NON REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO.8983_OF 2010 (Arising out of SLP(C) No.5479 of 2009)

Dr. V.N. Shrikhande …….. Appellant

Versus

Mrs. Anita Sena Fernandes …….. Respondent

J U D G M E N T

G.S. Singhvi,  J.

1. Leave granted.

2. This appeal  is directed against  the order of the National Consumer  

Disputes  Redressal  Commission  (for  short,  ‘the  National  Commission’)  

whereby  the  order  passed  by  the  Maharashtra  State  Consumer  Disputes  

Redressal  Commission (for short,  ‘the State Commission’) dismissing the

complaint filed by the respondent as barred by limitation was reversed and  

the case was remitted for disposal of the complaint on merits.  

3. The respondent was employed as a Nurse in Government Hospital,  

Goa.  In 1993, she complained of pain in abdomen.  The doctors in Goa  

advised her to consult the appellant, who was having a hospital at Dadar,  

Mumbai.  After examining the report of the pathologist, which revealed that  

the respondent had stones in her 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.”  

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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:

“Findings

E/o circumferential mass in lesser sac involving under surface  of  left  lobe  (Segment  3)  of  liver  and  along  lesser  curve  of  stomach extending posteriorly to involve the anterior surface of  Pancreatic head.

Mass freed of the pancreas by division of adhesions and from  the lesser curve of stomach by successive ligation and division  of vessels and mass was freed of lesser curve with No.55 linear  butter to divide lesser curve of stomach.

Round ligament was divided. Wedge of liver, Segment 3, was excised with CUSA Haemostasis checked Drain kept in Morrisson’s pouch Abdomen was closed in layers

Post-operative:

She had a smooth and uneventful recovery”

6. Histopathology report dated 8.11.2002 prepared by Lilavati Hospital  

and Research Centre contained the following observations:

“GROSS EXAMINATION:

A shaggy surfaced firm brownish partly opened mass measures  6x5,  6x3cms  and  weighs  50  gms.   Several  gauze  pieces  aggregating  to  5.5x5.2cms  are  also  received  alongside  and  

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adherent  gauze  pieces  are  also  present  embedded  within  the  mass.   The cut  surface of  the tissue  is  brownish yellow and  shaggy.  Four small lymph nodes measuring 3mm each are also  observed.

CROSCOPIC EXAMINATION:

Walled within fibrous tissue, overlying the liver are sheets and  clumps of foamy histiocytes with scattered foreign body type  giant  cells  admixed  linear  strands  of  foreign  body  material.  Areas  of  necrosis  and  haemmorrhage  are  seen  in  areas  the  foreign  body  material  has  produced  a  sieve  like  pattern  surrounded by histiocytes, foreign body giant cells and fibrain.  Several  cholesterol  clefts  are  seen.   The  lymph nodes  show  sinus histiocytes and occasional reactive follicles.  The adherent  liver  shows focal  congestion  and haemmorrhage  towards  the  surface but is otherwise unremarkable.

There is no evidence of tuberculosis or malignancy.

DIAGNOSIS:

GAUZE  PIECES  WITHIN  A  MASS  IN  EPIGASTRIC  REGION  ADHERENT  TO  LIVER  –  FOREIGN  BODY  REACTION

LYMPH NODES – REACTIVE SINUS HISTIOCYTOSIS.”

7. After  receiving  report  of  the  Histopathology,  the  respondent  wrote  

letters to the appellant and demanded compensation 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  

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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 Section 17 of  

the Consumer Protection Act, 1986 (for short, ‘the Act’), which came to be  

registered as Complaint Case No.116 of 2004 and claimed compensation of  

Rs.50 lakhs by alleging that due to negligence of the appellant, a mass of  

gauze  was  left  in  her  abdomen  at  the  time  of  first  operation;  that  after  

discharge from the appellant’s hospital, the pain in her abdomen persisted  

and on that account she remained restless at home and also at work place;  

that her sufferings were endless and she had to spend sleepless nights and  

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mental stress for almost 9 years; that when the pain became unbearable, she  

had to be admitted in Government Hospital, Goa in September, 2002 and  

C.T. scan done on 23.9.2002 revealed existence of a mass in her abdomen,  

which was finally removed at Lilavati Hospital, Bombay.  The respondent  

pleaded that she and her family had suffered mental and physical stress for 9  

years and had to incur cost of Rs.1,28,522/- for the second operation.  The  

respondent further pleaded that if the appellant had acted with due care and  

caution, she would not have suffered for 9 years and may not have been  

required to undergo second surgery.   

9. In  his  reply,  the  appellant  denied  the  allegation  of  negligence  and  

averred that the respondent had never contacted him with the complaint of  

pain or discomfort.  He reiterated the contents of letter dated 31.1.2003 and  

prayed that the complaint be dismissed as barred by limitation.   

10. By an  order  dated  17.3.2006,  the  State  Commission  dismissed  the  

complaint as barred by time on the ground that the cause of action for filing  

the complaint had accrued to the respondent on the date of her discharge  

from the appellant’s hospital i.e. 30.11.1993 and the complaint could have  

been filed within next 2 years. The National Commission reversed that order  

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and held  that  though the  cause  of  action had arisen  for  the  first  time in  

November,  1993  when  operation  was  performed  on  her  gall  bladder,  it  

continued and subsisted throughout the period because she had constant pain  

in the abdomen and lastly it arose on 25.10.2002 when she was operated for  

the second time at Lilavati Hospital and gauze allegedly left by the appellant  

at the time of first surgery was found.

11. Shri Soli J. Sorabjee, learned senior counsel argued that the complaint  

filed  by  the  respondent  on  19.10.2004  in  relation  to  the  alleged  act  of  

negligence 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  

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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 argued that the consumer forums established under  

the  Act  do not  have  the  power  to  dismiss  the  complaint  at  the  stage  of  

admission and, in any case, the complaint of the respondent should not have  

been dismissed by the State Commission as barred by time ignoring that she  

had suffered for 9 long years due to negligence of the appellant.  Learned  

counsel further argued that the complaint filed by the respondent in October,  

2004 was within limitation because she could come to know about the gauze  

left  in  her  abdomen  at  the  time  of  first  surgery  only  after  receiving  

Histopathology  report  dated  8.11.2002.   Learned  counsel  referred  to  the  

“Discovery Rule” evolved by the Courts in United States and submitted that  

even  though  the  respondent  was  employed  as  a  Nurse  in  Government  

Hospital, Goa, she had no reason to suspect that gauze might have been left  

in her abdomen at the time of surgery performed in November, 1993 and the  

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State Commission was not at all justified in non suiting her on the premise  

that the cause of action had accrued in the year 1993.  Learned counsel lastly  

argued that the question of limitation is a mixed question of law and fact and  

the  State  Commission  could  not  have  decided  the  same  without  giving  

opportunity to the parties to adduce evidence.

13. We shall  first  consider  the  question  whether  the  consumer  forums  

established under the Act can refuse to admit the complaint on the ground  

that the same is barred by time.  The decision of this question depends on the  

interpretation of Sections 12(1), (3), (4), 18, 22 and 24A of the Act, which  

are reproduced below:

“12. Manner  in  which  complaint  shall  be  made.–  (1)  A  complaint in relation to any goods sold or delivered or agreed to  be sold or delivered or any service provided or agreed to be  provided may be filed with a District Forum by–

(a) the  consumer  to  whom  such  goods  are  sold  or  delivered or agreed to be sold or delivered or such  service provided or agreed to be provided;

(b) any recognised consumer association whether the  consumer to whom the goods sold or delivered or  agreed to be sold or delivered or service provided  or  agreed  to  be  provided  is  a  member  of  such  association or not;

(c) one or more consumers, where there are numerous  consumers  having  the  same  interest,  with  the  permission of the District Forum, on behalf of, or  for the benefit of, all consumers so interested; or

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(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  consumer  association”  means  any  voluntary  consumer  association  registered  under  the  Companies  Act,  1956 (1 of 1956) or any other law for the time being in force.

18. Procedure  applicable  to  State  Commissions.–  The  provisions  of  sections  12,  13  and  14  and  the  rules  made  thereunder for the disposal of complaints by the District Forum  shall,  with  such  modifications  as  may  be  necessary,  be  applicable to the disposal of disputes by the State Commission.

22. Power  and  procedure  applicable  to  the  National  Commission.  – (1) The provisions of sections 12, 13 and 14  and the rules made thereunder for the disposal of complaints by  

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the  District  Forum shall,  with  such modifications  as  may  be  considered necessary by the Commission, be applicable to the  disposal of disputes by the National Commission.

(2) Without  prejudice  to  the  provisions  contained  in  sub- section (1), the National Commission shall have the power to  review any order made by it, when there is an error apparent on  the face of record.

24A.  Limitation  period.–  (1)  The  District  Forum,  the  State  Commission  or  the  National  Commission  shall  not  admit  a  complaint unless it is filed within two years from the date on  which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a  complaint may be entertained after the period specified in sub- section (1), if the complainant satisfies the District Forum, the  State Commission or the National Commission, as the case may  be,  that  he  had  sufficient  cause  for  not  filing  the  complaint  within such period:

Provided  that  no  such  complaint  shall  be  entertained  unless the National Commission, the State Commission or the  District  Forum,  as  the  case  may  be,  records  its  reasons  for  condoning such delay.”              

