State Consumer Disputes Redressal Commission
Mr.Navnath Dnyaneshwar Survase vs Dr.Shri Deepak Jindatta Achlare & Ors. on 19 May, 2009
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 992 OF 2007 Date of filing : 06/08/2007 IN CONSUMER COMPLAINT NO. 02 OF 2004 Date of order : 19/05/2009 DISTRICT CONSUMER FORUM : SOLAPUR Mr.Navnath Dnyaneshwar Survase R/o. 2007, Umadegalli, Pandharpur, Tal. Pandharpur, Dist. Solapur. Appellant/org. complainant V/s. 1. Dr.Shri Deepak Jindatta Achlare R/o. Dr.Achlare Eye Hospital Near New Karad Naka, Pandharpur. 2. Shri Dr.Pravin Ramchandra Gorane, Poona Lessor Centre, 33/15 B, Reziant Chambers, 2nd floor, Opp. Garware College, Karve Road, Pune 411 004. 3. Branch Manager New India Assurance Co. Ltd. Pandharpur, Golwalkar Bldg., Pandharpur, Dist. Solapur. Respondents/org. O.Ps. Corum : Shri S.R. Khanzode, Honble Presiding Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.Dilip Bodake, Advocate for the appellant.
Mr.G.H. Kulkarni, Advocate for the respondent Nos.1&2 None for respondent No.3.
- : ORDER :-
Per Shri S.R. Khanzode, Honble Presiding Judicial Member This appeal arises out of order/award dated 07/07/2007 passed in consumer complaint No.02/2004 Mr.Navnath Dnyaneshwar Survase, minor through his father Dnyaneshwar Baburao Survase V/s. Dr.Deepak J. Achlare & Ors. passed by District Consumer Forum Solapur (in short Forum below).
Complainant Mr.Navnath Dnyaneshwar Survase was treated for Traumatic cataract and operated for cataract extraction at Pandharpur on 13/06/2002 by respondent/O.P.No.1-Dr.Deepak Achlare. He was further referred to respondent/O.P.No.2-Dr.Pravin Gorane for anterior vitrectomy with lens implantation and further operated upon accordingly on 02/07/2002. Vision was restored. However, on 17/10/2002 complainant reported loss of vision, on examination, retinal detachment was noticed and was advised for treatment accordingly. It is the case of the complainant-Mr.Navnath Survase that respondent/O.P.No.1 though not qualified operated upon him for cataract extraction without referring to Vitreo-Retinal Surgeon. Other allegation is that respondent/O.P.No.2 though aware did not inform about detachment of retina, which was caused due to bad performance or negligence of respondent/O.P.No.1 while operating at Pandharpur. It is also alleged that respondent/O.P.No.2 instead of taking post operative care at his Hospital referred the complainant to O.P.No.1 for the same. Respondent/O.P.No.3-Insurance Company, who had insurance policy to indemnify respondent No.1, was subsequently added and impleaded as O.P. by the complainant. Consumer complaint was filed on 02/01/2004 and which stood dismissed by reasoned order per impugned award. Feeling aggrieved thereby this appeal is preferred by org. complainant.
We heard Mr.Dilip Bodake, Advocate for the appellant/org. complainant and Mr.G.H. Kulkarni, Advocate for the respondent Nos.1&2/doctors. None is present for respondent No.3/Insurance Company.
We have carefully gone through the voluminous record and submissions made by both the parties.
With the case history of cricket ball hitting the eye, after some years complainant had developed problem of Traumatic cataract. Considering the emergency and after giving full information and explaining pros and cons of the treatment to the complainant and his father, complainant was operated for extraction of cataract at the hospital of respondent/O.P.No.1 at Pandharpur on 13/06/2002. Respondent/O.P.No.1 is Consultant Eye Surgeon with requisite professional qualification for this kind of treatment. This fact is very much clear not only from the contents of a letter or reply to the notice given by respondent/O.P.No.2 to the complainant viz. reply letter dated 12/01/2003 (appeal paper book page-55 to 64). Further confirmation comes from another independent agency none other than the Civil Surgeon, Solapur. To a query made by the Police Inspector consequent to the criminal complaint filed by the complainant with Police, said authority reconfirmed the fact that respondent/O.P.No.1 has all requisite qualifications for the treatment given by him to the complainant. In fact, Civil Surgeon has also confirmed that there was no medical negligence caused which may amounts to deficiency in service within meaning of Consumer Protection Act, 1986 (Act for brevity), at the hands of respondent/O.P.No.1. (Said opinion is on record at appeal paper book page-179). Record further shows that at respective time before giving any treatment at the respective places by respondent No.1 and respondent No.2, they have given all the necessary information to the complainant and his father.
All the necessary case papers are also on record. Complainants father tried to submit that at the Hospital of respondent/O.P.No.2 his signatures were taken in hurry on the consent paper. There is no evidence on record to substantiate the same. On the contrary, the consent paper which is in Marathi i.e. the language which is understood by the complainant and his father (page-154 of appeal paper book), respondent/O.P.No.2 also specifically brought it into their notice that in such type of treatment, there is possibility of detachment of retina. This particular warning further shows that before any treatment given at the Hospital of respondent/O.P.No.2 at Pune, there was no detachment of retina occurred or otherwise, such warning would not have been given and the fact of detachment of retina would have mentioned in the case papers. This repudiate the contention of the complainant that respondent/O.P.No.2 though noticed did not inform him about detachment of retina and respondent/O.P.No.2 did so to camouflage the mistake and negligence of respondent/O.P.No.1. It is also rightly pointed out that had it been a fact that detachment of retina occurred due to negligence of O.P.No.2 after the treatment which the complainant had received at the Hospital of O.P.No.2 at Pune, it was not possible to get vision. Complainant had restored his vision after treatment at the Hospital of respondent/O.P.No.2.
Detachment of retina occurred subsequently for which he was suitably advised for the treatment. But, it is revealed from the record that it is the complainant, who failed to follow advise given for further treatment and which ultimately, unfortunately, resulted in loss of vision by him.
Referring to Bolam Test, no medical negligence amounting to deficiency in service within meaning of the Act is established in the instant case. Bolam Test is approved by the Apex Court in the matter of Jacob Mathew V/s. State of Punjab and Anr., III (2005) CCR 9 (SC) and also in the latest decision in the matter of Martin F. DSouza V/s. Mhohd. Ishfaq, II (2009) SLT 20. Learned Forum below has exhaustively dealt with the relevant issues and properly held that no deficiency in service due to medical negligence on the part of respondents/O.P.Nos.1&2 is established by the complainant and dismissed the complaint. We find ourselves in agreement with the said reasoning and findings.
As far as respondent/O.P.No.3-Insurance Company is concerned, it entered into an insurance contract with respondent/O.P.No.1 to indemnify him in case medical negligence liability fastened upon him. Such contingency does not arise in the instant case and therefore, complaint against Insurance Company also rightly dismissed by Forum below.
For the reasons stated above, we find appeal is devoid of any substance and pass the following order :-
-: ORDER :-
1.
Appeal stands dismissed.
2. However, in the given circumstances, there is no order as to costs.
3. Copies of the order be furnished to the parties.
(S. P. Lale) (S.R. Khanzode) Member Presiding Judicial Member dd.