State Consumer Disputes Redressal Commission
Hardev Singh vs Sangha Eye Hospital on 19 August, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.532 of 2006.
Date of Institution: 05.04.2006.
Date of Decision: 19.08.2011.
Hardev Singh S/o Puran Singh, Resident of Ward No.9, Lohian Khas, Tehsil
Shahkot, District Jalandhar.
.....Appellant.
Versus
1. Sangha Eye Hospital, 33, Gujral Nagar, Jalandhar-144001 through its
Medical Incharge.
2. Dr. S.S. Sangha C/o Sangha Eye Hospital, 33, Gujral Nagar,
Jalandhar.
3. S.B. Dr. Sohan Singh Eye Hospital, Katra Sher Singh, Amritsar
through its Medical Incharge.
4. Dr. Rajbir Singh C/o S.B. Dr. Sohan Singh Eye Hospital, Katra Sher
Singh, Amritsar.
5. New India Assurance Company Limited, Ludhiana through its Branch
Manager.
6. New India Assurance Company Limited, Branch Court Road, Amritsar,
through its Branch Manager.
.....Respondents.
First Appeal against the order dated
08.03.2006 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Sh. Inderjit Kaushik, Presiding Member.
Mrs. Amarpreet Sharma, Member.
Present:-
For the appellant : Ms Amandeep Soni, Advocate.
For respondents no.1-4 : Sh. Updip Singh, Advocate.
For respondents no.5-6 : Sh. Parminder Singh, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.532 of 2006 (Hardev Singh Vs Sangha Eye Hospital and Ors.) and First Appeal No. 1096 of 2006 (Sangha Eye Hospital and Anr. Vs. Hardev Singh and First Appeal No.532 of 2006 2 Anr.), as both the appeals are directed against the same impugned order dated 08.03.2006 passed by the District Consumer Disputes Redressal Forum, Jalandhar (in short "District Forum"). The facts are taken from 'First Appeal No. 532 of 2006' and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Hardev Singh, appellant/complainant (hereinafter called as "the appellant") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, on the allegations that the appellant was working as driver in Abu-dhabi (U.A.E.) and drawing 2600 Dehram per month as salary. He developed cataract in his left eye and came to India for curing the defect and approached respondents no.1 & 2 for treatment and it was informed that the operation has to be conducted on his left eye and Rs.10,000/- would be the approximate expenses and his eyesight will be alright. The appellant on the advice of respondents no.1 & 2, got himself registered vide no.4029/02 dated 23.09.2002 and was operated upon on 28.09.2002. Before the operation, the appellant could see, although it was slight weak eyesight. Had respondents no.1 & 2 advised the appellant that the eye could not be set right, then he would not have opted for the operation.
3. After the operation, he was discharged from the hospital of respondents no.1 & 2 on 29.09.2003 with prescription of medicines and was told to report back after 7 days. The appellant at the time of discharge, informed respondents no.1 & 2 that he was not in a position to see anything through the operated eye, but the doctors told him that everything will be alright within the due course of time. After 7 days, he reported back on 07.10.2002 and told the doctor incharge that there was no improvement in his eye and he could not see anything. Respondent no.2 admitted that operation was not successful and regretted for their negligence, but promised that the eye would be set right by carrying out another operation. Thereafter, two First Appeal No.532 of 2006 3 consecutive operations were performed on 11.10.2002 and on 15.10.2002 on the left eye, but without any result.
4. Thereafter, respondents no.1 & 2 told the appellant to move to Amritsar and issued a letter dated 16.10.2002 to respondents no.3 & 4 in this context. Scanning of left eye was done at Amritsar and he was operated upon again on 24.10.2002 at Amritsar and he was informed that nothing could be done to bring any light to his left eye. In other words, the appellant lost the eyesight of his left eye permanently.
5. The appellant approached the Medical Research Foundation (Regd.), Chennai, an Institution in the field of Eye Specialization and he was informed that the eye has been totally damaged and no lens can be implanted. Due to the negligent act of the respondents, the left eye of the appellant was damaged and he has become physically handicapped and is not able to see. Respondents no.3 & 4 charged Rs.21.000/- from the appellant and Rs.8000/- were incurred on medicines and other expenses.
