State Consumer Disputes Redressal Commission
Kapil Bajaj vs Ahuja Child Eye Clinic And Ors. on 1 April, 2022
CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution: 10.02.2010
Date of hearing: 10.03.2022
Date of Decision: 01.04.2022
COMPLAINT CASE NO.-37/2010
IN THE MATTER OF
SH. KAPIL BAJAJ,
S/o LATE SH. BALWANT RAJ BAJAJ,
R/o- H. NO. 45, KARTAR SHAH NAGAR,
BEHIND BAL VIKAS SCHOOL,
MODEL TOWN, PANIPAT,
HARYANA.
(Through: TARUN SHARMA & VARUN GUPTA, ADVOCATE)
...Complainant
VERSUS
1. AHUJA CHILD & EYE CLINIC
2. DR. SANJAY AHUJA
3. DR. APARNA AHUJA
ALL AT:
36, PARMANAND COLONY,
DELHI-110009
(Through: S. K. JHA, ADVOCATE)
...Opposite Party No. 1, 2 and 3
DISMISSED PAGE 1 OF 21
CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
4. KHANNA EYE CENTER,
THROUGH DR. SANJAY KHANNA,
A-2/2, MODEL TOWN-I
NEW DELHI-110009
(Through: PRADEEP KUMAR, ADVOCATE)
...Opposite Party No. 4
5. UNITED INDIA INSURANCE COMPANY LIMITED
18, BARAKHAMBA ROAD,
KANCHANJUNGA BUILDING,
CONNAUGHT PLACE,
NEW DELHI
(Through: JYOTI DIVYA, ADVOCATE)
...Opposite Party No. 5
6. NATIONAL INSURANCE COMPANY
CENTRAL MARKET,
PUNJABI BAGH,
NEW DELHI-110026
(Through: None)
...Opposite Party No. 6
DISMISSED PAGE 2 OF 21
CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE SH. RAJAN SHARMA, MEMBER (JUDICIAL)
Present: None for the Parties.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
JUDGMENT
1. Brief facts of the case as per the pleadings of the parties are that the Complainant herein experienced some problem in his vision in February, 2009, and consulted Bajaj Eye Centre, Panipat (hereinafter referred to as the "Bajaj Clinic"), where, the Complainant was diagnosed with suffering from "BE KERATOCONUS" (hereinafter referred to as the "disease"). The National Health Portal's website describes the disease in the following words:
"Keratoconus is a non-inflammatory, bilateral (but usually asymmetrical) disease of the cornea which results in progressive corneal steepening. It is characterised by para- central corneal thinning and ectasia so that the cornea takes the shape of a cone. Visual loss occurs primarily from myopia and irregular astigmatism and secondarily from corneal scarring."
2. The doctor at the Bajaj Clinic referred the Complainant to ALL INDIA INSTITUTE OF MEDICAL SCIENCES, Delhi (hereinafter referred to as "AIIMS, Delhi") for proper treatment. The Complainant visited AIIMS, Delhi, in OPD, where it transpired that the Complainant was DISMISSED PAGE 3 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
suffering from the disease in both his eyes. The doctors recommended the Complainant to undergo treatment through a technique known as "Collagen Cross-Linking" using "Riboflavin" and UV (365 mm) Exposure shortly called as C3R (hereinafter referred to as "the technique"). The website of the National Centre for Biotechnology Information provides the requisite information of the aforesaid technique in the following words:
"Corneal collagen cross-linking (CXL) with riboflavin and ultraviolet-A (UVA) is a new technique of corneal tissue strengthening by using riboflavin as a photosensitizer and UVA to increase the formation of intra and interfibrillar covalent bonds by photosensitized oxidation.
xxxx xxxx xxxx xxxx Corneal CXL mediated by riboflavin and UVA appears to be a safe and efficacious procedure in halting the progression of keratoconus and iatrogenic ectasia. CXL reduces the corneal curvature, spherical equivalent refraction and refractive cylinder in eyes with corneal instability and progressive irregular astigmatism due to keratoconus and ectasia. "
3. The Complainant was operated at AIIMS, Delhi on the RIGHT EYE through the technique under the supervision of Professor Anita Panda's unit on 19.05.2009.
