State Consumer Disputes Redressal Commission
Subrata Banerjee vs Susrat Eye Foundation And Research ... on 18 May, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/818/2016 ( Date of Filing : 01 Sep 2016 ) (Arisen out of Order Dated 15/07/2016 in Case No. Complaint Case No. CC/69/2012 of District North 24 Parganas) 1. Subrata Banerjee No. W-3, CL-3, Purbachal, Salt Lake, Kolkata - 700 097. ...........Appellant(s) Versus 1. Susrat Eye Foundation and Research Centre Office at HB - 36/A/1, Sector-III, Salt Lake, Kolkata - 700 106. 2. Dr. Ratish Chandra Paul, Susrut Eye Foundation & Research Center Office at HB - 36/A/1, Sector-III, Salt Lake, Kolkata - 700 106. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Inperson For the Respondent: Mr. Abhik Kr. Das, Mrs. Koyeli Mukhopadhyay, Advocate Mr. Abhik Kumar Das, Mrs. Koyeli Mukhopadhyay, Advocate Dated : 18 May 2018 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Appeal U/s 15 of the C.P.Act 1986 is directed by the Complainant challenging the Judgement and Order dated 15.7.2016 passed by the Ld. District Forum, Barasat in Complaint case no. CC/69/2012, directing the Op No.1 to pay, within one month from the date of the order, to the Complainant Rs.1,50,000/- (Rupees one lakh fifty thousand only) as compensation on humanitarian ground without observing any deficiency in service on the part of the Ops No. 1 and 2.
Brief facts of the case as emerging from the materials on record are that the Appellant/Complainant went to Respondent No.2 /OP No. 2- Doctor on 16.3.2010 for cataract operation in the right eye and on the said date "Phaco Emulsification (RE) - Foldable PCIOL (IQ)" was done by Respondent No.2/OP 2-Doctor at Respondent 1/OP 1- Research Centre. On the next day of operation i.e. on 18.3.2010 when the Appellant/Complainant could not see through his operated eye the Appellant/Complainant contacted Respondent 2/OP 2 at Respondent No. 1/OP No. 1- Research Centre , the receptionist of which asked the Appellant/Complainant to report on 18.3.2010 and accordingly the Appellant/Complainant met Respondent No. 2/OP No. 2-Doctor on 18.3.2010 in the morning when Respondent No. 2 /OP No.2-Doctor after diagnosing "Infection" and suspecting Postoperative Endopthalmitis in the operated eye referred the Appellant/Complainant to Dr. Bhatt. Dr. Bhatt on 18.3.2010 performed "AC Wash + intravitreal vancomycin+ceflazidine +decadron (RE)" in the already operated eye and further performed operation on 20.3.2010 and 27.4.2010. Even after such successive operation when the Appellant/Complainant felt pain in the operated eye Dr. Bhatt referred the Appellant/Complainant to Dr.Chatterjee who treated the infection successfully, but opined that the operated eye of the Appellant/Complainant became damaged permanently. With the aforesaid factual back-ground the Complainant moved the Complaint Case concerned before the Ld. District Forum who passed the order in the aforesaid manner. Dis-satisfied with such order the Complainant has preferred the instant Appeal.
Appellant/Complainant appearing in person submits that after cataract operation in the right eye the vision in the right eye was lost due to post-operative Endopthalmitis indicating thereby the deficiency in proper and reasonable care and resultant medical negligence on the part of the Respondent No.2/OP No.2- Doctor.
The Appellant/Complainant continues that the documents of treatment, as available on records, do not reveal that the Respondent 2/OP 2-Doctor in course of cataract operation, to prevent postoperative Endopthalmitis took preventive action such as cleaning and dis-infection of operation theatre, application of intracameral and subconjunctiival antibiotics, application of square sclera corneal incision with internal corneal lip, use of Injectable IOL or heparinized IOL, application of Prophylactic subconjunctival antibiotic injection at the conclusion of the cataract surgery etc as revealed from the copy of Indian Journal of Opthalmology, 2008 SEPT-OCT ; 56 (5) 403-407, as available on records.
The Appellant/Complainant also submits that the absence of the aforesaid infection preventive actions by the Respondent 2/OP 2-Doctor in course of cataract operation in question resulted in eye infection which culminated in postoperative Endopthalmitis .
The Appellant/Complainant further submits that despite indication of deficiency in service and resultant negligence from the documents on record the Ld. District Forum awarded a meagre compensation, that too, on humanitarian ground.
The Appellant/Complainant concludes that in view of the aforesaid submission the instant Appeal should be allowed and the impugned order be modified to the extent of enhancement of the amount of compensation to a just and reasonable amount and awarding litigation cost as well.
On the other hand, ld. Advocate for the Responds/Ops submit that the additional evidence by the Complainant/Appellant as filed before the Ld. District Forum, as available on records, reveal that the Complainant prayed compensation for Rs.20 Lakhs (Rupees Twenty lakhs) to which if the cost of treatment of Rs.15,000/- (Rupees fifteen thousand) as per Final Bill Receipt No.32806dated 16.3.2010 , as available on records, is added then the total value of the Complaint case concerned goes beyond Rs.20 Lakhs (Rupees twenty lakhs) _ and hence the Complaint Case concerned goes beyond the pecuniary jurisdiction of the ld. District Forum, and hence the impugned order is a nullity and accordingly the instant Appellant deserves dismissal.
Ld. Advocate for the Respondents/Ops also submit that the instant Appeal is without any merit in view of the payment, by the Respondent 2/OP 2-Doctor being JDR, of compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand) as awarded by the ld. District Forum.
Ld. Advocate further submits that the operated eye was attended to by the doctors concerned on 18.3.2010, 20.3.2010 and 27.4.2010. indicating thereby that there is no deficiency in service on the part of the treating doctors.
Ld. Advocate continues that there being no deficiency in service on the Respondent 2 /OP 2-Doctor there is no vicarious liability on the part of Respondent 1/Op 1- Research Centre, too.
In support of above submission ld. Advocate refers to the decision of the Hon'ble National Commission in Namita Chatterjee -Vs- Dr. Mousumi Banerjee and Ors, decided on 22.7.2014 in RP 3083 of 2013.
Ld. Advocate concludes that in view of the aforesaid submission the instant Appeal deserves dismissal and should be dismissed accordingly.
Heard both the sides, considered the respective submissions and perused the materials on record.
As per submission by the Ld. Advocate for the Respondents/Ops the awarded amount being Rs.1,50,000/- (Rupees one lakh fifty thousand ) has already been paid by the Respondent/Ops to the Appellant/Complainant.
Further, additional evidence, by the Complainant/Appellant filed before the Ld. District Forum, as available on records, reveal that the Complainant claim enhanced compensation of Rs.20 Lakhs (Rupees twenty lakhs) (running page 113) to which if the cost of treatment being Rs.15,000/- as per Final Bill Receipt No. 32806 dated 16.3.2016 of Respondent 1/OP 1-Research Centre (running page 22), as available on records, is added then the Complaint case would go beyond the pecuniary limit prescribed by the C.P.Act and accordingly the impugned order would be a nullity.
The above referred evidence on records and submissions of the ld. Advocate for the Respondents/Ops lead to the conclusion that the Instant Appeal is without any merit and hence deserves dismissal and accordingly the same is dismissed.
The instant Appeal is disposed of in the aforesaid manner. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER