mukesh – Respondent No. 6. After insisting
the hospital authorities, the Appellant was able to obtain
the photocopies of the relevant medical records from the
hospital, which they were reluctant to part with and only
received it on 16.02.2011.
3.44 That on 7.11.2011 Appellant sought opinion of Dr. Om
P. Chaurasia regarding his wife’s treatment by M/s Global
Heath Private Ltd., Dr. Naresh Trehan & his team of doctors
and in his opinion the death of Appellant’s wife was no less
than a gross negligence in her medical care. Thereafter, on
27.2.2012 Appellant sought Opinion of Dr. Sanjay Dhawan.
Thereafter, on 31.03.2012 Dr. Chandan Sahay opined that
death of Appellant’s wife was due to gross negligence.
Appellant again sought opinion of Dr. Kunal Saha who on
2.04.2012 opined that the hapless patient in the instant
case, died from wrong treatment due to lack of ordinary
skill in diagnosis and gross negligence by the doctors at
Medanta Hospital. Then on 24.12.2012 Appellant took
opinions from Dr. R.K. Sharma (Prof.), Dean (R&D),
Saraswathi Institute of Medical Sciences, Noida and Ex –
Head of Department of Forensic Medicine, All India
Institute of Medical Sciences, New Delhi who clearly opined
after detailed examination and come to the conclusion that
the Respondents were guilty of medical recklessness, rash
and gross medical negligence, deficiency of service and
failed to apply reasonable skill care while treating the
patient and ignoring basic principles of patient care leading
to the untimely death of the deceased.

3.45 It is submitted that during the entire period of the

deceased’s stay in the Hospital, the Respondents had
induced the Appellant and his family members to
procedures like temporary pacemaker installation,
dialysis, mechanical ventilation by intubation scores of test
which were not necessary and which did not in fact
 improve health of Diseased wife of Appellant but instead
proved to the contrary. The Appellant and his family
members were made to believe such procedures and test
only would improve the health of the deceased. It was false
and known to the Respondents to be false. In this manner,
Appellant was made to paid a sum of Rs. 2,41,706/- which
was wrongfully/illegally extorted by the Respondents. The
Respondents have therefore wrongfully gained and have
caused Appellant wrongful and a grave, irreparable loss.
The Respondents are guilty of Gross medical negligence
and Deficiency of services.

3.46 It may be noted here that Respondent hospital and

Respondent No.2, i.e. Dr. Naresh Trehan are highly
influential people who have a lot of political might and legal
clout, by use of which Appellant believes that even the
documents/patients case history sheets have been
tampered with to get themselves absolved of any legal
proceedings emanating henceforth.

3.47 That the Appellant further sought opinions from a

number of specialists both in India and abroad, who were
also of the firm opinion that the untimely death of Smt.
Chandramukhi Verma was as a result of gross medical
negligence on the part of the aforesaid Respondents.

3.48 The Respondents have also conspired together to

physically restrain the deceased and have inflicted
unnecessary and severe painful, cruel and outright
immoral measures on the deceased, which were torturing
her for several days. This brutal and inhumane treatment
 is clear violation of the human rights of the patient, who
had come to the hospital with an excruciating pain, and
instead was only made to bear additional torment and
suffering. That the Respondents are also guilty of having
committed the offence of murder as all their acts of keeping
the patient intubated, removing her to the heart Command
Centre, physically restraining her were done with the sole
intention to deny the Appellant and his family members
free access to her as they were already aware that on
account of their lapses, the case of the wife of the Appellant
had gone beyond their control, and in fact not even making
an effort even till the end to save her by surgery, as it was
in their interest to let her die, and did so by devoiding her
of blood.

3.49 Thereafter, Appellant and his family members

repeatedly tried to approach the Respondents in order to
determine the reason and confront them after having
recovered from their grief of loss of precious life of their
beloved/revered wife. During the course of these meeting
the Respondents admitted their follies, the case being
botched up and having been grossly negligent resulting in
the death of the patient

3.50 That the Respondents are responsible for the death of

the wife of the Appellant who was directly under the care
and treatment of the Respondents. They were grossly
negligent and despite having ample opportunities, they did
nothing that was required as expected from them. The
Respondents despite all the training deliberately
committed overt acts of commission and omission and
 which acts are the direct and proximate cause of the death
of the Appellant’s wife. By their illegal acts and nefarious
design actuated by greed, death was imminent which fact
was also in their knowledge but deliberately ignored for
their ulterior motives.

3.51 That the heinous and grotesque treatment of the patient

with deliberate disregard for life is a stark example of the
rarest of rare cases when well - being, safety, health of the
Patient has been jeopardized for their own personal gain
by the Respondents [it is a direct violation of the
Constitution of India Article 21 which guarantees us the
Right to Life and other human rights].

3.52 That this Hon’ble Court in the case of Parmanand

Kataria vs. Union of India{AIR 1989 SUPREME COURT
2039} held that “Every doctor, at the governmental
hospital or elsewhere, has a professional obligation to
extend his services with due expertise for protecting life”.
There is enough prima facie evidence which point towards
the guilt of the Respondent(s) who acted in unison for the
common objective in conspiracy with each other as even
the very basic procedure expected from skilled
professional(s) was not carried out deliberately despite
their being ample opportunities to do so, the Respondents
are liable to be punished for their gross medical negligence.

3.53 That Appellant being constrained by the gross negligent

acts of the Respondents filed a criminal complaint bearing
no. 57/13 before the Hon’ble Gurgaon District Court
against the Respondents herein and vide order dated
 14.07.2014 Ld. Judicial Magistrate 1st class, Gurgaon under
Sections 304A, 337, 420, 468 read with 34 IPC Summoned
all the respondents herein for causing death to Appellant’s
Wife due to negligence and the matter is pending
adjudication. True Copy of Summoning Order dated
14.07.2014 in Criminal Complaint No. 57/13 passed by the
Ld. Magistrate 1st Class Gurgaon Court is annexed as
ANNEXURE A-1.

3.54 That since the Ld. Magistrate issued summons on

14.07.2014, against the Respondents here in Criminal
Complaint bearing No. 57/13, Appellant was assured that
there was a clear case of Medical Negligence ultimately
causing death of the Appellant’s Wife.

3.55 That on the affirmation that there has been Medical

Negligence on the Part of the Respondents by the
summoning order dated 14.07.2014 passed by the Ld.
Magistrate, Appellant filed Consumer Complaint No.
1026/15 dated against the Respondents before the
National Consumer Disputes Redressal Commission
(NCDRC). True Copy of Consumer Complaint No. 1026/15
dated 7.09.2015 filed by Appellant before the Hon’ble
NCDRC is annexed as ANNEXURE A-2.

3.56 That Vide Order dated 06.06.2016 the complaint was

admitted, after hearing the arguments. It is most
respectfully submitted that Section 24-A of the Act casts
and obligation on the consumer Fora that it shall not admit
a complaint unless it is filed within two years from the date
on which cause of action has arisen. That considering the
 said fact that the Instant Complaint is time bound and
within limitation from the date of last cause of action,
Hon’ble NCDRC was pleased to admit the Complaint of the
Appellant herein. True Copy of Order dated 6.06.2016
passed by the Hon’ble NCDRC in Consumer Complaint No.
1026/15 is annexed as ANNEXURE A-3.

3.57 That on 19.08.2016 Written Statement was filed by the

Respondents to the Appellant’s Complaint. Respondents in
their reply took the ground that the Complaint if time
barred and is liable to be dismissed. It is submitted that
Appellant filed the instant Complaint before the Hon’ble
Commission only after considering the fact that the Ld.
Magistrate, Gurgaon District Courts have taken into
consideration the acts of the Respondents as adverse and a
Case of gross Medical negligence. Thereafter, Appellant
filed the instant Complaint, on Discovering that there had
been gross Medical Negligence by the Respondents in the
treatment of Appellant’s wife and as observed in the case
of V.N. Shrikhande (DR.) vs Anita Sena Fernandes {(2011)
1SCC 53} was within the 2year time as mentioned under S.
24 Consumer Protection Act, 1986. True Copy of Written
Statement dated 19.08.2016 filed by Respondent No. 2 in
CC. No. 1026/15 is annexed as ANNEXURE A-4.

True Copy of Written Statement dated 19.08.2016 filed by

Respondent No. 1, 3, 4, 5, 7 & 8 in CC. No. 1026/15 is
annexed as ANNEXURE A-5.

3.58 Respondents moved I.A. No.9457 of 2016 dated 27.09.2016

seeking decision on the preliminary issue regarding bar of
 limitation in filing the present complaint. True Copy of I.A.
No. 9457/16 dated 27.09.2016 in CC. No. 1026/15 is
annexed as ANNEXURE A-6.