4. Allegedly, the doctors at AIIMS informed the Complainant that the technique is a costly one, which burdens the government, despite it being without charges to the common citizen and that there were a lot of DISMISSED PAGE 4 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
people in the wait-list. On these grounds, the Complainant was requested to come for the treatment of the LEFT EYE in the later part of the year.
5. The Complainant then decided to get the treatment done from a private institution and approached the Opposite Party No. 1, whereby, consultation was undertaken from Opposite Party No. 2 & 3. The Opposite Parties were explained about the history of the medical treatment already undergone at AIIMS, Delhi. The Complainant was also assured that the Opposite Parties were having the necessary equipment and the expertise to operate upon him.
6. The Complainant was asked to deposit certain amount as advance for the treatment. Thereafter, the Complainant was called at the Khanna Eye Centre i.e. Opposite Party No. 4, where the treatment for the LEFT EYE actually took place on 22.07.2009. Thereafter, the Complainant was advised to follow up on 25.07.2009.
7. On 25.07.2009, when the Complainant went for the follow up, he informed the Opposite party No. 2 & 3 about the continuous pain in the Left Eye, which was operated upon, and also informed them that he was feeling blinded in the said eye. The Opposite Party No. 2 & 3 applied certain bandages on the left eye, without examining it in detail.
8. Even after the follow-up visit, the Complainant was still under discomfort in his left eye and approached the Bajaj Clinic on 27.07.2009, where the doctor, upon check-up, informed the Complainant that his eye is infected and immediately referred the Complainant to visit AIIMS, Delhi.
9. At AIIMS, Delhi, the Complainant was diagnosed with infection caused due to the C3R procedure and was admitted on 28.07.2009. The DISMISSED PAGE 5 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
Complainant remained admitted from 28.07.2009 till 07.08.2009, since the eye of the Complainant was severely infected.
10. The Complainant also approached Professor Dr. Madan Mohan, at his Eye Clinic namely M. M. Eyetech, who advised the Complainant certain antibiotics. The Complainant was also informed that the only way to save the eye is through Cornea Transplant.
11. The Complainant in his complaint has alleged that a. the Opposite Party No. 2 & 3 despite being aware of the infection on 25.07.2009, did not give the proper treatment and had sent the Complainant back to his home;
b. the Complainant is still undergoing treatment and has to visit AIIMS, Delhi, twice a week due to the negligence of the Opposite Party No. 2 & 3;
c. that the Opposite Party No. 4, where the Complainant was treated upon by the Opposite Party No. 2 & 3, was not having the proper equipment for operating upon the Complainant; d. that due to the Complainant being occupied in getting the proper remedy for his left eye, which has been negligently operated upon by the Opposite Party No. 2 & 3, the Complainant could not take proper care of his son namely Arnav, who was aged only 4 years and passed away due to swine flu, since the Complainant could not give proper attention to him which was actually required.
12. On the aforesaid grounds, alleging utter Medical Negligence on the part of the Opposite Parties, the Complainant approached this Commission.
13. On the second date of hearing i.e. 08.07.2010, the case was referred for Medical Opinion to Guru Nanak Eye Centre, Government of NCT of Delhi. The Medical Board has given its opinion dated 18.08.2010, DISMISSED PAGE 6 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
relying upon the facts and circumstances of the case, which shall be dealt with at the appropriate stage. However, it is pertinent to note that it was only after the Medical Opinion was perused, that the notice was issued to the Opposite Party No. 1, 2, 3 and 4, for filing the Written Statement/Reply, vide order dated 07.03.2011.
14. In the Written Statement/Reply filed on behalf of Opposite Party No. 1, 2 and 3, a preliminary objection has been raised that the Opposite Party No. 2 i.e. Dr. Aparna Ahuja, had not treated the Complainant and had nothing to do with the present case, hence, she should be deleted from the array of parties.