14. A  reading  of  the  above  noted  provisions  makes  it  clear  that  the  

District Forum, the State Commission and the National Commission are not  

bound to admit each and every complaint.  Under Section 12(3), the District  

Forum is empowered to decide the issue of admissibility of the complaint.  

The District  Forum can either allow the complaint  to be proceeded with,  

which implies that the complaint  is admitted or reject  the same.   Similar  

power  is  vested  with  the  State  Commission  under  Section  18  and  the  

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National Commission under Section 22.  If the concerned forum is prima  

facie satisfied that the complainant is  a ‘consumer’ as defined 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 complaint is per se barred by time and the  

complainant does not seek condonation of delay under Section 24A(2), the  

consumer forums will have no option but to dismiss the same.  Reference in  

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this connection can usefully be made to the recent judgments in State Bank  

of  India  v.  B.S.  Agricultural  Industries  (I) (2009)  5  SCC  121  and  

Kandimalla Raghavaiah and Company v. National Insurance Company  

and another (2009) 7 SCC 768.  Section 26 is  another provision which  

empowers the consumer forums to dismiss the complaint if it is found that  

that same is frivolous and vexatious.  The exercise of this power is hedged  

with the condition that the concerned consumer forum must record reasons  

for dismissal of the complaint.  

15. We may hasten to add that the power conferred upon the consumer  

forums under Sections 12(3), 18 or 22 to reject the complaint at the stage of  

admission should not be exercised lightly because the Act has been enacted  

to provide for better protection of the interest of consumers and the speedy  

and  inexpensive  redressal  mechanism enshrined  therein  is  in  addition  to  

other remedies which may be available to the consumer under the ordinary  

law of  land.   Therefore,  admission  of  the  complaint  filed  under  the  Act  

should be the rule and dismissal thereof should be an exception.  Of course,  

if the complaint is barred by time, the consumer forum is bound to dismiss  

the same unless the consumer makes out a case for condonation of delay  

under Section 24A(2).    

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16. The  next  question  which  merits  consideration  is  whether  the  

complaint  filed  by  the  respondent  was  within  limitation  and  the  State  

Commission committed an error by dismissing the same as barred by time.  

A perusal of order dated 17.3.2006 shows that after adverting to the report of  

Dr. P. Jagannath, in which there was no mention of any gauze having been  

found in the abdomen of the respondent, the State Commission held that this  

was sufficient for recording a negative finding on the issue of negligence on  

the part of the appellant while conducting operation on 26.11.1993.  The  

State Commission then observed that the complainant had not produced any  

prescription for the treatment taken for 10 years prior to 25.10.2002 to show  

that she was suffering from unbearable pain, was having sleepless nights and  

was unable to perform her duties as Nurse in Government Hospital, Goa and  

held  that  in  the  absence  of  such  evidence,  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  

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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 the abstract meaning of words’,  states Craies, ‘if there be any such thing, is of little value in  interpreting  statutes’.  ...  in  determining  the  meaning  of  any  word or  phrase  in  a  statute  the  first  question  to  be asked is  — ‘What is  the natural  or ordinary meaning of that word or  phrase in its context in the statute? It is only when that meaning  leads to some result which cannot reasonably be supposed to  have been the intention of the legislature, that it  is proper to  look for some other possible meaning of the word or phrase.’  The context,  as  already  seen,  in  the  construction of  statutes,  means the statute as a whole, the previous state of the law, other  statutes in pari materia, the general scope of the statute and the  mischief that it was intended to remedy.”

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In  RBI v.  Peerless  General  Finance  and  Investment  Co.  Ltd.  

(1987) 1 SCC 424, Chinnappa Reddy, J. referred to the rule of contextual  

interpretation and observed:  

“Interpretation must depend on the text and the context. They  are the bases of interpretation. One may well say if the text is  the  texture,  context  is  what gives the  colour.  Neither  can be  ignored. Both are important. That interpretation is best which  makes the textual interpretation match the contextual. A statute  is best interpreted when we know why it was enacted. With this  knowledge, the statute must be read, first as a whole and then  section by section, clause by clause, phrase by phrase and word  by  word.  If  a  statute  is  looked  at,  in  the  context  of  its  enactment, with the glasses of the statute-maker,  provided by  such  context,  its  scheme,  the  sections,  clauses,  phrases  and  words  may  take  colour  and  appear  different  than  when  the  statute is looked at without the glasses provided by the context.  With  these glasses  we must  look at  the Act  as  a  whole  and  discover what each section, each clause, each phrase and each  word is meant and designed to say as to fit into the scheme of  the entire Act. No part of a statute and no word of a statute can  be construed in isolation.”

