State Consumer Disputes Redressal Commission
Dr R D Sharma vs Ashok Kumar Sharma on 3 March, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2009/857 ( Date of Filing : 26 May 2009 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Dr R D Sharma a ...........Appellant(s) Versus 1. Ashok Kumar Sharma a ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 03 Mar 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal No. 857 of 2009 Dr. R. D. Sharma, Eye Specialist, MBBS, MS(Eye), Railway Road , Opposite Punjab National Bank Dadri, Gautam Budh Nagar. ...Appellant. 1- Ashok Kumar Sharma s/o Sri Janakraj, aged 40 years, R/o Village & Post, Parara, Chandigarh Tehsil Zila, Gurudaspur (Punjab), Present address, Dadri Zila, Gautambudh Nagar. 2- National Insurance Company Ltd., Divisional Offic, 141-142, Navyug Market, Zila Ghaziabad. .......Respondents. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Prateek Saxena, Advocate for appellant. Ms. Rehana Khan, Advocate for the respondent no.2. None appeared for respondent no.1. Date : 31.03.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This appeal has been preferred against judgment and order dated 29.04.2009 passed by the District Consumer Commission, Gautam Budh Nagar in complaint case no.95 of 2005.
In brief the facts of the appeal are that, that the respondent/complainant was working on the post of foreman in Lakshmi Agency and in March 2003, some external material entered into his eyes during work. He treated himself from the appellant on 10 March 2003 and the appellant gave medicines to the respondent. When the respondent did not get any relief, he again visited the (2) appellant on 21 March 2003 and again the appellant gave him some medicines and he went away. The respondent/ complainant, when did not get any relief, went to Dr. Uddyan Kumar for treatment and he advised for ultrasound of the eyes. Upon ultrasound, it came to the knowledge that some external material is still in the eyes. After that he went to Kailash Hospital for eye surgery and after Eye surgery, the visibility of the eye was reduced to 95%. The complainant expended Rs.75,000/- on his treatment and he was also released from the service. Due to carelessness of the appellant he suffered a lot of mental agony. He sent a notice to the appellant through his counsel for paying compensation but when no amount has been paid by the appellant, he filed a complaint before the Consumer Forum.
The impugned judgment and order of the Learned District Forum is not based on any fact and is illegal, passed ex-parte without considering the facts of the case. The respondent/complainant came to him thrice after 10.03.2003, i.e. on 13.03.2003, 21.03.2003 and 27.03.2003. It shows that there was improvement in the eyes of the complainant otherwise he should have visited the appellant daily. If there was some problem in the eyes, the patient could not sit idle for so many days. The complainant on 19.04.2003 did the ultrasound of his right eye on the advice of Dr. Uddyan which itself proves that if any foreign body was there in the eye of the complainant, he could not sit idle for 23 days so it is wrong fact to say that the appellant has done any carelessness. The complainant by misuse of the law wants to extort money from the appellant.
(3)There is nothing in the Ultra Sound report that there is some article in the eye. According to the report the foreign body found in the eye of complainant is recent one. No reference slip has been filed by the complainant before the learned Forum related to Dr. Uddyan. Why this ultrasound has been performed? There is no prescription letter or OPD slip which may support the ultrasound. What was the problem for which ultrasound was advised? There is no documentary evidence on record showing any long medical leave taken due to this Eye ailment. There is no evidence or report on record which support the theory of the complainant that the foreign particle in the eye was present from the very beginning. The complainant, after examining the eye, prescribed some medicines and no painkiller has been given. The complainant did not realise that there is need of any x-ray or CT Scan.
The injury which is being put forward by the complainant may be due to any new accident or occurrence and then he went to Dr. Uddyan and did not come to the appellant. The respondent/complainant did work for 15 months even after the operation which supports the fact that there was no problem after that operation. He has left the service on his own will and nobody has compelling to leave the service. The appellant is insured from the National Insurance Company for indemnity. The learned District Forum has held opposite party liable for the loss of salary which is against the principle of natural justice. The impugned judgment is neither reasoned one according to law and is liable to be set aside. Therefore, it is most (4) respectfully prayed that the impugned judgment and order be set aside and allow the appeal.
