National Consumer Disputes Redressal
M/S. Susrut Eye Foundation & Research ... vs Ratan Sinha & Anr. on 28 August, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3123 OF 2016 (Against the Order dated 05/09/2016 in Appeal No. 133/2013 of the State Commission West Bengal) 1. M/S. SUSRUT EYE FOUNDATION & RESEARCH CENTRE & ANR. HB-36/A/1, SEC III, SALT LAKE CITY, P.S. BIDHANNAGAR, IB MARKET, DISTRICT-NORTH 24 PGS. WEST BENGAL 2. DR. RATISH CHANDRA PAUL EYE SURGEON, C/O. M/S. SUSRUT EYE FOUNDATION & RESEARCH CENTRE,HB-36/A/1, SEC III, SALT LAKE CITY, P.S. BIDHANNAGAR, IB MARKET, DISTRICT-NORTH 24 PGS. WEST BENGAL ...........Petitioner(s) Versus 1. RATAN SINHA & ANR. 12, NEW SONALI PARK, KAMDAHARI GARIA, P.O. GARIA, PS. BANSDRONI, KOLKATA-700084 WEST BENGAL 2. DR. CHIRAG BHATT, C/O. M/S. SUSRUT EYE FOUNDATION & RESEARCH CENTRE,HB-36/A/1, SEC III, SALT LAKE CITY, P.S. BIDHANNAGAR, IB MARKET, DISTRICT-NORTH 24 PGS. WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Petitioner : Ms. Akansha Srivastava, Advocate for Mr. Rabin Majumdar, Advocate For the Respondent : Mr. T. V. George, Advocate
Dated : 28 Aug 2019 ORDER
1. Learned proxy counsel for the petitioners is present, and requests for an adjournment.
2. Learned counsel for the respondents is present.
3. We have perused the entire material on record, and also including inter alia the earlier proceedings/Orders.
4. The District Forum vide its Order dated 13.12.2012 had allowed the complaint:
Relying upon the above materials we are convinced to hold that retina was damaged during the operations done by the O.Ps but that was not for cussed however second operation by O.P. proves that second operation was done to treat retina disease but peculiar factor is that before first operation and or after that there was no such history of retina diseases of the complainant except cataract.
It actually there was history of retina diseases and detachment alongwith cataract in that case Dr. R. C. Paul should not operate cataract and when cataract operatin was done what was the need for second operation that has not been explained by the O.Ps in their written version or by any hospital documents and at the same time O.Ps have failed to prove and to explain why the complainant has lost his eye sight after simple routine cataract surgery and relying upon all the above material and also applying the principle of res ipso loquitor we are convinced to hold that O.Ps are jointly negligent in performing treatment and operation and rendering care and management in treating the complainant's eye and for which complainant lost his vision and eyesight of right eye when no negligence on the part of the complainant is proved in this case.
In the result, the complainant's case succeeds.
Hence
Ordered,
that the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the OPs.
O.P. Nos. 1 & 2 are directed to pay a compensation of Rs.5,00,000/- to the complainant as compensation for lost of his one eye during the service period of the complainant and also for mental agony and harassment for deficiency and negligent manner of service on the part of the O.P. Nos. 1 & 2 in rendering service in favour of the complainant and also for damaging the eye of the complainant.
O.P. Nos. 1 & 2 are hereby directed to deposit the entire decretal amount to this Forum for disbursement of the same to the complainant within one month from the date of this order, failing which for each days delay in payment of the decretal amount they shall be liable jointly and severally to pay a penalty of Rs.500/- each till full satisfaction of the decretal dues and if said amount is realized in that case 50% of the said amount shall be paid to the complainant and balance 50% shall be deposited to the State Consumer Welfare Fund.
Opposite parties are directed to comply the order strictly failing which penal action shall be taken against them.