18. In cases of medical negligence, no straitjacket formula can be applied  

for determining as to when the cause of action has accrued 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-

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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 applied in Morgan v.  

Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156.  In that case a piece of  

sponge  had  been  left  in  the  wound  during  a  surgical  operation  but  its  

presence in the body did not come to light until 10 years later.  The Court  

rejected the objection of limitation and observed:

“It simply places an undue strain upon common sense, reality,  logic  and  simple  justice  to  say  that  a  cause  of  action  had  ‘accrued’ to the plaintiff until the X-ray examination disclosed  a  foreign  object  within  her  abdomen  and  until  she  had  

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reasonable  basis  for  believing  or  reasonable  means  of  ascertaining that the foreign object was within her abdomen as  a  consequence  of  the  negligent  performance  of  the  hysterectomy.”

Again, the Court observed:

“We believe that the ‘discovery rule’ as stated and applied in  cases  cited  above  represents  a  distinct  and  marked  trend  in  recent decisions of appellate courts throughout the nation.”

In Idaho,  the Discovery Rule was invoked in Billings v. Sisters of  

Mercy of Idaho, 86 Idaho 485, 389 P.2d 224.  The facts of that case were  

that the plaintiff underwent a surgical operation in 1946.  A sponge was left  

in the wound when the incision was closed.  The same was discovered in the  

patient’s body in 1961.  During the intervening period the patient sustained  

considerable  suffering,  during  which  she  consulted  various  physicians.  

After reviewing numerous authorities at great length, the Court cast aside the  

earlier doctrine, adopted the Discovery Rule and observed:

“In reality, the ‘general rule’ has little to recommend it.  It is  neither the position of a majority of the jurisdictions nor is it  firmly based on considerations of reason or justice.  We will,  therefore, adhere to the following rule: where a foreign object is  negligently left in a patient’s body by a surgeon and the patient  is  in  ignorance  of  the  fact,  and consequently  of  his  right  of  action for malpractice, the cause of action does not accrue until  the patient learns of, or in the exercise of reasonable care and  diligence should have learned of the presence of such foreign  object in his body.”

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The facts in Quinton v. United States, 304 F.2d 234 were that the wife  

of  the  plaintiff  was  given blood transfusion in  a Government hospital  in  

1956.  In June, 1959, the plaintiff and his wife during the latter’s pregnancy  

discovered that wrong type of blood was given to her in 1956 and as a result  

she gave birth to a stillborn child.  The Government sought dismissal of the  

action 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  

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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 compatible harmony with the  purpose  for  which  Statutes  of  Limitation  were  enacted  and  strikes a fair balance in the field of medical malpractice.  The  unsoundness of the traditional rule, as applied in the case where  an object  is  discovered in the plaintiff’s  body,  is  patent.   “It  simply  places  an  undue  strain  upon  common  sense,  reality,  logic  and  simple  justice  to  say  that  a  cause  of  action  had  ‘accrued’ to the plaintiff until the X-ray examination disclosed  a  foreign  object  within  her  abdomen  and  until  she  had  reasonable  basis  for  believing  or  reasonable  means  of  ascertaining that the foreign object was within her abdomen as  a consequence of the negligent performance of the operation.”

In  the  case  before  us,  the  danger  of  belated,  false  or  frivolous  claims  is  eliminated.   In  addition,  plaintiff’s  claim  does  not  raise  questions  as  to  credibility  nor  does  it  rest  on  professional diagnostic judgment or discretion.  It rests solely  on the presence of a foreign object within her abdomen.

The policy of insulating defendants from the burden of  defending stale claims brought by a party who, with reasonable  diligence, could have instituted the action more expeditiously is  not  a  convincing  justification  for  the  harsh  consequences  resulting from applying the same concept of accrual in foreign  object cases as is applied in medical treatment cases.  A clamp,  though immersed within the patient’s body and undiscovered  for  a  long  period  of  time,  retains  its  identity  so  that  a  defendant’s  ability  to  defend  a  “stale”  claim  is  not  unduly  impaired.

Therefore,  where a foreign object  has negligently been  left  in the patient’s  body,  the Statute  of Limitations will  not  begin to run until the patient could have reasonably discovered  the malpractice.”  