3.59 The Appellant resisted the said application seeking

decision on the preliminary issue regarding bar of
limitation vide his reply filed on 07.03.2017. True Copy of
Reply dated 7.03.2017 to I.A. No. 9457/16 filed in CC. No.
1026/15 is annexed as ANNEXURE A-7.

4. That vide Impugned Final order dated 17.03.2017 Read with

Order dated 28.04.2015, Hon’ble NCDRC was pleased to
dismiss Appellant’s Complaint on the ground that the same
has been filed almost nine months after the expiry of period of
limitation computed from the date on which cause of action
last arose. The Hon’ble NRDRC further observed that no
explanation for delay has been given nor any application for
Condonation has been filed and therefore dismissing the
complaint, as barred by limitation. Complaint is, therefore,
dismissed being barred by limitation. Hon’ble Commission
while passing the order dated 17.03.2017 considered that
cause of action for filing the consumer complaint lastly arose
on 24.12.2012; the complaint, therefore, to be within
limitation ought to have been filed within two years computed
w.e.f.24.12.2012 when the cause of action finally arose i.e.
latest by 24.12.2014. IMPUGNED ORDER

5. That the Order dated 17.03.2017 had a typographical error in

Para 8, wherein it has been recorded that the complainant had
filed “almost nine years” after the cause of action could have
lastly arisen; however, “nine years” ought to be read as “nine
 months”. Respondents filed an Application Under Section 152
R/w Section 151 of the Civil Procedure Code, 1908 seeking
correction of the typographical error at Para 8 of the Order
dated 17.03.2017. True Copy of the Misc. Application No. 161
of 2017 dated 7.04.12017 filed by Respondents in CC. No.
1026/15 is annexed as ANNEXURE A-8.

6. Hon’ble National Commission was pleased to allow Misc.

Application No. 161/15 vide Order dated 28.04.2017 directing
that the first two words in the 5th line in the Order at Page 5
shall be read as “nine months” instead of “nine years”. True
Copy of the Correctional Order dated 7.04.12017 passed in
Misc. Application No. 161 of 2017 is annexed as ANNEXURE A-
9.

7. It is submitted that the cause of action last arose on

14.07.2017 when the Ld. Magistrate issued summons against
the Respondents for causing death of Appellant’s wife due to
Gross Medical Negligence. It is further submitted that after
obtaining the opinions of several Doctors, in India & Abroad,
Appellant filed a Criminal Complaint bearing No. 57/13. That
being a Medical case, Appellant wanted to make sure that
there had been deliberate Negligence on the part of the
Respondents and that they were grossly negligent and despite
having ample opportunities, they did nothing that was
required as expected from them. The Respondents despite all
the training deliberately committed overt acts of commission
and omission and which acts are the direct and proximate
cause of the death of the Appellant’s wife. By their illegal acts
and nefarious design actuated by greed, death was imminent
which fact was also in their knowledge but deliberately
ignored for their ulterior motives. Therefore, on issuance of
Summons by the Ld. Magistrate, Appellant was sure that there
 was a default in services of the Respondents and that they had
been negligent in properly treating Appellant’s wife, and
causing untimely death.

8. Appellant states that the Annexure A-1 to Annexure A-7

produced along with the present Civil Appeal are true copies
of their original and were a part of the pleading and the
records of the Hon’ble NCDRC against whose orders the
present appeal has been filed.

9. That the impugned order was passed by Hon'ble Commission

in Consumer Case No.1026/2015 on 17.03.2017. The
Appellant’s counsel received the impugned Final Order dated
17.03.2017 on 13.04.2014. Thereupon, Respondent filed Misc.
Application No.161 of 2017 dated 7.04.2017 in Consumer
Case No.1026/2015. That Hon’ble Commission allowed the
application vide order by Hon'ble Commission on 28.04.2017.
The Appellant’s counsel received the impugned order dated
28.04.2017 on 19.05.2017.