We have heard ld. Counsel for the appellant Sri Prateek Saxena and ld. Counsel for the respondent no.2 Ms. Rehana Khan. None appeared for the respondent no.1. We have perused all the pleadings, evidence and documents present on record.
First of all we perused the impugned judgment. As per judgment, the respondent/complainant filed the complaint in which it has been said that for the first time, in March 2003 that some foreign particle fell in his eye. He was treated by the appellant but when did not get any relief, he went to Dr. Uddyan. After some pathological examination it was found that the foreign particle is still in his eye. He was advised for operation. The main question is that whether the first doctor or appellant did his work according norms of medical science and according to guidelines of Indian Medical Association. It is clear from the complainant that the complainant went to the opposite party for the treatment of his eye. As per the statement of the appellant/ opposite party, it is stated that on 10 March 2003, the complainant visited the opposite party with the complaint of having redness, irritation and foreign body sensation in his right eye. The appellant conducted in detail complete and microscopic examination under slit-lamp and operating microscope. Some mud particles were present over corn and conjunctiva which were removed under topical anaesthesia. The appellant/opposite party has admitted his written statement that the complainant visited (5) his clinic 3-4 times. Thus it is clear that after first visit to the appellant clinic, the respondent/complainant visited the clinic of appellant 3 to 4 times for the treatment of his eye. If there was nothing or I was perfectly right, there was no occasion to visit Dr. Uddyan. The appellant did not file any documents regarding his prescription and pathological report. No case history of the respondent/complainant has been filed by the appellant.
The appellant has filed the case law of Anil Kumar Gupta Vs. Dhanwantari Tomar Hospital & Ors., I(2019) CPJ 133 (UP) it which it has been held by the Hon'ble State Consumer Commission, UP that where no expert opinion has been filed and no allegation against OP 2 that he was not a skilled doctor, so even if there could be difference in the line of treatment provided by one doctor than other one, it does not make case of doctor who is providing different line of treatment to be negligent unless there is an expert opinion to show that treatment provided by a doctor was totally unwarranted or totally wrong one. So the negligence not proved.
Here in this case the ultrasound report of right orbit dated 19.04.2003 of Mr. Ashok has been filed in which it is written "there is evidence of a hyperechoic area with distal acoustic shadowing suggestive of a foreign body measuring 4.0 x 2.7 mm in size. It is at the level of Aetna, approximately 10.0 mm towards temporal site." It is clear from the averment of the respondent in his written statement that the respondent/complainant visited to his clinic for the first time on 10 March 2003, and after that he (6) visited 3-4 times again. So the ultrasound report dated 19.04.2003 shows that, that the foreign body is still in the right eye of the complainant. If it would have been removed by the appellant, this should not be detected in the subsequent ultrasound report done within a few days after the treatment of appellant. Res ipsa loquitur, the maxim establishes the fact that the appellant has not performed his duty with devotion and sincerity. If there is a foreign particle near Aetna, the way of treatment may not be different for two different doctors. To remove the foreign body from the eye was first priority for both the doctors in which appellant failed to exercise a good office for removal of the foreign body. There is no need of any expert report in this case because the circumstances speak itself.
The learned Forum has said that the opposite party did not follow the right medical treatment and showed his carelessness. The learned Forum calculated the compensation on the principle of Motor Accident Claim and awarded Rs.7,98,000/- as compensation, Rs.20,000/- was medical expenses, and Rs.2500/- as cost of the suit. The complainant paid for a compensation of about Rs.20 lakhs. The learned Forum has awarded compensation of Rs.7,98,000/- on the basis of calculation which should not have been done but as far as this composition is concerned we are of the opinion that it is proper concealed the fact that eye is the most vital part of a man. So after taking into consideration various reports, pleadings and evidence, we are of the opinion that the judgment passed by the learned District Forum needs no interference by this court. Hence (7) the present appeal is liable to be dismissed with cost. If the appellant and insured for the indemnity, he will be indemnified to the extent he is insured.
ORDER The appeal is dismissed with costs. The judgment and order dated 29.04.2009 passed by the District Consumer Forum, Gautam Budh Nagar in complaint case no.95 of 2005 is upheld. The appellant shall be indemnified by the insurance company to the extent for which he is insured.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER