18 November 2019


National Consumer Disputes Redressal Commission

Shreya Milind Nimonkar Vs. Seema Shanbhag and Ors.




Power to allow amendment of complaint/suit is wide, mere delay is not a ground for rejecting the amendment

Present appeal has been filed by the Appellant/complainant challenging the impugned order passed by Maharashtra State Consumer Disputes Redressal Commission, whereby the application for amendment of the complaint filed by the Appellant was rejected on the ground of delay. The Complainant has filed a complaint before the State Commission, for the alleged medical negligence during surgery performed by Dr. Seema Shanbhag, Opposite Party (OP). After notice of the complaint, the OP-Dr. Shanbhag had filed her written statement and affidavit of evidence. OP stated that, she was assisting surgeon, and the laparoscopic hysterectomy surgery was performed by Dr. Ujjwal Mahajan, ('Dr. Mahajan') the laparoscopic surgeon. The OP had also filed an expert opinion from Dr. Mahajan, who had performed the laparoscopic hysterectomy.

The Appellant submitted that, at the time of filing of the complaint, the patient was not aware of the surgery performed by Dr. Mahajan. OP never had disclosed Dr. Mahajan's details to the complainant and did not mention his name and other details in the case paper. Therefore, at the time of filing the complaint, complainant had not added the name of Dr. Mahajan, as one of the opposite parties. Accordingly, the complainant filed application for amendment of the complaint to add Dr. Mahajan as a necessary party (Proposed OP-2) before the State Commission.

The counsel further submitted that, the consumer Forum is primarily meant to provide better protection in the interest of consumers and not to short circuit the matter or defeat the claim on technical grounds. Even the Forum has power under Order I Rule 10(4) of Code of Civil Procedure, 1908 (CPC) and Rule 14(1)(b) of Consumer Protection Act, 1986 to give direction to implead a person who is necessary party. The cause of action was continuous and it was not new. Therefore, there was no delay in filing the application for amendment. The counsel submitted that the appeal before Medical Council of India against OP is pending. In the interest of justice, amendment application may be allowed. Otherwise, the complainant will suffer irreparable loss.

Admittedly, the complaint was filed on 9th November, 2012, whereas an amendment application was filed on 12th January, 2016. There was delay of 3 years 2 months. As per the affidavit of Dr. Mahajan, on the day of operation, he personally met the patient in the hospital and informed her that, he will be performing the operation and he will be assisted by Dr. Shanbhag. However, it is pertinent to note that, nowhere in the indoor case papers, the OP mentioned surgeon's details. The receipt of payment revealed surgeon's operative charges as Rs. 25,000 but no name of the surgeon was mentioned. The discharge card also did not show any details about the consultants. Therefore, initially the complainant did not add name of Dr. Mahajan as opposite party to the proceedings.

Order 1 Rule 10 of CPC enables the Court to add any person as party at any stage of the proceedings, if the person whose presence before the Court is necessary in order to enable the Court effectively and completely adjudicate upon and settle all the questions involved in the suit. Avoidance of multiplicity of proceedings is also one of the objects of the said provision. Merely because the, Plaintiff does not choose to implead a person is not sufficient for rejection of an application for being impleaded. The provisions of Order 1 Rule 10(2) CPC, are very wide and the powers of the Court are equally extensive. Even without an application to be impleaded as a party, the Court may, at any stage of the proceedings order that the name of any party, who out to have been joined whether as Plaintiff or Defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

Addition of the new proposed OP-2 Dr. Mahajan is absolutely necessary to adjudicate effectively and completely the matter in controversy between the parties. The amendment application filed by complainant was after 3 years, of filing of the complaint. The instant case is of alleged medical negligence. Under Order 1 Rule 10(2) of CPC, the power to allow the amendment of complaint/suit is wide. The consumer fora should not adopt hyper technical approach while considering amendment application to avoid multiplicity of litigations. It should be borne in mind that, mere delay is not a ground for rejecting the amendment. The order passed by the State Commission is set aside. The appeal is allowed.

Tags : Impleadment Amendment Rejection Validity

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