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. Mahajan at the time of filing the complaint. Since beginning, the patient was aware that, Dr. Mahajan was operating surgeon. Moreover, as a witness, Dr. Mahajan has filed his affidavit evidence, and he was cross examined by the complainant by the way of interrogatories. Therefore, the witness, who has been cross examined, cannot be impleaded as an Opposite party. The counsel further submitted that, the proceeding was barred under Doctrine of Waiver and Doctrine of Estoppel, therefore, prayed for the dismissal of appeal. The counsel further submitted that the complainant filed complaints before several authorities like Police, Maharashtra Medical council, State Women Commission, State Health authorities, NHRC, and Drugs Controller but, not succeeded. The complainant had attempted to defame the OP through social Media like TV, news paper and caused unnecessary harassment.
7. I have perused the relevant medical records on the file and given thoughtful consideration to the arguments from both the parties. Admittedly, the complaint was filed on 9.11.2012, whereas an amendment application was filed on 12.01.2016. 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 dated 15-11-2010 (Annexure F) 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, in my view, for the reasons stated above, initially the complainant, did not add name of Dr. Mahajan as opposite party to the proceedings.
8. In this context, I would like to rely upon the judgment of Hon'ble Supreme Court in the case of Savita Garg v/s. National Heart Institute MANU/SC/0882/2004 : (2004) 8 SCC 56, held as under:-
"So far as the law with regard to the non-joinder of a necessary party under Order 1 Rule 9 and Order I Rule 10 CPC is concerned, there also even no suit shall fail because of misjoinder or non-joinder of parties. It can proceed against the persons who are parties before the court. Even the court has the power under Order I rule 10(4) to give direction to implead a person who is a necessary party. Therefore, even if after the direction given by the Commission the doctor concerned and the nursing staff, who were looking after the deceased A, had not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole."
In the instant case, as stated by the counsel for complainant that, she immediately after filing the complaint approached OP for inspection of original indoor case papers, but OP refused it under garb that documents got stolen. Generally, private hospitals consist of panel of doctors in various specialities. The patient after admission will be examined and treated by a team of specialists and further by their junior doctors. Under such circumstances, for any alleged negligence, it is very difficult for the complainant to implead all the doctors.
9. Further, it would be better to look in to the theory of Dominus Litis and the provisions of the Order 1 of the Code of Civil Procedure(for short CPC), which deals with necessity of bringing parties to the suit for proper and effectual adjudication of the matter in dispute. 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.
10. Regarding the impleadment of parties and the provisions of Order 1 Rule 10(2) CPC are discussed in the judgments of Hon'ble Supreme Court in the case Mumbai International Airport (P) Ltd., vs. Regency Convention Centre and Hotels (P) Ltd. MANU/SC/0427/2010 : 2010 (7) SCC 417,
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure ('Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties.
(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought 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."
The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the question involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party. A 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. If a 'necessary party' is not impleaded, the suit itself is liable to be dismissed. A 'proper party' is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in disputes in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
11. Similarly, in the case of E. Vanaroja vs. S.K. Krishnan on 28 February, 2011, Hon'ble Madras High Court in the case in paragraph 9 and 10 held that;
9. Order 1 Rule 10(2) CPC reads as follows:
Court may strike out or add parties The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought 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.
10. It is a discretionary power of the Court that could be exercised, either upon application or without application, direct to implead necessary party for complete and proper adjudication, however, that is an exception to the general rule.
12. In the another case, Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., MANU/SC/0045/1962 : AIR 1963 SC 786, Hon'ble Supreme Court held that:
"a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
13. Keeping in view of the above basic principles laid down by Hon'ble Apex Court, where in the instant case, I find that addition of the new proposed OP-2 Dr. Mahajan is absolutely necessary to adjudicate effectively and completely the matter in controversy between the parties.
14. As pointed out earlier, the amendment application filed by complainant was after 3 years, of filing of the complaint. The instant case is of alleged medical negligence. Of course, under Order 1 Rule 10(2) 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.
15. In the light of the above principles, the appeal is allowed and the order passed by the State Commission is set aside. At this stage, without commenting on the merits of the case, lest it may cause prejudice to the parties, I direct both the parties to appear before the State Commission for further proceedings on 17.7.2018.
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