10. GROUNDS OF APPEAL:

Appeal is sought, inter alia, on the following grounds;
which are taken without prejudice to one another: -

A. Because the Hon’ble Commission has erred in

dismissing the consumer complaint filed by the
Appellant on the ground the same has been filed almost
nine months after the expiry of period of limitation. The
Hon’ble Commission while passing the impugned Order
dated 17.03.2017 has incorrectly considered that cause
of action for filing the consumer complaint lastly arose
 on 24.12.2012. The Hon’ble Commission further
wrongly observed that complaint ought to have been
filed within two years computed w.e.f.24.12.2012, when
the cause of action finally arose i.e. latest by 24.12.2014.

B. Because cause of action for filing the instant complaint

first arose on 25.01.2011, when Appellant’s wife was
admitted in Medanta. It subsequently arose on each of
the numerous occasions until 28.01.2011, when
Appellant’s wife died at the said Hospital owing to gross
negligence of Respondents. Subsequently, the cause of
action continued and again arose on 7.11.2011 when
Appellant sought opinion of Dr. Om P. Chaurasia
regarding his wife’s treatment by Respondents and he
opined that the death of Appellant’s wife was no less
than a gross negligence in her medical treatment and
care. In the instant case of medical negligence, the cause
of action continued and again arose on 27.2.2012 when
Appellant sought further Opinion of Dr. Sanjay Dhawan.
Subsequently the cause of action again arose on
31.03.2012, when Dr. Chandan Sahay opined that death
of Appellant’s wife was due to gross negligence. The
cause of action continued and again arose on 2.04.2012
when Dr. Kunal Saha opined that the hapless patient in
the instant case, died from wrong treatment due to lack
of ordinary skill in diagnosis and gross negligence by the
doctors at Medanta Hospital. The cause of action
continued and again arose on 24.12.2012 when Prof. Dr.
R.K. Sharma opined that there is gross negligence in
treatment of Appellant’s wife treatment at the hands of
doctors working at Medanta Hospital. The cause of
 action continued and further arose on 18.05.2013 when
Appellant filed a Criminal Complaint No.57 against the
Respondents before the Judicial Magistrate 1st Class,
Gurgaon. The cause of action continued and further
arose on 14.07.2014 on which date Ld. Magistrate,
Gurgaon issued Summons to the all Respondents herein
for gross negligence in treatment of Appellant’s wife.
Therefore, the instant complaint dated 8.09.2015 filed
by Appellant is well within limitation from 14.07.2014.

C. Because instant case is the grossest case of medical

negligence. Respondents who make tall claims of their
skills, services, faculties and fraternity, deliberately and
miserably failed in deciphering, understanding the
symptoms, reports despite the complaints of the
patient, Appellant and his family members for the
ailment being related to the abdomen without any care,
concern, caution as is expected from a doctor. Further
the Respondents acted grossly negligently and with
reckless disregard for the patient’s life, being driven
with ulterior motives rather than welfare and well-
being of the patient which is contrary to the basic core
of the noble profession and to a Doctor’s Oath. The
Appellant states and submits that such gross medical
negligence have resulted in the untimely death of his
wife, who died the most painful death on account of
barbaric maltreatment by the Respondents.

D. Because Hon’ble NCDRC has committed gross injustice

by dismissing the instant consumer complaint. It is
submitted that hand-made procedural ways cannot
 come in discharge of justice in the gross cases of medical
negligence. Hon’ble NCDRC has every power under the
statute to condone the delay, if any, to achieve the ends
of substantial justice, if sufficient cause is shown. It is
amply clear from the pleading that Appellant consulted
numerous doctors after the death of his wife. Some
doctors agreed to give written opinion and some
provided oral opinions. Appellant kept on discovering
this until 14.07.2014, when the Ld’ Magistrate, Gurgaon
issued Summons to the Respondents. Thereupon,
Appellant stopped discovering further and came to firm
belief that Respondents have committed Gross Medical
Negligence.

E. Because in the case of Dr. V.N. Shrikhande Vs Mrs. Anita

Sena Fernandes reported as (2011) 1 SCC 53, this
Hon’ble Court has observed as under: -

“23. In the cases of medical negligence, no

straitjacket formula can be applied for
determining as to when the cause of action has
accured to the consumer. Each case is to be
decided on its own facts. If the effect of negligence
on the doctor’s part or any person associated with
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.”

It is submitted that the in the instant case after the death

of Appellant’s wife, Appellant found about the gross
Negligence when he contacted several doctors, however
being unsure whether the same can be relied in Courts,
Appellant filed a criminal complaint before the District
court Gurgaon. It is upon the Summoning Order dated
14.07.2014 that the Appellant truly discovered that
there was Medical Negligence causing death of
Appellant’s wife and filed the instant Complaint before
the NCDRC.

