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State Consumer Disputes Redressal Commission

Dr.Radheshyam Roda, vs Smt.Seetabai Dayaram Patil, on 21 December, 2011

                                 1                  F.A.No.:1928/2006




                                        Date of filing :25.09.2006
                                        Date of order:21.12.2011

MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.



FIRST APPEAL NO. :1928 OF 2006
IN COMPLAINT CASE NO.: 151 OF 2004
DISTRICT CONSUMER FORUM : DHULE.


Dr.Radheshyam Roda,
Mayur Colony, Jaihind Colony Road,
Deopur, Dhule.                                ...APPELLANT
                                              (Org.Opponent )

VERSUS


Smt.Seetabai Dayaram Patil,
R/at Post Arni(Varkhedi),
Tq. & Dist.Dhule.                             ...RESPONDENT
                                              (Org.Complainant )



           CORAM :     Mr.D.N.Admane, Hon`ble Presiding Judicial
                       Member.

Mrs.Uma S.Bora, Hon`ble Member.

Mr.K.B.Gawali, Hon`ble Member.

Present : Adv.Shri.S.S.Rathi for appellant , Adv.Shri.Umesh Shete for respondent.

O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Member.

1. Dr.Radheshyam Roda resident of Deopur, Dhule appellant herein/original opponent preferred this appeal against the judgment and order passed by Dist.Forum ,Dhule o 16.8.2006 in complaint case No.151/2004.

2. The facts of the complaint in a nutshell are as under.

Complainant Smt.Seetabai Dayaram Patil resident of Arni, Tq.&Dist.Dhule approached to appellant for surgery of cataract. Appellant is Opthalmogist practicing in Dhule city. On 18.1.2004 complainant first time approached to appellant. After checking and doing all the required test some medicines were prescribed. On 25.03.2004 complainant again approached to appellant, at that time appellant informed her that surgery for cataract is to be performed and lens will be installed so that complainant can get clear vision. For that surgery expenses of 15 to 16,000/- are informed to be expected. Accordingly, complainant deposited Rs.10,000/-. At that time receipt of Rs.4900/- only given and surgery was scheduled on 2.4.2004. On 2.4.2004 again employee of the appellant demanded Rs.10,000/- and for anaesthesia Rs.2000/-. Son of complainant Shri.Suresh Patil paid the said amount. Surgery for cataract was done. But it was found that there was no change in the vision of complainant. There were unbearable pains in the eyes and she was constrained to sit idle as moving here and there was not possible due to defective vision. Therefore she many times approached to appellant but appellant did not give any response. Therefore on 17.8.2004 complainant issued legal notice. The said notice was replied vaguely. On 4.10.2004 complainant contacted Dr.Shirish Navgale and at that time it was opined by Dr.Navgale that surgery of cataract was not performed properly. Therefore complainant suffered blindness. But said doctor did not give anything in writing. Thereafter complainant approached to Forum demanded Rs.1 lakh as compensation and Rs.10,000/- for mental agony.

3. Appellant appeared before the Forum and denied the claim. It is submitted that complainant did not pay single pai as consideration. Therefore she is not consumer as per definition of 'consumer' in Consumer Protection Act. The surgery of cataract was performed properly as installation of lens was not decided, lens were not installed. Legal notice was replied by appellant properly. Appellant asked for some evidence to show that surgery done by appellant was not proper. But not a single document was supplied by the complainant. It is submitted by appellant that there was no deficiency in service or medical negligence as alleged committed by appellant.

4. After hearing both the parties Dist.Forum partly allowed the complaint and directed appellant to pay Rs.30,000/- with interest @8% from the date of order.

5. Dissatisfied with the said judgment and order original opponent came in appeal.

6. Adv.Shri.S.S.Rathi appeared for appellant, Adv.Shri.Umesh Shete appeared for respondent. It is submitted by Adv.Rathi that complainant approached to appellant for surgery of cataract but it was never promised that lens will be installed. It is further submitted that if the complainant would have grievance about the surgery she should have approached to appellant instead of approaching any other doctor. It seems that without making grievance with the appellant complainant approached to another doctor i.e. Shirish Navgale. It is submitted by Adv.Rathi that no expert evidence or evidence of Dr.Navgale to show that surgery performed by appellant was not proper is produced by complainant. Even no case papers were produced by complainant before the Forum to show that treatment given by appellant was not proper. It is further submitted by Adv.Rathi that certificates issued by Civil Surgeon about 100% 4 F.A.No.:1928/2006 blindness of the complainant were issued to obtain concession in the travelling. Therefore said certificates are not to be believed. It is submitted that Dr.Shirish Navgale deposed before the Forum nowhere stated that due to negligence committed by appellant complainant suffered blindness.

7. In support of his contention he relied on 'Bibekanand Panigrah

-Vs- Prime Hospitals Ltd.& Ors.' reported in I(2011) CPJ 38, Orissa State Commission held that -"Deceased never made contact with OP NO.2 regarding further treatment after leaving hospital and moved from one hospital to another-not proper to fasten blame on OP". He also relied on 'Martin F.Dsouza -Vs- Mohd. Ishfaq' reported in 2009(3)SCC

1.

8. Adv.Shete appeared for respondent submitted that it was decided that cataract operation will be performed with installation of lens. But in fact lens were not installed. It is further submitted that the contention of appellant that surgery was performed free of charge is falsified by issuance of receipt for Rs.4900/-. In fact Rs.10,000/- were recovered as charges but receipt of Rs.4900/- only issued. Therefore contention of appellant that operation done free of cost cannot be believed. It is further submitted by Adv.Shete that as and when complainant suffered by pain she approached to appellant but appellant did not response to any complaint. Therefore complainant was constrained to issue legal notice which was issued on 17.8.2004. Therefore contention of appellant that after surgery complainant never approached to appellant is proved to be false. It is further submitted by Adv.Shete that as complainant was suffering from 100% blindness she was constrained to approach another doctor i.e. Shirish Navgale who performed Yag-Laser Capsulotomy on the complainant and prescribed spectacles of 10 number due to which complainant could at least see some object. Certificate issued by Civil Surgeon 5 F.A.No.:1928/2006 though for any reason clearly mentioned that complainant is suffering from 100% blindness so said certificate cannot be discarded. It is further submitted by Adv.Shete that case papers were with the appellant only. But appellant did not produce the same before the Forum. Therefore Dist.Forum rightly considered all the facts and record while awarding compensation. Adv.Shete relied on 'Minor Marghesh K.Parikh -Vs- Dr.Mayur H.Mehta' reported in IV(2010) CPJ 50(NC) wherein it is held by Supreme Court that "doctor failure to produce case papers before the Forum is itself deficiency."

9. We heard both the counsels at length and perused the record. It is an admitted fact that complainant approached to appellant for surgery of cataract. It is contention of appellant that surgery done free of cost. But receipt issued for Rs.4970/- falsities the claim of appellant. It is also admitted fact that surgery for cataract was done and lens were not installed. In our view after surgery of cataract installation of lens is compulsory. Otherwise there is no use of said surgery. Appellant committed deficiency in service by carrying cataract surgery without installing lens. Generally the case papers relating to treatment of any patient are kept with the hospital. But in the present case appellant did not bother to produce said case papers before the Forum. On the other hand appellant tried to contend that case papers are with complainant which is normally not the practice. While perusing the written version filed by appellant before the Forum it reveals that appellant only tried to deny the allegations made by complainant. But he did not explain the treatment given by him. Even he did not try to explain the suffering faced by complainant on which count. In our view doctor who performed surgery is proper person to explain treatment given. In the present case appellant did not bother to explain true facts before the Forum. In our view Forum rightly considered all the facts and record while allowing the 6 F.A.No.:1928/2006 complaint. We do not want to interfere the order passed by the Forum. Hence, O R D E R

1. Appeal is dismissed.

2. Appellant to pay Rs.5000/- to org.complainant as cost in the appeal.

3. R & P be sent back to the Dist.Forum.

4. Copies of the judgment be issued to both the parties.

K.B.Gawali,         Mrs.Uma S.Bora               D.N.Admane
 Member                Member              Presiding Judicial Member


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