(Emphasis added)

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The proposition laid down in Flaganan’s case was reiterated in John  

D. Adams and Jeanette S. Adams v. New Rochelle Hospital Medical Center,  

919 F.Supp.711.

20. In the light of the above, it is to be seen whether the cause of action  

accrued to the respondent on 26.11.1993 i.e. the date on which the appellant  

performed ‘Open Cholecystectomy’ and the piece of gauze is said to have  

been  left  in  her  abdomen  or  in  November,  2002  when  she  received  

Histopathology report  from Lilavati  Hospital.   If  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  

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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  sufferings  of  the  complainant  were  endless,  had to  spend sleepless  nights  and  mental  strain  for  almost  nine  years  and  as  the  pain  became  unbearable by the passage of time, the complainant had to be  admitted  in  the  Government  Hospital  in  Goa  in  September,  2002……………..”  

A similar statement was made by her in the affidavit filed before the  

National  Commission,  paragraphs  2  and  3  (two  paragraphs  have  been  

marked as 3) of which read as under:  

“2. I say that to arrest the pains, sufferings and mental strains  during the period of nine years I was taking tablets and their  names are as follows:

Tablets

CYCLOPAM BRUFEN -400mg CROCIN DICLO FENAC

3. As a nurse in the Government Hospital I know from my  personal  knowledge  that  the  aforesaid  tablets  are  taken  as  painkillers, to suppress the pain and to arrest the pain.

3. I  say  that  because  of  the  pains,  sufferings  and mental  strains.  I had to often apply for leave at the place where I was  

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posted.  The number of days I was on leave and the leave that I  have taken from 1.12.1993 to 17.06.2002 on account of pains,  sufferings and mental strains is mentioned herein below:

From 22.11.93 to 23.12.93 – 32 days    ” 24.12.93 to 31.12.93 – 8 days (Sick leave–S.L.16

       days)     ” 01.01.94 to 22.01.94 – 22 days (S.L. 44 days)    ” 27.07.94 to   7.08.94 – 12 days (S.L. 24 days)

   ” 30.09.04 to    - -        –   1 days (S.L. 02 days)    ” 17.05.96 to 26.05.96 – 10 days      ” 15.07.96 to 21.07.96 – 7 days (S.L. 14 days)    ” 01.02.97 to 06.02.97 – 13 days    ” 19.03.99 to 26.03.99 – 8 days    ” 21.03.00 to 23.03.00 – 3 days (S.L. 6 days)    ” 17.03.01 to 22.03.01 – 6 days    ” 21.05.01 to 27.05.01 – 7 days    ” 21.06.01 to 23.06.01 – 3 days (S.L. 6 days)    ” 17.02.02 to 20.02.02 – 4 days (S.L. 8 days)    ” 13.03.02 to 22.03.02 – 10 days

   ” 16.06.02 to 17.06.02 – 2 days (S.L. 4 days)”       

 21. The  respondent  was  not  an  ordinary  layperson.   She  was  an  

experienced Nurse and was employed in the Government Hospital.    It was  

the  respondent’s  case  before  the  State  Commission  and  the  National  

Commission that after the surgery in November, 1993, she was having pain  

in the abdomen off and on and, on that account, she was restless at home and  

also at work place and had to take leave including sick leave on various  

occasions.  Therefore, 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  

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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  in  the  Government  Hospital  where  she  was  

employed.  Any person of ordinary prudence, who may have suffered pain  

and discomfort after surgery would have consulted the concerned surgeon or  

any other competent doctor and sought his advice but the respondent did  

nothing except taking some pain killers.  If the respondent had been little  

diligent, she would have contacted the appellant and informed him about her  

sufferings.   In  that  event,  the  appellant  may  have  suggested  appropriate  

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medicines or advised her to go for X-ray or C.T. scan.  If piece of gauze was  

found in the abdomen of the respondent, the appellant would have certainly  

taken remedial measures.  The respondent has not explained as to why she  

kept quite for about 9 years despite pain and agony.  The long silence on her  

part  militates  against  the  bonafides  of  the  respondent’s  claim  for  

compensation and the Discovery Rule cannot be invoked for recording a  

finding that  the  cause  of  action  accrued to  her  in  November,  2002.  The  

National Commission, in our considered view, was clearly wrong when it  

held that cause of action lastly arose to the respondent on 25.10.2002 when  

the second surgery was performed at Lilavati  Hospital and the complaint  

filed by her on 19.10.2004 was within limitation.  

22. In the result, the appeal is allowed.  The impugned order is set aside  

and the complaint filed by the respondent is dismissed.    The parties are left  

to bear their own costs.

….………………….…J. [G.S. Singhvi]

…..…..………………..J. [Asok Kumar Ganguly]

New Delhi October 20, 2010.

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