F. Because on 06.06.2016, Hon’ble Commission after

hearing counsel for the Appellant admitted the
Complaint and directed issue of notice as per Section 13
of the Consumer Protection Act to the Respondents. It is
most respectfully submitted that Section 24-A of the Act
casts an obligation on the consumer Fora that it shall not
admit a complaint unless it is filed within two years
from the date on which cause of action has arisen. That
considering the said fact that the Instant Complaint is
time bound and within limitation from the date of last
cause of action, Hon’ble NCDRC was pleased to admit the
Complaint of the Appellant herein.

G. Because Hon’ble NCDRC under Section 22(2) have the

power to review any order made by it, when there is an
 error apparent on the face of record. It is submitted that
predecessor bench after hearing the argument on
merits of the case, as well as acknowledging the fact that
the case is filed within time and is not barred by Section
24A of the C.P. Act, admitted the Complaint of the
Appellant. It is further submitted that under section
22(2) Hon’ble NCDRC only have limited power to
review its own Order and cannot set aside its previous
orders at any instance. Hon’ble NCDRC ought not have
set aside order dated 6.06.2016 and dismiss the
Complaint of the Appellant, since the issue of limitation
under section 24A was dealt with the predecessor bench
and being satisfied by the arguments advanced by the
Appellant the appeal was admitted and notice was
issued by the Hon’ble NCDRC.

H. Because the Respondents after being served with the

Notice in CC No. 1026/15 moved I.A. No.9457 of 2016
seeking decision on the preliminary issue regarding bar
of limitation in filing the present complaint. It is
submitted that there is no such procedure of summarily
dismissing a complaint or framing of a preliminary issue
before Hon’ble National Commission especially in view
of order dated 6/06/2016 passed by Hon’ble
Commission which is as follows:

“Counsel for the Complainant is present.

Arguments heard. Complaint stands admitted.
Notice be issued to the opposite parties with the
direction to file written statement within 30 days
 from the date of notice as per section 13 of the
Consumer Protection Act, 1986…”

I. Because the Complaint is filed within the limitation

period and the Hon’ble Commission had taken the note
and cognizance of the same after giving due
consideration to all the facts and circumstances. It is
most respectfully submitted that the power of Hon’ble
Commission is well defined under section 24A of the
Consumer Protection Act, 1986 and cannot be exercised
at the whims and caprice of the Respondents. Power to
review as contained in Section 22 of the Consumer
Protection Act, 1986, cannot be evoked at the behest of
the Respondents.

J. Because the cause of action was continuing and lastly

arose on 14.07.2014 when Ld. Magistrate issued
Summons to Respondents in Criminal Complaint No.
57/13. It is submitted that Appellants took opinions of
several Doctors after the death of the Appellant’s wife,
pursuant to which a Criminal Complaint was filed before
the District Courts, Gurgaon. Appellant filed the
consumer complaint after the issuance of summoning
order by the Ld. Magistrate, since Appellant was
convinced that there is gross Medical Negligence in the
treatment preferred by Respondents, causing untimely
death of Appellant’s wife and had a ground for filing of a
consumer complaint. It may be noted that the Ld.
Magistrate took Cognizance of the Negligence on the
part of the Respondents and issued summons to them,
therefore, clearing Appellant’s doubt over Medical
 Negligence causing untimely death Appellant’s wife’s
and since the discovery of the same was on 14.07.2014
the same is when the cause of action lastly arose and
since then continuing.

K. Because this Hon’ble Court in the case of Banarsi Das &

Anr. Vs. Kundan Lal & Ors. (AIR 1963 SC 1165) observed
that, “If the High Court felt overwhelmed by the
provisions of Section 3 of the Limitation Act, it should at
least have given an opportunity to the parties which
supported the decree of the trial court to meet the plea
of limitation by amending their pleadings. After
allowing the pleadings to be amended, the High Court
should have framed an issue and remitted it for a finding
to the trial court. Instead of doing so, it has chosen to
treat the pleading of one of the defendants as conclusive
not only on the question of fact but also on the question
of law and dismissed the suit.” It is submitted that
Appellant in pursuance of his due diligence filed
instance complaint on 8.09.2015 after the Ld.
Magistrate issued Summons to Respondents in Criminal
Complaint No. 57/13 on 14.07.2014. However, no
opportunity was granted by the Hon’ble NCDRC to
amend its pleadings or file an application for
Condonation of Delay, in the interest of Justice. Instead,
Hon’ble NCDRC chose pleadings of the Respondents as
conclusive and dismissed the complaint of the Appellant
merely on technical ground and not on merits.

L. Because in the interest of justice, Hon’ble Commission

ought to have afforded an opportunity to the Appellant
 to file an Application for Condonation of Delay, though
Appellant believed that there has been no delay. It is
submitted that since the Complaint was already
admitted vide Order dated 6.06.2016 by the Hon’ble
Commission after perusal of all the facts and
Circumstances of the case, which imply that issue of
limitation had already been considered by the Hon’ble
Commission, because Section 24-A of the Act casts an
obligation on the consumer Fora that it shall not admit
a complaint unless it is filed within two years from the
date on which cause of action has arisen.

M. Because the Hon’ble Commission while dismissing the

instant Complaint observed as under:

“From the aforesaid sequence of events it is

evident that cause of death for filing the consumer
complaint firstly arose on 28.1.2011 when the
patient died. Undisputedly, the complainant
received the medical opinion from the above-
referred doctors pointing towards the medical
negligence in the treatment of the deceased
patient. On perusal of the copies of the medical
opinion given by Dr. R.K. Sharma, as also Dr. Kunal
Saha, we find that the opinions are dated
24.12.2012, 2.4.2012, 7.11.2012, 31.3.2012 and
27.2.2012. From this it is evident that the
complainant came to know about the alleged
medical negligence on the part of the opposite
parties in the treatment of Ms. Chandra Mukhi
Verma latest by 24.12.2012. Thus, cause of action
 for filing the consumer complaint lastly arose on
24.12.2012. The complaint, therefore, to be within
limitation ought to have been filed within two
years computed w.e.f.24.12.2012 when the cause
of action finally arose i.e. latest by 24.12.2014.
Undisputedly, the complaint has been filed on
07.09.2015 i.e. almost nine months after the
expiry of period of limitation. The complainant
has neither filed an application for condonation of
delay nor he has given any explanation for the
delay caused in filing of the consumer complaint
within the period of limitation.”

It is most respectfully submitted that as per the

Appellant – Complainant, the cause of action lastly arose
on 14.07.2014 and ever since has been continuous and
the same was stated by the Appellant in his Complaint
in para 21, stated as under:

“21. That the cause of action arose on 28.01.2011

and again on 14.07.2014 and ever since the cause
of action has been continuous.”

N. Because the Counsel for the Appellant specifically

pointed out the order passed by the predecessor Bench
on 06.06.2016 and submitted that on the said date after
hearing arguments on admission, the complaint was
admitted which implies that issue of limitation had
already been considered by the predecessor Bench
because Section 24-A of the Act casts an obligation on
 the consumer Fora that it shall not admit a complaint
unless it is filed within two years from the date on which
cause of action has arisen. Learned counsel further
contended that in view of the aforesaid, issue of
limitation cannot be worked up by the opposite party.

O. Because this Hon’ble Court in the case of Parmanand

Kataria vs. Union of India reported as 1989 AIR 2039,
has observed that “Every doctor, at the governmental
hospital or elsewhere, has a professional obligation to
extend his services with due expertise for protecting
life”. That there is enough prima facie evidence which
point towards the guilt of the Respondents, who acted
in unison for the common objective in conspiracy with
each other as even the very basic procedure expected
from skilled professional(s) was not carried out
deliberately despite their being ample opportunities to
do so, the Respondents are liable to be punished for
their gross medical negligence.

It may be noted here that during the entire period of the

deceased’s stay in the Hospital, the Respondents had
induced the Appellant and his family members to
procedures like temporary pacemaker installation,
dialysis, mechanical ventilation by intubation scores of
test which were not necessary and which did not in fact
improve health of Diseased wife of Appellant but instead
proved to the contrary. The Appellant and his family
members were made to believe such procedures and
test only would improve the health of the deceased. It
was false and known to the Respondents to be false. In
 this manner, Appellant was made to paid a sum of Rs.
2,41,706/- which was wrongfully/illegally extorted by
the Respondents. The Respondents have therefore
wrongfully gained and have caused Appellant wrongful
and a grave, irreparable loss. The Respondents are
guilty of Gross medical negligence and Deficiency of
services.

P. Because Negligence as a tort is the breach of a duty

caused by omission to do something which a reasonable
man would do, or doing something which a prudent and
reasonable man would not do. It may be noted here that
the three main ingredients of negligence are, a) the
Opposite Party owes a duty of care to the Patient; b) the
Opposite Party has breached this duty of care; and c) the
Patient has suffered an injury due to this breach of
reasonable diligence by the Opposite Party.

In view of the above it is prima facie evident that the

conduct of the Respondents from the very beginning
had been grossly negligent and the entire treatment
administered by the Respondents was wrong and
driven wholly by greed with absolutely no concern
about the welfare and wellbeing of the patient in a
sinister design and mandate of Respondent No.2 and
other Respondents in order to enhance the bill by hook
or crook amounting to deficiency in service on the part
of the Respondents.

Q. Because Consumer Protection Act, 1986 is created to

provide for better protection of the interests of
 consumers and is a beneficial legislation. Taking
exception to the above purpose of law, the instant case
is a gross case of consumer abuse by respondents, who
due to their callous, unconcerned and indifferent
attitude cause death of Appellant’s Wife. The
Respondents did nothing at the relevant crucial time
except whiling away and exhibiting complete
unprofessional, lackadaisical, unconcerned and casual
attitude, although time is an essence in such emergency
cases. The Appellant has been grossly harassed by the
Respondents and have caused untimely death of his
wife. Appellant is a senior citizen.

R. Because in the light of facts and circumstances of the

Complaint and since there is such serious deficiency and
harm to Appellant, Hon’ble Commission has grossly
erred in coming to conclusion that present complaint is
barred by limitation, especially after the predecessor
parallel bench having admitted the case and issued
notice after considering all the facts.

11. The Appellant states that no other appeal petition has

been filed by it against the impugned Final Order dated
17.03.2017 passed by Hon'ble NCDRC in Consumer Case
No.1026/2015 filed by Appellant and impugned Final Order
dated 28.04.2017 passed in Misc. Application No. 161/2017
by Hon'ble NCDRC in Consumer Case No.1026/2015 filed by
Appellant.

12. That under the circumstances, the Appellant is left with

no alternative but to approach this Hon’ble Court by way of
 the present Civil Appeal for necessary relief, redressal and
justice.

13. It is the humble and respectful submission of the

Appellant to quash the impugned final order dated 17.03.2017
and 28.04.2016 passed by Hon’ble Commission and to restore
the CC No. 1026/2015 filed by Appellant for upholding the
principles of equity, justice and good conscience.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court be

pleased to:-

(a) Allow the Civil appeal and set aside the Impugned Order
dated 17.03.2017 in CC No. 1026/2015 read in view of
Correctional Order dated 28.04.2017 passed in Misc.
Application No. 161/2017 in CC No. 1026/2015 passed by
Hon'ble NCDRC; &

(b) Pass such other order (s) as may deem fit and proper in the
facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS, THE HUMBLE APPELLANTAS IN

DUTY BOUND SHALL EVERY PRAY

DRAFTED & FILED BY

(VIVEK NARAYAN SHARMA)

Advocate for Appellant
Drawn on:
Filed on:
 IN THE SUPREME COURT OF INDIA
{ORDER XXIV RULE 2 & 3}
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2017

In the matter of: -

PRAMOD KUMAR …APPELLANT
VERSUS
M/S GLOBAL HEALTH PVT. LTD.
(MEDANTA MEDICITY HOSPITAL)
&ORS. …RESPONDENTS

REQUISITE CERTIFICATE

Certified that the Civil Appeal is confined only to the pleadings before the Court

whose order is challenged and the other documents relied upon those

proceedings. No additional facts, documents or grounds have been taken

therein or relied upon in the Special Leave Petition. It is further certified that

the copies of the documents/annexures attached to the Special Leave Petition

are necessary to answer the question of law raised in the petition or to make

out grounds urged in the Special Leave Petition for consideration of this Hon’ble

Court. This Certificate is given on the basis of the instructions given by the

Petitioner whose Affidavit is filed in support of the Civil Appeal.

FILED BY:

(VIVEK NARAYAN SHARMA)

ADVOCATE ON RECORD

FOR THE PETITIONER

Drawn on: .06.2017

Filed on: .06.2017