6. Appellant is 52 years old and he was working as a driver in Abu- dhabi and was drawing 2600 Dehram (Rs.34,000/- per month) as salary and was having a valid visa upto 2005 which was supposed to be extended till the age of his retirement i.e. 60 years. The appellant suffered loss of Rs.9,18,000/- due to losing of his job till the visa time or Rs.34.00 lacs till his retirement, but the appellant is claiming Rs.10.00 lacs as damages. The prayer was made that the respondents be directed to pay Rs.54,000/- spent on treatment of his eye, Rs.2.00 lacs as compensation, Rs.10.00 lacs due to loss of job and Rs.5000/- as costs of litigation.
7. In the reply filed on behalf of respondents no.1 & 2, it was admitted that the appellant came to hospital of respondent no.2 in September, 2002 and he was having cataract in his left eye. On his examination, he was fully apprised of the ailment which the appellant was suffering. He was advised surgery for the improvement of his vision. He was also told that the chances of operation are reasonably high, but sometimes unforeseen First Appeal No.532 of 2006 4 complications do arise after cataract operation and he consented to have the surgery done from respondent no.2 and came to the hospital of respondent no.2 on 28.09.2002 and at that time, he had a very poor vision because of the cataract in the eye. The cataract operation is very common and removal of cataract lens is a common procedure in the surgery. No surgery can be foolproof. For surgery, his brother signed the consent letter after understanding the reasons and the benefits. The appellant was also made to understand the benefit of the surgery as well as the risks involved and after accepting the same, he asked his brother to sign the consent letter.
8. After surgery, appellant was discharged from the hospital on 29.09.2002. The dressing was removed and the appellant could clearly read upto the last line of the chart placed in the clinic of every eye hospital and his vision was found to be 6 x 6 which is the best vision possible for an individual. At the time of discharge, he was told that in case he experiences any pain in the eye or there is any loss of vision, he should immediately report back to respondent no.2 and not to wait for 7 days. The appellant came to respondent no.2 on 07.10.2002 with a history of pain in his left eye since 05.10.2002 and loss of vision since 06.10.2002, but he did not report back on 05.10.2002 when he felt pain in the operated eye for the first time and wasted two days. On 07.10.2002, appellant was immediately examined and was found suffering from infection/inflation in the inner chamber of the eye and respondent no.2 immediately started the management procedure for the said ailment. The appellant did not suffer from any problem because of any negligence on the part of respondent no.2, but due to his own fault and on 07.10.2002, he was told that the ailment was serious and respondent no.2 will do his best to cure him.
9. It was admitted that when the conservative method of treating the ailment of the appellant did not help, respondent no.2 conducted surgery on 11.10.2002 as well as on 15.10.2002, to drain out the infection in the interior chamber of the eye. These operations were conducted without First Appeal No.532 of 2006 5 charging any money, in order to help the patient in regaining his vision. Under the given circumstances, respondent no.2 performed 'Pars Plana Vitrectomy' on the infected eye to drain out the infection, but the condition of the appellant did not improve and he was referred to Dr. Rajbir Singh of Amritsar. Appellant lost his eyesight because of infection which occurs in rare cases. Loss of vision and complication that occurred in the eye of the appellant, cannot be attributed in any manner to respondent no.2. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the reply filed on behalf of respondents no.3 & 4, preliminary objections were taken that the complaint is not maintainable. Surgery in question was performed by Dr. Preetam Singh, Specialist in the respondent no.3-hospital and respondent no.3 has nothing to do with it. Respondent no.3 including its treating doctors have been covered under Professional Indemnity Insurance Policy for Medical Establishment with New India Assurance Company Limited vide cover note dated 09.03.2002 renewed vide policy dated 11.03.2003. The appellant has not approached the Forum with clean hands and there is no negligence or deficiency in service on the part of the answering respondents. The sufferings of the appellant, if any, are due to known complications of the type of surgery the said patient had already undergone before coming to the answering respondents. The complaint has been filed after undue delay on frivolous grounds and is liable to be dismissed.
11. On merits, it was admitted that the appellant was referred by respondents no.1 & 2 and he was examined by Dr. Rajbir Singh on 16.10.2002 and the patient had complaint of pain with vision drop after eight days of cataract surgery done on 28.09.2002 and was diagnosed to be suffering from Post-operative Endophthalmitis. After further investigations, Vitrectomy was performed by Dr. Preetam Singh on 24.10.2002 and the patient was discharged on 26.10.2002, but the eye could not be saved despite giving of proper standard treatment by the qualified doctors. Only First Appeal No.532 of 2006 6 Rs.10,750/- were charged. For medicines, the patient has to pay to the chemist. The appellant has filed a false complaint and prayed that the same be dismissed with costs of Rs.10,000/-.
12. In the reply filed on behalf of respondents no.5 & 6, preliminary objections regarding privity of contract and the appellant being not consumer were taken. On merits, it was admitted that policy no.360901/49/02/0003 has been issued in the name of Sangha Eye Hospital valid effective from 08.07.2002 to 07.07.2003 and similarly, policy no.360500/46/00399 has been issued by the answering respondents to Dr. Sohan Singh Sangha Eye Hospital valid w.e.f. 11.03.2003 to 10.03.2004. No operation was performed by respondents no.3 & 4 and the answering respondents are not liable. All other allegations were denied and it was prayed that the complaint may be dismissed.
13. Parties adduced evidence in support of their respective versions by way of affidavits and documents.
14. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that even though the patient had come late, yet respondents no.1 & 2 cannot be absolved in presumed negligence, as the result was fatal of the eye of the appellant and he lost eyesight of his left eye. Second and third operations were conducted after a delay of four days but there is no evidence regarding loss of his job or income, and directed respondents no.1,2 & 5 to pay Rs.1.00 lac as compensation and Rs.3000/- as costs of litigation, and dismissed the complaint against respondents no.3,4 & 6.
15. Aggrieved by the impugned order dated 08.03.2006, the appellant-Hardev Singh has come up in the present appeal, with a prayer to enhance the compensation.
16. On the other hand, respondent no.1-Sangha Eye Hospital and another have filed cross appeal i.e. First Appeal No.1096 of 2006 (Sangha First Appeal No.532 of 2006 7 Eye Hospital & Anr. Vs Hardev Singh & Anr.), with a prayer to set aside the impugned order and to dismiss the complaint.
17. We have gone through the pleadings of the parties, perused the record of the District Forum and heard the arguments advanced by the learned counsel for the parties.
18. Learned counsel for the appellant contended that the appellant was working as driver in Abu-dhabi and came to India for curing the defect of cataract in his left eye and contacted respondents no.1 & 2, who advised him to undergo operation for the removal of cataract and without explaining any complications, he was operated upon on 28.09.2002 and was discharged on the next day. The appellant at the time of discharge, complained of no visibility in the left eye, but he was asked to take medicines and report back after seven days. The appellant felt pain and loss of vision and reported on 7th day with the complaint of pain and no vision in the left eye and respondent no.2 again carried out the operation 2nd time on 11.10.2002 and again on 15.10.2002, but the vision could not be restored and he was referred to Dr. Rajbir Singh at Amritsar. There again, the operation was conducted but the vision could not restored. The appellant contacted the Medical Research Foundation (Regd.), Chennai, but he was told that he has lost vision of left eye permanently and no lens can be inserted, nor any remedy is available. The appellant has suffered loss due to the negligence of respondent no.2 and there is deficiency in service on the part of the respondents. The appellant also suffered a loss of Rs.10.00 lacs for losing his job, as he was not allowed to go back because of the permanent disability and loss of vision of left eye. The District Forum has not awarded any amount because of the loss of job, although sufficient evidence was led. The compensation awarded is also inadequate and prayed that the appeal may be accepted and the compensation be enhanced and the amount of loss suffered on account of losing the job be also awarded.
First Appeal No.532 of 2006 8
19. On other hand, it was contended on behalf of the respondents, that respondent no.2 is a qualified surgeon and he has carried out many operations and the cataract surgery was not a complicated surgery and after the operation at the time of discharge on 29.09.2002, the eyesight of the appellant was 6 x 6 and he was asked to come back on 07.10.2002 but in case of pain, he should report immediately, but the appellant reported back on 07.10.2002, although he was suffering pain in the left eye since 05.10.2002 and due to pain, the infection in the left eye developed and it was due to the negligence of the appellant himself and had he come on 05.10.2002, the pain could be managed and even the vision should not have been lost. As per medical literature Ex.R8 and Ex.R9, the infection in the eye after cataract operation is a known complication and the same cannot be termed as negligence. The appellant was immediately referred to Super Specialist Dr. Rajbir Singh and he has filed his affidavit Ex.R1 and no medical negligence is attributed to respondents no.1 & 2. The District Forum has based its judgment on conjectures and surmises and the order of the District Forum is not sustainable and the same is liable to be set aside.
20. We have considered the submissions made by the learned counsel for the parties and have thoroughly scanned the entire material placed on the file.
21. Admittedly, the cataract surgery was performed by respondent no.2 on the left eye of the appellant and the operation was conducted on 28.09.2002 and the appellant was discharged on the next day and he was asked to report on 7th October. As per Ex.C6, on 28.09.02 the vision of the left eye was 6/18 and after the operation, it is stated that it was 6 x 6. The appellant in his affidavit Ex.C1 has deposed that he informed respondents no.1 & 2 that he was not in a position to see anything. In this situation, it was incumbent upon respondent no.2 to ask the appellant to stay back and to look into the complaint of the appellant, but he was asked to come back on 7th October, 2002. The version of the respondents no.1 & 2 is that at the time of First Appeal No.532 of 2006 9 discharge, medicines were prescribed and the appellant was asked to report immediately in case of pain. Document Ex.C6 shows that the appellant was discharged on 29.09.2002 and medicines were prescribed and he was asked to report on 07.10.2002 and he was again operated upon on 11.10.2002 as well as on 15.10.2002, but nowhere it is mentioned that he should report immediately in case of pain in the eye and vide Ex.C7, appellant was referred to Dr. Rajbir Singh. On behalf of respondent no.2, reliance was placed on the authority of the Hon'ble Supreme Court in case "Kusum Sharma & Others Vs Batra Hospital & Medical Research Centre & Ors.", 2010 NCJ- 449(SC). The Hon'ble Supreme Court in Para-94, quoted 11 principals which are to be kept in mind. Relevant are whether the medical practitioner is guilty of medical negligent or not? Principal No.IV says that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and medical negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and he should not be unnecessarily harassed or humiliated.
22. Applying the above principals to the facts and circumstances of the present case, it emerges that whether respondent no.2 after performing the operation was not to see that post operative care is also taken to avoid any mishap or to discharge the appellant when the post operation care was necessary? Respondent no.2 instead of taking care of the appellant, after the operation without satisfying himself, discharged him and asked him to come after seven days and when after seven days the appellant reported, he lost the vision of the left eye permanently. Thereafter, he was referred to Dr. Rajbir Singh, Super Specialist, who also could not do anything and appellant approached the Medical Research Foundation (Regd.), Chennai, an Institution in the field of Eye Specialization, where it was clearly told to the appellant that he has lost his left eye permanently and no lens can be implanted.
First Appeal No.532 of 2006 10
23. Thus, from the above, it is clear that there was some negligence on the part of respondent no.2 and for that reason, appellant lost vision of his left eye permanently and the appellant has become handicapped of one eye. The District Forum has awarded a very reasonable compensation and there is no ground to interfere with the impugned order, as the appellant has failed to bring forth any evidence for enhancement of the compensation.
24. In view of above discussion, the appeal (F.A. No.532 of 2006) filed by the appellant/complainant-Hardev Singh is dismissed and the impugned order dated 08.03.2006 under appeal passed by the District Forum is affirmed and upheld. No order as to costs.
First Appeal No.1096 of 2006:-
25. In view of the reasons and discussion held in F.A. No.532 of 2006, that appeal i.e. F.A. No.1096 of 2006 (Sangha Eye Hospital and Anr. Vs. Hardev Singh and Anr.) is dismissed and the impugned order dated 08.03.2006 under appeal passed by the District Forum is affirmed and upheld.No order as to costs.
26. The respondents no.1 & 2-Sangha Eye Hospital & Dr. S.S. Sangha in F.A. No.1096 of 2006 had deposited an amount of Rs.25,000/- and with this Commission at the time of filing of the said appeal on 25.08.2006. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant/complainant-Hardev Singh (respondent no.1 in F.A. No.1096 of 2006) by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the respondents no.1&2.
27. Remaining amount, as per the order of the District Forum, shall be paid by respondents no.1,2 & 5 to the appellant/complainant-Hardev Singh within two months from the receipt of copy of the order.
28. Arguments in both the appeals were heard on 08.08.2011 and the order was reserved. Now the order be communicated to the parties.
29. The appeals could no be decided within the stipulated timeframe due to heavy pendency of Court cases.
First Appeal No.532 of 2006 11
29. Copy of this order be placed in First Appeal No.1096 of 2006 (Sangha Eye Hospital and Anr. Vs. Hardev Singh and Anr.) (Inderjit Kaushik) Presiding Member (Amarpreet Sharma) Member August 19, 2011.
(Gurmeet S)