15. On merits, it has been contended on behalf of Opposite Party No. 1 and 2 that a. the Opposite Party No. 2 had diligently examined and operated the Complainant as per the standard norms and procedure, using reasonable degree of skills;
b. the standard practice prescribed all over the world was administered to the Complainant;
c. the Opposite Party No. 2 is a qualified and reputed doctor, having qualifications as MBBS, MD, DNB (Ophthalmology) from AIIMS, Delhi;
d. the Complainant was informed that the treatment shall be done at Khanna Eye Centre i.e. Opposite Party No. 4 since the facility was not available with the Opposite Party No.1 clinic; e. on 22.07.2009, when the Complainant was operated upon, the treatment was successful and post-operative period uneventful, after which, he was discharged with the advice to follow up on DISMISSED PAGE 7 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
23.07.2009, however, the Complainant only reported back on 25.07.2009;
f. on 25.07.2009 there was no sign of infection and the Complainant only had a "Small Epithelial Defect (surface defect)" which erupted during the procedure, after which, the eye was temporarily patched and the Complainant was advised to again come for follow up on 26.07.2009, however, since the Complainant expressed his inability to come on the succeeding day, he was called after two days and was also prescribed Acular- LS drops;
g. the Complainant was expressly advised that in case of any pain or discomfort in the eye, he should immediately contact the Opposite Party No. 2, however, the Complainant never came for further check-up after 25.07.2009 and it is only through the copy of the present complaint case, has the Opposite Party No. 2 come to know that the Complainant had to visit other doctors after 25.07.2009.
16. Pressing upon the Aforesaid submissions, the Opposite party No. 1 & 2 have pleaded that the facts are clear that there exists no negligence on the part of the operating doctor i.e. Opposite Party No. 2 and if there is any, it is clearly attributable to the Complainant himself, due to which, the present complaint should be dismissed with cost.
17. During the pendency of the case, after the filing of Written Statement/Reply by the Opposite Party no. 1, 2, and 3, and before the filing of the Written Statement of Opposite Party No. 4, two applications were filed. The first one being filed on behalf of the Opposite Party No. 2, and 3, seeking impleadment of United India Insurance Company DISMISSED PAGE 8 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
as Opposite Party No. 5, since the Opposite Party No. 2, and 3 were insured with it. Another application was moved on behalf of Opposite Party No. 4, for impleadment of National Insurance Company, since the Opposite Party No. 4 was insured with it.
18. The aforesaid two applications were allowed vide order dated 10.07.2012 and notice was issued to United India Insurance Company as well as National Insurance Company.
19. Thereafter, a separate Written Statement/Reply was filed on behalf of Opposite Party No. 4 i.e. Khanna Eye Centre, the only allegation against whom is that it was not equipped with the proper equipment and facilities required to operate upon the Complainant. In order to controvert the said contention, it has been averred in the Written Statement/Reply that the Opposite Party No. 4 is equipped with Corneal Crosskicking System Model: CL-UVR since the last 4 years and a certificate to that effect has been issued by Appasamay Associates dated 25.08.2011, stating that the said equipment is in proper working condition. On this ground, since the contention against the Opposite Party No. 4 was limited to this extent only, it has sought dismissal of the Complaint with exemplary cost.
20. Both the newly added Opposite Parties i.e. no. 5 and 6 were duly served.
The Opposite Party no. 5 had filed its Written Statement/Reply to the Complaint, which was taken on record vide order dated 10.10.2014. However, the Opposite Party No. 6 failed to appear and was proceeded ex-parte vide order dated 10.04.2015.
21. The Complainant has filed rejoinder to the Written Statements filed on behalf of Opposite Party No. 1, 2, 3, 4 and 5 and has even filed his DISMISSED PAGE 9 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
Evidence by Way of Affidavit. Opposite Parties No. 1, 2, 3 and 4 have also field their Evidence by way of Affidavit.
22. However, despite multiple opportunities the Opposite Party No. 5 failed to file Evidence by way of Affidavit and was finally proceeded ex-parte vide order dated 20.07.2016.