(extracts from the District Forum's Order)
5. The State Commission vide its Order dated 05.09.2016 had disallowed the appeal filed by the opposite parties:
Admittedly, the Complainant underwent right posterior capsular cataract surgery on 07/01/11 at about 1 p.m. and was discharged on the same day at 2 p.m. It also appears that the next date of check up fixed on 17/01/11. From the materials on record it appears that the Complainant had applied the eye drop and followed the instructions given by the doctor and appeared before the doctor for check up on 17/01/11. It is the case of the Complainant that the OP No. 2 Dr. R. C. Paul told that a second operation was necessary for removal of some old lens particles which were still lying inside the right eye. It has been stated in paragraph 20 of the W.V. that during cataract surgery there was rupture due to old lens particles. It further reveals that the Complainant was referred to OP No. 3 Dr. C. Bhat for the second operation. It is evident from the fact as stated above that the remaining old lens particles in the right eye was the cause of the complications which the OP No. 2 could not mange and the subsequent operation by Dr. C. Bhat indicates that there was retinal detachment which was suppressed in the discharge summary. From the prescription dated 17/01/11 it appears that vitrectomy was done and old lens particles were also noted. For the second operation the Complainant remained admitted in the Hospital on 18/01/11 and discharged on 19/01/11. Evidently, the OP No. 2 failed to take standard skill and care while conducting the cataract surgery and the infection that developed could not also be managed even after second operation.
It further appears that the Complainant went to Sankara Nethralaya on 23/01/11 where further operation was done for silicone oil removal with vitreous biopsy. It was further noted in the case summary issued by Sankara Nethralaya that there was total retinal detachment in the right eye. The rupture which developed during cataract surgery led to the retinal detachment and for the second operation no informed consent appears to have been obtained. The Government of West Bengal, Department of Health and Family Welfare recorded 30% visual disability and the loss of vision in the right eye following cataract operation. All the facts as discussed above clearly indicate that there was post operative endopthalmitis which the OP No. 2 could not mange. The decision cited by the Learned Counsel for the Appellant is not applicable in the circumstances of the instant case.
The complaint has been filed praying for compensation and cost against OP Nos. 1 and 2 only. Although the OP No. 3 Dr. Bhat has been impleaded in the complaint case no relief has been sought for against OP No. 3. The Learned District Forum allowed the complaint against the OPs with cost of Rs.10,000/- and compensation of Rs. 5 lakh against OP Nos. 1 and 2. Since no relief has been claimed against OP No. 3 we are inclined to modify the impugned judgment as hereunder.
OP Nos. 1 and 2 of the petition of complaint are directed jointly and severally to pay the compensation of Rs. 5 lakh and cost of Rs.10,000/- to the Complainant within 45 days from this date failing which simple interest @9% p.a. will accrue on the aforesaid amount from the date of default till realization. The impugned judgment stands modified accordingly. The Appeal is thus disposed of.
(extracts from the State Commission's Order)
6. This revision petition has been filed against the Order dated 05.09.2016 of the State Commission.
7. Concurrent findings have been recorded by the two fora below.
8. The revision petition was filed in 2016. We are now in 2019.
9. Vide this Commission's Order dated 09.01.2018 the revision petition was dismissed for non-prosecution and in default:
Dated : 09.01.2018
ORDER
Learned Counsel for the Revision Petitioners submits that though the costs of ₹5,000/- could not be remitted to Respondent No.1/Complainant within two weeks, as directed vide order dated 10.11.2017, but he is ready and willing to pay the costs today to the Counsel appearing for the Complainant.
Learned Counsel for the Complainant submits that he is not ready to accept the costs now, as it is in violation of the time period of two weeks as given by this Commission on 10.11.2017.
Further, it is observed from the record that 50% of the amount, as awarded by the Fora below, has not been deposited by the Revision Petitioners, despite an order by this Commission on 15.12.2016. It is also observed that the dasti notice for service on Respondent No.2 also has not been collected by the Counsel for the Revision Petitioners.
In this view of the matter and also keeping in view the order dated 10.11.2017, whereby the Revision Petitioners were directed to remit the total costs of ₹6,500/- to the Complainant within two weeks, with a default clause to the effect that the Revision Petition shall stand dismissed for non-prosecution as well as in default, without further reference to the Bench, this Revision Petition stands dismissed accordingly.
Sd/-
(M. SHREESHA) PRESIDING MEMBER
10. Vide this Commission's Order dated 10.09.2018 the restoration application was dismissed:
Pronounced on 10th September 2018 ORDER Mrs. M. Shreesha, Member This M.A. No. 19 of 2018 has been filed seeking restoration under Section 22/ 22A of the Consumer Protection Act 1986, order dated 09.01.2018, by which Revision Petition No. 3123 of 2016 preferred by the Applicant herein has been dismissed for non prosecution.
2. Brief background is being noted for better understanding of the case in hand. This Commission vide order dated 15.12.2016 admitted the present Revision Petition and stayed the operation of the impugned order passed by the West Bengal State Consumer Disputes Redressal Commission (in short "the State Commission") on deposit of 50% of the amount awarded by the fora below. Thereafter on 06.03.2017 as the Respondent No.2 had left the premises and notice could not be served, fresh notice was directed to be issued to the said Respondent for 09.05.2017 on the Petitioners furnishing the latest address. Subsequently, on 09.05.2017 the latest address was not furnished by the Petitioners and the order dated 06.03.2017 was not complied, but however in the interest of justice one more opportunity was granted to the Petitioners to furnish the latest address. It is also pertinent to note that the requisite deposit in terms of the order dated 15.12.2016, by which conditional stay was granted, was also not made and therefore the interim stay of the impugned order was vacated and it was open to the Complainant to get the order enforced in accordance with law. One final opportunity was again granted on 23.08.2017 to furnish the latest address of the second Respondent on payment of cost of Rs.1,500/-. It was also clarified that if no adequate steps were taken by the Petitioners to have the said Respondent served, this Commission would be constrained to dismiss the Revision Petition for non prosecution. It was also noted that the Petitioner did not make the requisite deposit.
3. Vide order dated 10.11.2017, it was observed by this Commission that the Petitioners still did not take any steps to serve the Respondent No. 2 who happens to be one of the doctors of the Petitioner Hospital. Learned Counsel for the Respondent vehemently objected to the Petitioners being given one more opportunity as they have neither furnished the address nor have deposited 50% of the awarded amount. Though we found merit in the objections raised on behalf of the Respondent in granting further opportunity to the Petitioners to take steps for service of notice on Respondent No. 2 yet in the interest of justice one final opportunity was granted to take appropriate steps for service on Respondent No. 2 returnable on 09.01.2018, subject to payment of cost of Rs.5,000/-. It was clearly noted in the order that the Revision Petition shall stand dismissed for non prosecution as well as in default, without futher reference to the Bench if the said costs were not remitted by the Petitioner to the Complainant within two weeks.
4. On 09.01.2018 it was stated by the Respondent that the cost of Rs.5,000/- was not paid within two weeks and he was not ready to accept the cost as on that date as it is in violations of the orders given by this Commission on 10.11.2017. It was further observed on 09.01.2018 that Dasti Notice for service on Respondent No. 2 was also not collected by the Counsel for the Revision Petitioners. As there was a specific direction by this Commission on 10.11.2017 that the Revision Petition shall stand dismissed for non prosecution as well as in default without further reference to the Bench. The Revision Petition was dismissed accordingly. Thereafter on 19.01.2018, it was noted that before application for restoration would be taken up, the Applicant should comply with the earlier interim directions within four weeks and with this direction the matter was listed on 16.03.2018. Learned counsel appearing for the Petitioners/ Applicants submitted that the second Respondent has passed away and prayed for sometime to take appropriate steps in the matter and the notice was issued to the Respondent in M.A. No. 19 of 2018.
5. It is relevant to note that when the matter was listed again on 25.05.2018, which was further 8 weeks of the submissions of the counsel that Respondent No. 2 has passed away still the requisite steps for bringing on record the legal representatives was not taken. One more opportunity was given to the Applicants to do the needful however on payment of cost of Rs.5,000/- to the Respondent for that days adjournment.
6. On 23.07.2018, IA/13551/2018 was filed by the Petitioners seeking to delete Respondent No. 2 as he passed away. The death certificate shows that the second Respondent died on 10.10.2017.
7. Learned counsel for the Applicant submitted that due to paucity of time and listing of miscellaneous cases in the Hon'ble Supreme Court, collecting Dasti Notice from the Registry completely slipped out of his mind and also that he filed an Application No. IA/19730/2017 dated 08.12.2017 furnishing the details of Respondent No. 2. He further submitted that prior to the next date of hearing i.e. 08.01.2018, he telephoned the learned counsel for the Respondent and requested him to receive the cost but he had refused. The Advocate tendered an unconditional apology for not having paid the cost and seeks restoration.
8. Learned counsel appearing for the Respondent vehemently resisted the restoration on the ground that the conduct of the Revision Petitioners/ Applicant has to be kept in mind as there was repeated non compliance of the orders including the non deposit of the amount as directed to be deposited while granting interim relief.
9. Having regard to the apology tendered by the Applicants' counsel and also the fact that he had offered to pay the costs, which was not accepted by the learned counsel for the Respondent, it is clarified that this Application is not being dismissed only on account of non-payment of costs of Rs.5,000/- but also because of non-compliance of the conditional order dated 19.01.2018, The order dated 19.01.2018 is reproduced as hereunder:
"Before we take up the Application for restoration, let the Petitioner/Applicant comply with the earlier interim directions within four weeks.
List the Application on 16th March 2018."
10. Taking into consideration that the latest address of Respondent No. 2 was not furnished even after repeated adjournments from 06.03.2017,09.05.2017, 23.08.2017, 10.11.2017 and also the Dasti Notice was not collected even as on 09.01.2018, the Application to delete Respondent No. 2 was filed on 23.07.2018, when the Respondent No. 2 passed way back away on 16.10.2017. and additionally having regard to the fact that the requisite deposit was not made, even after the orders of this Commission on 19.01.2018 that the Application would be taken up for restoration only if the Applicant complies with the earlier directions, we are of the considered view that this Application be dismissed.
Sd/-
(R.K. AGRAWAL, J) PRESIDENT Sd/-
(M. SHREESHA) MEMBER
11. Vide this Commission's Order dated 12.10.2018 notice was issued on a review application filed against the Order dated 10.09.2018 (vide which the restoration application was dismissed).
12. Vide this Commission's Order dated 29.01.2019, in the interest of justice, and without entering into an elaborate treatise on the 'law' for filing applications etc., it was deemed appropriate to decide the revision petition on merit without any further delay and the revision petition was restored to its original number. It was also recorded that the revision petition will be heard and decided on merit on the next date.
13. Vide this Commission's Order dated 15.07.2019, the case was listed for final hearing on 28.08.2019 (i.e. today). Both sides were also directed to file their respective briefs of written arguments at least two weeks before the next date of hearing with copies in advance to each other.
14. Brief of written arguments has been filed by learned counsel for the respondents.
Brief of written arguments has not been filed by learned counsel for the revision petitioners.
15. It is quite evident that the revision petitioners are unduly and unwarrantedly delaying adjudication of their petition.
16. The right to file revision also has concomitant responsibility of its professional conduct.
17. In the obtaining facts and unsavory specificities, we do not deem it appropriate to accede to the request for adjournment, being made today. The request is politely declined.
18. Sufficient opportunity, and more, has been provided to the revision petitioners to profess their case professionally.
19. In the light of the above facts and situation, the revision petition deserves to be dismissed for undue and unwarranted unprofessional prosecution.
20. The revision petition is so dismissed.
21. Needless to add that the District Forum shall undertake execution as per the law.
22. Let a copy of this Order be sent by the Registry to the District Forum within seven days.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER