State Consumer Disputes Redressal Commission
Dheeraj Kannoje vs Dr.Ambris Darak & Anr. on 11 August, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/15/398
Instituted on : 18.08.2015
Dheeraj Kannoje, Aged about 34 years,
S/o Prakash Kannoje,
R/o : Kila Para, College Road,
Village/Post and District Rajnandgaon (Chhattisgarh) ... Appellant
Vs.
1. Ambarish Darak, Vision Next,
(Personalised Eye Care),
Imperial Medi Solution Private Limited, Narsimha Centre,
Shop No.1206/29, Above H.D.F.C. Bank, Apte Road,
Post and District Pune (Maharashtra) Pin 411004
2. Laser Vision, Through Competent Authority,
Beside S.B.I. Apartment, Bhagat Singh Chowk,
Shankar Nagar, Main Road, Raipur,
Post and District Raipur (C.G.). ... Respondents
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Yashwant Yadav, for the appellant.
Shri R.K. Bhawnani, for the respondent No.1.
None for the respondent No.2.
ORDER
DA TED : 11/08/2016 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 09.06.2015, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth "District Forum") in Complaint Case No.139/2014. By the // 2 // impugned order, the learned District Forum, has dismissed the complaint of the complainant.
2. Briefly stated the facts of the complaint of the complainant are that in the month of July, 2008 the OPs published an advertisement in leading newspapers in which they claimed that after zyoptix laser operation operated and treat person/patient who used to wear power glasses/spectacles will be freed to wear the same forever. When the complainant read the above advertisement, then he contacted the OPs because he was using -1.25 power spectacles for his eye. Thereafter the O.P.No.1 examined the eyes of the complainant on 14.08.2008 and had taken fees to the tune of Rs.1,000/- and provided receipt for the same. After examination of the eyes, the O.P.No.1 informed the complainant that operation of his eyes is required to be conducted for which fees would be Rs.31,000/- and after operation the eye would be alright and there is no requirement to wear spectacles. The complainant believed the version of the O.P.No.1 and got registered him with the O.P.No.1 for conducting laser operation of his eyes and the registration No. is NIY 1707 M 908 dated 14.08.2008. The O.P. No.1fixed the date 11.09.2008 for conducting above operation and accordingly the complainant went to his clinic on 11.09.2008 and deposited Rs.31,000/- and obtained receipt for the same. On that day itself Zyoptix laser operation of eyes of the complainant was conducted by the O.P.No.1. After conducting operation by the O.P.No.1, the complainant followed the instructions given by the O.P.No.1 and had // 3 // also taken prescribed medicines and had taken precaution. On 14.03.2012 all of sudden the complainant suffered pain in his head and eyes, then he was examined by a eye specialist in the local hospital who advised him to wear -0.5 power spectacle again. The complainant contacted O.P. No.1 in his clinic at Pune and informed him regarding his problems, then the O.P.No.1 also advised him to wear -0.5 power spectacle and prescribed some medicines for some days but inspite of taking the medicines, the complainant did not get any relief and the problem was continued. The complainant sent legal notice to the OPs through his advocate on 24.01.2014 through registered post which was received by the O.P.No1 on 03.02.2014 and its reply dated 19.02.2014 was sent the authorized advocate of the O.P.No.1, Shri Parikshit Darak which was received very belatedly on 19.03.2014 whereas the notice sent to the O.P.No.2 was returned back by the Postal Department with an endorsement that "left without any intimation". The O.P. No.1 committed medical negligence and deficiency in service, therefore, the consumer complaint is being filed before the District Forum.
3. The O.P.No.1 filed his written statement and averred that the case of the complainant is not maintainable before the District Forum because the O.P. No.1 has not done any deficiency in service and / or is liable for any negligence as alleged. According to the latest judgment of the Hon'ble Supreme Court in the case of Martin F. D'Souza Vs. Md. Isfaq reported in 2009 (1) CPR 231, the District Forum should not register any // 4 // case against Medical Practitioner and/or Doctor, unless there is any report of recognized Medical Board or any Authorised Expert that prima facie the concern doctor is negligent and/or their any such deficiency in service. Further the Hon'ble Supreme Court has held that, merely not achieving the goals / results should not be treated as medical negligence and/or deficiency in service. The complainant has not filed any report or evidence in this regarding. Therefore, according to the judgment of Hon'ble Supreme Court, the case of the complainant is liable to be dismissed on this ground only. The case of the complainant is not maintainable before the District Forum because it will require detail evidence which is not possible in summary procedure, therefore, the complaint of the complainant is likely to be dismissed. The complaint filed by the complainant is hopelessly time barred as per the complainant's own version the operation was done on 11-09-2008 and the complaint has filed the complaint on 28.03.2014. Therefore, as per provisions of the Consumer Protection Act, 1986 the time for filing the complaint is two years. Therefore, the complaint of the complainant is likely to be dismissed on this ground. With a malafide intention and illegal motive to extract the money the complainant along with O.P.No.2 has caused to file false complaint. The O.P.No.1 has neither issued any paper publication and/or advertisement in any newspaper nor authorised any person to issue such advertisement and/or paper, at any point of time. The O.P. No.1 has never represented / assured verbally or written at any // 5 // point of time to any person including the complainant that, after Zyoptix laser operation operated and treated person/patient who used to wear power glasses / spectacles will be freed to wear the same forever (i.e. freedom from glasses forever). The O.P.No.1 was a visiting Surgeon / Doctor at the clinic namely "Laser Vision Raipur" i.e. O.P.No.2 once / twice in a month and used to visit the said clinic for operations only. The O.P.No.1's professional fees were paid by the owner of the said clinic "Laser Vision Raipur" and the O.P.No.1 has never charged and/or collected any amount/fees /charges from any person including the complainant. All the day to day operations, initial checkups and consultations at said Laser Vision Raipur i.e O.P.No.2 were managed by the owner of the said clinic namely Mr. Amit Harchandani and therefore the said clinic i.e. O.P.No.2 some resident and other consulting doctors used to also visit and performed operations. The complainant has never contacted the O.P.No.1 neither the O.P. No.1 has advised the complainant to undergo any eye laser surgery nor the O.P. No.1 has operated / treated the complainant. The laser eye surgery is a cosmetic eye surgery and post operations many instructions and protocol has to be followed by patient and even after operations the operated patient/s may require to wear low power glasses. If any person/patient post operation did not follow the instruction and/or protocol then also the result of the operation may vary. The O.P. No.1 before performing any operation / surgery discloses all these facts and consequences to each patient and also takes written // 6 // consent of each patient and copies of all case and consent papers are also delivered to the patients. The same practice was followed by the owner of the said clinic i.e. O.P.No.2 and all those case and consent papers / documents are in his/its custody and therefore be directed to produce before the District Forum. On visit of the complainant at the O.P.No.1's clinic at Vision Next, Pune, the O.p.no.1 in good faith tried to attend the grievance/problem of the complainant even though the complainant not his patient. The complainant admitted and represented the O.P.No.1 that the complainant has not gone for regular follow ups and check ups at the said clinic i.e. O.P. No.2. The complainant was having complaint of "Burning of vision and Dryness of both eyes" and after some initial checkups the O.P.No.1 recommended some drops and medicines and asked the complainant to come for next follow up and / or check up after two months, however, the complainant inspite of advice and instructions till date has not turned up for any follow up and / or check up and / or nor tried to contact the O.P. No.1. This attitude and carelessness of the complainant may have resulted to fail to achieve the goal of the said Lasik surgery performed by the complainant from the staff of the said clinic i.e. O.P.No.2. The O.P.No.1 was never a staff member of the O.P.No.2. The O.P.No.1 has been neither found guilty of any medical negligence, malpractice etc. nor renders / rendered any deficiency in service. The O.P.No.1 is a well known and reputed Doctor / Refractive Surgeon in India and recently has been honored with "Gold Medal" at India Level for // 7 // the services and achievements in the Lasik surgery. The O.P. No.1 is practicing since last 10 years in the said field i.e. Laser eye surgery and having many clinic across the India. The O.P.No.1 is not responsible for any medical negligence, malpractice, rendered deficient services, etc. as alleged. The complainant with all intentions and motive to defame and extract money along with the O.P.No.2 has filed this false case against the O.P.No.1 and further the complainant has not stated the true and correct facts before the District Forum i.e. the complainant is not coming with clean hands to seek justice from the District Forum and therefore the complaint of the complainant is likely to be dismissed with heavy cost, in the interest of justice. The complaint of the complainant as per his own version only is time barred and therefore, only on the sole ground the same is liable to be dismissed with heavy cost.
4. None appeared for the O.P. No.2 inspite of service of notice through publication in newspaper, therefore, O.P.No.2 has not filed written statement, affidavit and documents.
5. The complainant has filed documents. Documents are receipt dated 14.08.2008, receipt dated 11.09.2008, Zyoptix Data Sheet of Laser Vision, Post Procedure Prescription, Legal Notice dated 24.01.2014 sent by Shri Yusuf Ahmed Advocate to the OPs, envelope which was returned back, reply dated 19.02.2014 sent by Shri Parikshit P. Darak, Advocate to // 8 // the complainant and Shri Yusuf Ahmad, Advocate in response to legal notice dated 24.01.2014.
6. Learned District Forum, after having considered the material placed before it by the parties, has dismissed the complaint by the impugned order.
7. Shri Yashwant Yadav, learned counsel appearing for the appellant (complainant) has argued that the respondents (OPs) published an advertisement in the leading newspaper in the month of July, 2008 regarding zyoptix laser. On the basis of above advertisement, the appellant (complainant) contacted with the respondent No.1 (O.P.No.1). The respondent No.1 (O.P.No.1) examined the eye of the appellant (complainant) on 14.08.2008 and the appellant (complainant) paid a sum of Rs.1,000/- as fees to the respondent No.1 (O.P.No.1). The respondent No.1 (O.P.No.1) informed the appellant (complainant) that operation of his eyes is required to be conducted and he demanded a sum of Rs.31,000/-. The appellant (complainant) paid a sum of Rs.31,000/- to the respondent No.1 (O.P.No.1). The zyoptix laser operation of eyes of the appellant (complainant) was conducted by the respondent No.1 (O.P.No.1) on 11.09.2008. After conducting operation by the respondent No.1 (O.P.No.1) the appellant (complainant) properly followed the instructions given by the respondent No.1 (O.P.No.1) and had taken medicines, as directed by the respondent No.1 (O.P.No.1). On 14.03.2012, // 9 // all of sudden the appellant (complainant) suffered pain in his head and eye, then he contacted to an eye specialist, who advised him to wear -0.5 power spectacle again. The appellant (complainant) contacted the respondent No.1 (O.P.No.1) in his clinic at Pune and informed him regarding his problems, then the respondent No.1 (O.P.No.1) informed him regarding his problems, then the respondent No.1 (O.P.No.1) advised him to wear -0.5 power spectacle and prescribed some medicines for some days but inspite of taking the medicines, the appellant (complainant) did not get any relief and his problem was remained continued. It appears that the respondent No.1 (O.P.No.1) committed medical negligence and deficiency in service and due to medical negligence on the part of the respondent No.1 (O.P.No.1), the appellant (complainant) suffered problem in his eyes, therefore, the appellant (complainant) is entitled to get compensation from the respondent No.1 (O.P.No.1) as mentioned in the relief clause of the complaint and the impugned order passed by the District Forum, is erroneous and is liable to be set aside.
8. Shri R.K. Bhawnani, learned counsel appearing for the respondent No.1 (O.P.No.1) has supported the impugned order passed by the District Forum and submitted that the complaint of the appellant (complainant) is hopelessly barred by time. The Zyoptix laser operation of the eyes of the appellant (complainant) was conducted by the respondent No.1 (O.P. No.1) on 11.09.2008 whereas the complaint has been filed on 28.03.2014.
// 10 // The appellant (complainant) pleaded on 14.03.2012 all of sudden he suffered pain in his head and eye i.e. after near about 4 years of conducting operation, therefore, it cannot be held that the above problem was occurred to the appellant (complainant) due to operation conducted by the respondent No.1 (O.P.No.1) on 11.09.2008. Therefore, the impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal is liable to be dismissed.
9. Before us none appeared for the respondent No.2 (O.P.No.2) inspite of publication of notice in daily newspaper "Haribhumi" edition dated 24.06.2016.
10. We have heard learned counsel appearing for the appellant (complainant) and respondent No.1 (O.P.No.1) and have also perused the record of the District Forum.
11. In para 4 of the complaint, the appellant (complainant) specifically pleaded that he contacted the respondent No.1 (O.P. No.1) on 14.08.2008 and operation of his eyes was conducted on 11.09.2008. Thereafter he suffered pain in his head and eyes on 14.03.2012 i.e. after near about 3 ½ years, therefore, cause of action had accrued on 11.09.2008 when operation of his eyes was conducted by the respondent No.1 (O.P.No.1), whereas the appellant (complainant) has filed complaint on 28.03.2014, which is hopelessly barred by time. The learned District Forum has rightly held // 11 // that the complaint of the appellant (complainant) is barred by time and has rightly dismissed the complaint.
12. Hence, the appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member 11 /08/2016 11/08/2016 11/08/2016 11/08 /2016