23. The case was ripe for final arguments on 16.05.2017, however, was being adjourned on one or the other ground raised by the parties. The case was finally taken up for arguments on 10.03.2022 and was reserved for judgment.
24. We have heard the Counsel for the parties and perused through the material on record including the Written Arguments filed on behalf of the parties.
25. Before delving into the merits of the case, we deem it appropriate to refer to the law on the cause. This Commission, has, in detail discussed the scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Ram Manohar Lohia Hospital & Anr. decided on 31.01.2022, wherein one of us (Justice Sangita Dhingra Sehgal, President) was a member. The relevant portion has been reproduced as below:
"9.......The Hon'ble Apex Court, after taking into consideration its previous decisions on Medical Negligence, has consolidated the law in Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. reported at (2010) 3 SCC 480, wherein, it has been held as under:
"94. On scrutiny of the leading cases of medical negligence both in our country and other countries specially United Kingdom, some basic principles emerge in dealing with the cases of medical DISMISSED PAGE 10 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view: I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher DISMISSED PAGE 11 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
DISMISSED PAGE 12 OF 21 CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind. "
10. In cases wherein the allegations are levelled against the Medical Professionals, negligence is an essential ingredient for the offence, which is basically the breach of a duty exercised by omission to do something which a reasonable man would do or would abstain from doing. However, negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence and they are entitled to protection so long as they follow the same. "
(emphasis supplied)
26. In the present case also, it will have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances.
DISMISSED PAGE 13 OF 21 CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
27. The Complainant has contended that the Opposite Party No. 2 and 3 were not competent enough to operate upon the Complainant and they were lacking the skills actually required.
28. We may note that the Opposite Party No. 2 has filed on record certain documents including certificate from AIIMS, Delhi, Registration Certificate from Medical Council of India and other supporting documents all of which clearly reflect that the Opposite Party No. 2, who actually operated upon the Complainant is a qualified doctor, who has been given the license by the Medical Council of India.
29. It is pertinent to mention here that the two institutions i.e. Medical Council of India as well AIIMS, Delhi, do not simply issue such certificates and a person, in order to be fully qualified to be a Doctor has to undergo rigorous study and has to pass the qualifying examination.
30. Hence, to simply say that the Opposite Party was not qualified is totally against the facts and such statements actually affect the dignity of the Doctors who spend a huge amount of time in order to study the specific field, in order to better serve the people. It is pertinent to mention that the statement is made by the Complainant without bringing any evidence on record, whether documentary or oral. Given the circumstances, the contention of the Complainant does not sustain.
31. The Complainant has also alleged that the Khanna Eye Clinic i.e. Opposite Party No. 4, where the Complainant was operated upon was not equipped with the proper facility/equipment to treat the Complainant. In furtherance of this submission, the Complainant has contended that he did some inquiry about the equipment with the Opposite Party No. 4, only after which, he got to know that the Opposite Party No. 2 actually DISMISSED PAGE 14 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
conducted a human experiment, since, the Opposite Party No. 4 was not having the actual equipment required but some other technology.
32. The Opposite Party No. 4 has brought on record a letter dated 25.08.2011 issued by APPASAMY ASSOCIATES, who have certified that the Opposite Party No. 4 was using the equipment by the name "Corneal Crosslinking System, Model: CL-UVR" for the last four years. Given the letter was issued in the year 2011, the facts reflect that the Opposite Party No. 4 was having the equipment since the year 2007 i.e. 2 years before the Complainant was treated upon (i.e. in the year 2009).
33. The Complainant in his Rejoinder, has failed to deny the authenticity of the aforesaid letter, or cross-examine the concerned officials of "Appasamy Associates" who have issued the letter and has only given an evasive reply to the aforesaid submission of the Opposite Party No. 4.
34. In the given circumstances, it is clear that the Complainant has not been able to establish the fact that the Opposite Party No. 4 was not having the actual equipment/technology to operate upon him, whereas, the Opposite Party No.4 has been able to establish the contrary satisfactorily.
35. The only question left for adjudication is whether the treatment given to the Complainant was proper and acceptable at that point of time and the infection, with which he suffered was due to the negligence of the Opposite Party No. 2.
36. We deem it appropriate to refer to the dicta of the Hon'ble Apex Court, in Harish Kumar Khurana vs. Joginder Singh and Ors. reported at AIR 2021 SC 4690, being the latest pronouncement on the cause, wherein, the Hon'ble Supreme Court, while taking into consideration its previous pronouncements in Jacob Mathew v. State of Punjab and DISMISSED PAGE 15 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
Anr. reported at (2005) 6 SCC 1, and Martin F. D'Souza v. Mohd. Ishfaq reported at (2009) 3 SCC 1, has held as under:
"14. Having noted the decisions relied upon by the learned Counsel for the parties, it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent. To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of res ipsa loquitur could be made applicable and not based on perception."
37. From the aforesaid dicta of the Hon'ble Apex Court, it is clear that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record.
38. In the present case, there is no denial of the fact that the treatment was successful and the post-operative procedures were uneventful. However, the Complainant had developed certain infection, which was diagnosed at the Bajaj Clinic on fourth day of the operation.
39. The official website of Krishna Netralaya (https://www.krishnanetralaya.com/keratoconus-and-c3r), provides some light on the post-operative complications of C3R procedure. Under the head dealing with major risk associated with C3R procedure, it has been stated that 'there may be a rare risk of corneal infection, which can be DISMISSED PAGE 16 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
treated by the use of antibiotic eye drops. In some cases there is a possibility of vision deterioration due to the occurrence of corneal scarring after C3R.'
40. Dr. Jayanand Urkude, Senior Resident, Cornea Cataract Refractive Surgery Services at Dr. R.P. Centre for Ophthalmic Sciences, All India Institute of Medical Sciences, in his Research titled Post-Collagen Cross-linking Infection has also stated that 'Occurrence of microbial keratitis post-CXL in keratoconus patient is a very rare complication with incidence varying from one region to another. In Asian countries, the frequency noted is 0.0017%.'
41. From the aforesaid Medical Literature, it is evident that post-operative infection even though rare is a known complication in keratoconus patient. It is also clear that the said complication can be treated with antibiotic eye drops.
42. Returning to the facts of the present case, it is evident that the Opposite Party No. 2 performed the operation with the proper equipment/technology available at that time. It is also clear that on examination of the Complainant post-operation on 25.07.2009, when the Complainant informed the Opposite Party No. 2 about the pain and discomfort, the Opposite Party No. 2, did actually follow the usual procedure and prescribed Acular-LS drops.
43. Hence, to say that there was any kind of negligence on the part of the Opposite Party No. 2 does not stand in consonance with the facts of the case, majorly on two ground, i.e., firstly, the infection with which the Complainant suffered was a known complication, secondly, despite it being a known complication, the Opposite Party No. 2 prescribed the proper cure for the same.
DISMISSED PAGE 17 OF 21 CC/37/2010 D.O.D: 01.04.2022
KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
44. Our view is further fortified by the Medical Opinion dated 18.08.2010, rendered by the board constituted by the Guru Nanak Eye Centre, wherein it has been opined that "Infective Keratitis after C3R is a known complication. After infective keratitis it seems the patient never went to Dr. Ahuja (the operating eye surgeon) and was treated at other centre. The committee does not think there is any negligence on part of Dr. Sanjay Ahuja in this case."
45. The Complainant has not refuted the aforesaid medical opinion rendered by the Medical Board of Guru Nanak Eye Centre.
46. Moreover, the Opposite Party No. 2 has brought on record Affidavit of two expert witnesses namely Dr. Rishi Mohan, working at M.M. Eyetech Institute as Senior Consultant & Director (as on 24.05.2016) and also Dr. Sandeep Malhotra, working at Mayur Eye Care as Senior Consultant (as on 24.05.2016), who have deposed in favour of the Opposite Party No. 2 i.e. the operating doctor, stating that the patient was diligently treated upon by the Opposite Party No. 2.
47. It is pertinent to mention here that the Complainant has not made the efforts to cross-examine the aforesaid two Medical Experts which may have shaken the veracity of their deposition. The Complainant has even failed to examine any Expert Witness in support of his case, despite being aware from the very inception of the case that the Medical Board has also ruled against his case.
48. It is clear that there exists no evidence which would substantiate the claim of the Complainant that the treatment given to him by the Opposite Party No. 2 was not acceptable or was not used generally at the time when he was operated upon. The Complainant has even failed to establish that there was lack of due care and caution on the part of the DISMISSED PAGE 18 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
Opposite Party No.2 either by oral or by documentary evidence. Per contra, the Opposite Party has been diligent enough to prove their bonafide and also the fact that there was no negligence on the part of either of the Opposite Party.
49. Consequently, we are of the view that there exists no Negligence on part of the Opposite Parties, hence, the Complaint stands dismissed, with no order as to costs. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
50. Before parting with the judgment, we would like to comment upon the necessity of proper drafting of pleadings. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting pleadings before this commission and especially in cases pertaining to Medical Negligence, is becoming the rule and a well-drafted pleading, an exception.
51. An ill-drafted pleading is an offspring of the union of carelessness with imprecise thinking, leading to inclusion of irrelevant material and exclusion of the facts which would have actually established the case of the respective party. Even though we refrain from making such comments, however, the errors that have arisen in the present case are worth highlighting.
52. The drafting of pleadings is a task which requires utmost dedication and should be done with due diligence, since it is through the pleadings itself that a party can fully express its case or its defence, as the case may be, before the Commission. Perfectly drafted pleading is a way forward in expeditious disposal of the case and should not be done in a casual manner, without reference to the documents being placed.
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KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
53. Utmost attentiveness should be shown to the language of the sentences, which does not mean that there might not be any grammatical or other error(s), however, despite the error(s), the Commission should be able to make out the actual intent of what the party is actually trying to convey.
54. The commission is conscious of the fact that the Consumer Protection Act, 1986 and the new act of 2019, is a welfare legislation, hence, no rigid form has been prescribed as to how a document/pleading is to be drafted. Furthermore, since no human is perfect, there ought to be certain minor errors while drafting, however, the wordings and sentence formation should be so accurate that no scope is left for the other party to exploit it.
55. Here we deem it appropriate to refer to the Rejoinder filed by the Complainant to the Written Statement of Opposite Party No. 1, 2, and 3. In the first para of the Rejoinder, the Complainant was dealing with the averment of the Opposite Parties that Opposite Party No. 3 has nothing to do with the present case. While the Complainant should have actually refuted the said submission, however, due to improper drafting, he has actually went on to admit the said submission by stating "it is denied that the complainant was treated by the respondent no.3". It is to be noted that the whole case of the Complainant is that he was treated by both Opposite Party No. 2 & 3 and not just by Opposite Party No. 2.
56. One more error which is also worth mentioning is whereby, the Complainant is trying to explain that the Opposite Party did not pay heed to his requests, however, it has been mentioned in the Rejoinder that "Complainant complained to the opposite parties no. 2 & 3 about DISMISSED PAGE 20 OF 21 CC/37/2010 D.O.D: 01.04.2022 KAPIL BAJAJ VS. AHUJA CHILD & EYE CLINIC & ORS.
persisting pain in the left eye and even to the extent of no vision. But the Complainant paid no heed to the same."
57. These are only some of the illustrations, wherein, it is clear that the only thing missing is diligence and hesitation from proof reading for one last time, due to which, certain typographical errors have crept in. Even though we have considered it as typographical errors, however, they totally change the meaning of the statement being made and make the case against the party raising the same. With this word of caution, we conclude the judgment.
58. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Rules. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
59. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (RAJAN SHARMA) MEMBER (JUDICIAL) Pronounced On:
01.04.2022 DISMISSED PAGE 21 OF 21