State Consumer Disputes Redressal Commission
Sh. Amar Nath. vs Dr. Yachana Gupta. & Anr. on 2 April, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 108/2017
Date of Presentation: 01.03.2017
Order Reserved on : 14.03.2018
Date of Order : 02.04.2018
......
Amar Nath s/o late Shri Kashmir Chand r/o Village Katohar
Kalan Tehsil Amb District Una H.P.
...... Appellant/Complainant
Versus
1. Dr. Yachana Gupta (Eye Specialist) Rotary Eye Hospital
Dhusara Tehsil Amb District Una H.P.
2. Director Rotary Eye Hospital Dhusara Tehsil Amb
District Una H.P.
......Respondent s/Opposite parties.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Tek Chand Advocate vice
Mr. Sanjeev Kumar Suri Advocate.
For Respondents : Mr. Anil Thakur Advocate vice
Mr. Kuldeep Guleria Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 16.12.2016 passed by Learned District Forum in consumer complaint No.70/2014 title Amar Nath Versus Dr. Yachana Gupta & Anr. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) Brief facts of consumer complaint:
2. Complainant Amar Nath filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is ex-serviceman. It is pleaded that complainant sustained cataract problem in his right eye and on dated 21.06.2012 complainant visited ECHS Una. It is further pleaded that opposite party No.1 conducted operation of right eye of complainant and received extra payment of Rs.2200/- (Two thousand two hundred) for better lens. It is further pleaded that complainant also used medicines as prescribed by opposite party No.1. It is further pleaded that later on right eye of complainant started creating problem and eyesight of complainant became very week. It is further pleaded that complainant approached opposite party No.1 and opposite party No.1 advised complainant to use medicines as per instructions of opposite party No.1. It is further pleaded that no improvement was found. It is further pleaded that thereafter complainant again approached opposite party No.1 on dated 24.08.2012 and opposite party No.1 referred complainant to PGI Chandigarh or Rotary Eye Hospital Maranda District Kangra H.P. It is further pleaded that at REH Maranda complainant was informed that during the previous operation conducted by opposite party No.1 retina of right eye of complainant was damaged. It is further pleaded that opposite party No.1 was served with legal notice. It is further pleaded that opposite parties committed deficiency in 2 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) service. Complainant sought relief of payment of Rs.1000000/- (Ten lac) as damages caused to the complainant due to deficient service of opposite parties. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has no cause of action to file the consumer complaint. It is pleaded that complaint involves complicated questions of facts and law and complainant be relegated to civil court. It is further pleaded that complainant is estopped by his own act and conduct to file present consumer complaint. It is further pleaded that complainant is not consumer because opposite party No.1 is charitable hospital. It is further pleaded that no negligence was committed by opposite parties. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
5. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
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Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017)
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit by way of evidence. There is recital in the affidavit that deponent is ex-serviceman and retired as Honorary Captain from Indian Army. There is further recital in the affidavit that complainant sustained cataract problem in right eye on dated 21.06.2012 and visited ECHS Una and medical officer at ECHS Una thoroughly checked the deponent and referred the deponent to Rotary Eye Hospital Dhusara. There is further recital in the affidavit that thereafter deponent visited REH Dhusara and deponent was examined.
There is further recital in the affidavit that opposite party No.1 advised deponent for operation of right eye. There is further recital in the affidavit that opposite party No.1 admitted deponent on dated 10.07.2013 and performed operation of right eye of deponent. There is further recital in the affidavit that deponent paid extra amount of Rs.2200/- (Two thousand two hundred) for better lens. There is further recital in the affidavit that thereafter deponent was discharged. There is further recital in the affidavit that right eye of deponent started creating 4 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) problem and eyesight of deponent also became very week. There is further recital in the affidavit that thereafter complainant visited REH Dhusara Tehsil Amb District Una. There is further recital in the affidavit that opposite party No.1 advised deponent to use medicines as prescribed by opposite party No.1. There is further recital in the affidavit that without obtaining any test opposite party No. 1 told the deponent that there was whole in the right eye of the deponent and referred the deponent to PGI Chandigarh or Rotary Eye Hospital Maranda District Kangra H.P. There is further recital in the affidavit that Doctor of REH Maranda told the deponent that during previous operation conducted by opposite party No.1 retina of right eye of deponent was damaged and right eye of deponent could not be cured. There is further recital in the affidavit that legal notice was also served upon opposite party No.1. State Commission has perused all annexures filed by complainant.
9. Opposite parties filed affidavit of Doctor Yachana Gupta Eye Specialist Rotary Eye Hospital Dhusara in evidence. There is recital in the affidavit that deponent is posted as Eye Specialist in Rotary Eye Hospital Dhusara Tehsil Amb District Una. There is further recital in the affidavit that allegations mentioned in the complaint are wrong, false, incorrect and malafide. There is further recital in the affidavit that complainant visited Rotary Eye Hospital Dhusara on dated 25.06.2012 and he was diagnosed cataract in both eyes. There 5 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) is further recital in the affidavit that complainant was highly myopic patient. There is further recital in the affidavit that complainant was advised to undergo cataract surgery. There is further recital in the affidavit that complainant was operated. There is further recital in the affidavit that after surgery eye of complainant was found absolutely fine and in normal vision. There is further recital in the affidavit that when complainant came to the hospital on dated 24.08.2012 after six weeks of surgery complainant was diagnosed of retinal detachment which is altogether different disease and was not connected with earlier surgery. There is further recital in the affidavit that thereafter on dated 27.08.2012 complainant visited Rotary Eye Hospital Maranda which is also an establishment of Rotary Eye Foundation and complainant was advised retinal detachment surgery. There is further recital in the affidavit that deponent is Chief Ophthalmic Surgeon at Rotary Eye Hospital Dhusara and her educational qualification is MBBS MS (EYE). There is further recital in the affidavit that deponent has adopted all standards and did not commit any negligence. There is further recital in the affidavit that complainant did not file any expert opinion of medical officer in order to prove medical negligence. There is further recital in the affidavit that deponent did not operate complainant qua his left eye. There is further recital in the affidavit that opposite party No.1 only placed lens and cataract was removed by opposite party No.1. There is further recital in 6 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) the affidavit that complainant was operated for retinal detachment subsequently at Rotary Eye Hospital Maranda.
10. Submission of the learned advocate appearing on behalf of complainant that opposite party No.1 without proper diagnose operated right eye of complainant in negligent manner and after operation of right eye hole developed in the right eye of complainant and on this ground appeal be allowed is decided accordingly. It is proved on record that cataract surgery of right eye of complainant was conducted by opposite party No.1 at REH Dhusara Tehsil Amb District Una H.P. It is also proved on record that thereafter complainant was operated for retinal detachment at Rotary Eye Hospital Maranda subsequently. Complainant has pleaded that Doctor posted in REH Maranda revealed that retina of right eye of complainant was damaged in previous operation conducted by opposite party No. 1 at REH Dhusara. Complainant did not file affidavit of Medical Officer posted at REH Maranda in order to prove that in previous operation conducted by opposite party No.1 right eye of complainant was damaged.
11. State Commission has carefully perused the legal notice issued by complainant to opposite party No.1. In legal notice complainant has specifically mentioned that opposite party No.1 conducted cataract surgery of left eye but in fact no cataract surgery of left eye of complainant was conducted by opposite party No.1. Factually opposite party No.1 conducted 7 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) only cataract surgery of right eye of complainant at REH Dhusara Tehsil Amb District Una H.P.
12. Even complainant did not file any application before learned District Forum for obtaining opinion of medical expert. Medical negligence has been refuted by opposite party No.1 in version and by way of affidavit filed in evidence. Complainant is not medical expert. No reason assigned by complainant as to why complainant did not file any application before learned District Forum for obtaining opinion of medical expert. State Commission is of the opinion that onus was upon complainant to prove that opposite party No.1 had committed medical negligence. It is well settled law that medical negligence could be proved only by way of evidence of medical expert. See 2017(4) CPR 822 NC Medical Superintendent Baba Saheb Ambedkar Memorial Hospital & Anr. Versus Manjeri Sinha. See 2017 (2) CPR 272 NC S. Saravanan Versus M/s. Rasi Clinic & Ors. Hence plea of complainant that opposite party No.1 has committed medical negligence is defeated on the concept of ipse- dixit (An assertion made without proof).
13. Submission of learned advocate appearing on behalf of opposite party that complicated facts are involved in the present consumer complaint and complainant be relegated to civil court for adjudication of dispute is decided accordingly. State Commission is of the opinion that proceedings under Consumer Protection Act 1986 are summary proceedings. In the 8 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) present case complicated questions of facts are involved relating to operation of right eye of complainant which require elaborate inquiry. State Commission is of the opinion that in view of complicated facts it is expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of his dispute. See 1997 (2) CPJ 95 NC Supreme Chemical Industries & Ors. Versus Rajasthan State Industrial Development and Investment Corporation Limited & Ors. 1996(3) CPJ 141 NC Mahendra Kumar Hira Lal Shah Versus New India Assurance Co. Ltd. See 1996 (2) CPC 460 NC B. Jainnul Abdeen & Anr. Versus Twaik East International & Anr. See 2003 (1) CPC 37 NC M/s. Anvil Capital Management Pvt. Ltd. Versus M/s. Global Trust Bank Limited. Point No.1 is decided accordingly.
Point No.2: Final Order
14. In view of findings upon point No.1 above appeal is dismissed. Complainant is relegated to civil court for adjudication of his dispute because complicated questions of facts relating to medical negligence are involved in the present consumer complaint which could not be disposed of in summary manner under Consumer Protection Act 1986. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of 9 Amar Nath Versus Dr. Yachana Gupta & Anr. (F.A. No.108/2017) order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 02.04.2018.
*GUPTA* 10