S.M. Kantikar ORDER
Dr. S.M. Kantikar, (Presiding Member)
1. This appeal has been filed by the appellant/complainant challenging the impugned order dated 10.04.2017 passed in C.C. No. 327 of 2012 by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short "State Commission") whereby the application for amendment of the complaint filed by the appellant was rejected on the ground of delay.
2. Brief facts relevant to decide this appeal are that;
On 9.12.2012, the complainant, Sherya Milind Nimonkar (for short "the patient) has filed a complaint before the State Commission, at Mumbai for the alleged medical negligence during surgery performed by Dr. Seema Shanbhag, the OP(for short 'Dr. Shanbhag')
3. 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, (for short 'Dr. Mahajan') the laparoscopic surgeon. The OP had also filed an expert opinion from Dr. Mahajan, who had performed the laparoscopic hysterectomy.
4. Heard the learned counsel for both the parties. Ms. P. Joshi Deshpande, the learned counsel for Complainant, vehemently argued that, it was the case of gross medical negligence. Dr. Mahajan (proposed OP-2) had performed the surgery without consent of the patient; it was an unethical and unlawful act. The indoor case papers did not bear the name of Dr. Mahajan, therefore complainant was not aware that Dr. Mahajan had performed the surgery. The counsel further 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. Subsequently, the complainant came to know about Dr. Mahajan, when he filed his affidavit evidence as an expert opinion. 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 submitted that, the matter was still in the evidence stage, as it was not yet posted for oral arguments. Moreover, the OP has filed vague replies to the interrogatories. The patient was treated by Dr. Shanbhag from March, 2010 till November, 2010. The pre-operative treatment record did not show the name of proposed OP-2, the patient was ignorant about the medical and technical words in the medical record; therefore, the complainant filed a consumer complaint against OP-Dr. Shanbhag only. Dr. Shanbhag had concealed material details in her written version filed before the State Commission.
5. 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 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. The counsel for complaint has relied upon the decision of Hon'ble Supreme court in the case of Savita Garg Vs. National Heart Institute (2004) 8 SSC 56.
6. The counsel Dr. G.N. Shenoy for OP submitted that, the application was filed at the stage when, the pleadings were complete and the matter was ripe for final hearing. Therefore, the amendment application for adding Dr. Ujjwal Mahajan as a party at belated stage shall not be allowed. The complaint was filed in early 2012, but the amendment application was filed in 2016. The complainant should have impleaded Dr. Maha........