State Consumer Disputes Redressal Commission
Kalinga Eye Hospital & Research Centre, vs Bhagirathi Sahu, on 11 March, 2022
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FIRST APPEAL NO. 45 I
In the matter of:-
An application under Section 15 of the Consumer
Protection Act, 1986 and Rules framed there under.
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In the matter of:-
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Kalinga Eye Hospital & Research Centre, :ruo
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represented through its Director, i3li
At: Dakshin Kali Road, i'a
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P.O. /P.S. / Dist: Dhenkanal - 759 001. a
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(O.P.No.1 in the Forum below) I
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1.Sahu, S/o Late Binayaka Sahu, At: Saratala, Ward No.7, Deogarh Municipality, I t\ P.O. / P.S. / Dist: Deogarh.
.. ... Respondent.
(Complainant in the Forum below)
2. The Chief District Medical Officer, Deogarh, II At: District Head Quarters llospital, P.O. / P.S./ Dist: Deogarh.
Proforma Respondent.
Sl. No. note as to action (if any),
of Order taken on Order
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Heard learned counsel for t e appellant and the ondent who appears in person.
. Here is an appeal filed u/s 15 of the erstwhile nsumer Protection Act, 1986 ( ereinafter called the I Act'). Parties to this appeal shall be referred to with eference to their respective stat s before the District The factual matrix leading to the case of the plainant is that an eye camp s organized at the nstance of C.D.M.O., Deogarh under the National rogramme for Control of BlincJne (ln short NPCB). OP o.1 the NGO took up the cataract peration programme n District Headquarters Hospitat, garh through their n doctor. lt is alleged inter olio hat on 8.12.2009 the and his cataract r i'., i,,r r -tr\ Sl. No. note as to action (if any), ORDER WITH SIGNATURE of taken on Order operation was conducted bY d or of OP No.1. lt is further alleged that the left eye f the compilainant was damaged in spite of all the dvice obeyed by the complainant. Since complainant nd damage of his left eye, he approached the C.D. .O.,. Deogarh to give opinion, who referred him to V.S Medical College, Burla where the doctor oPined that the omplainant has tost his eye sight (left eye). Since there i medical negligence bY the doctor conducting cataract eration, comPlainant got harassment and mental Pain ctuding toss of left eYe. So, he approached the OPs but they did not listen for which complaint was filed.
4. OP No.L filed written versi stating that theY have conducted the cataract oPeratio on the left eye of the complainant. There is no a y rnedical negligence 3 Date of Office note as to action (if any), ORDER WITH SIGNATURE ' Order taken on Order ommitted on their part and the all gations are false. lt is lso submitted that they have cond cted the operation as r the guidelines of NPCB. So, the is no any deficiency service on their part.
OP No.2 filed written vers r'l stating that the mplainant has undergone catara operation on his left ye by Dr.Harishankar Patra, Opht almic Surgeon of OP .1. lt is further averred that C. .M.O., Deogarh has vited OP No.1 to conduct catar ct operation under PCB programme. Complainant an other persons were perated by OP No.L. lt is ave ed that when the omplainant approached, as there s no Eye Specialist in he District Headquarters Hospi , Deogarh, he was ferred to V.S.S.Medical College and Hospital, Burla l,trhere it was found that the comp inant has lost his left :-VI.
I I I Sl. No. note as to action (if any), ORDER WITH SIGNATURE of taken on Order eye. lt is also averred that OP No. has been paid Rs. 750/- towards cost of consumable in uding sutures, drugs, transportation, screening, mo ation and cost of spectacte from government fund s per the guideline of the NPCB Scheme corroborating e document filed by OP No.1. Mainly, OP No.2 is th facilitator of NPCB programme. They have no any de crency rn servlce.
5. After hearing both Parties, learned District Forum passed the.following imPugned or er:-
'xxx xxxxxx We direct the OP .L (NGO Hospitol) to PoY Rs.2,d0,000/- (Rupees Tt Lacs) for the loss of vision of the comploinont co by the OP No.1 (NGO Hospitol) resulting in tive cotaract oPerotion conducted by its doctor. OP No.1 is also directed to give Rs,2,000/- (RuPees thousand) only for then litigation exPenses. The No.1 is directed to comPlY the above direction 45 doys of receiPt of this order failing which the OP No.l- is liable to PaY a 41 5 Date of note as to action (if any), ORDER WITH SIGNATURE Order taken on Order further @ g% per qnnuml interest on the obove a mou nt till rea I ization. "
. Learned counsel for the appell{nt submitted that the earned District Forum has not consldered the case of the P with proper perspectives. Aftording to him the mplainant has not approached the operation to e doctor of OP No.1. Further, He submitted that no xpert opinion has been obtained lto finO out whether is any negligence on the parlt of the doctor, who rformed the cataract oberation of the plainant/respondent. lt is {ubmitted that the .l mplainant did not turn up afterloperation in spite of nstruction in the docurnent suppli{d to the complainant l.
nd he only approached to Oe rvofz after one year and ight months. Learned District F{rum ought to have I I I . honsidered the conduct of the plainant instead of 6 Sl. No. Date of Office note as to action (if any), ORDER WITH SIGNATURE of Order taken on Order complaints which were onlY rais d after one year and eight months of the operation. further submitted that the complaint is barred bY I itation because the allegation pertained to loss of eY which was operated on 8.12.2OO9and comPlaint was filed in the year 201-2. So, he submitted to set aside the impug ed order by i'r:manding , the matter for exPert oPinion or t allow the aPPeal.
8. ln ordqr to suPPort his sub ission, learned counsel for appellant relied upon the d isions in the case of Jacob Mathew v. State of Punja and another AIR 2005 Supreme Court 3180, Martin F; Souza v. Mohd. lshfaq AIR 2009 SuPreme Court 2049 Bombay HosPital and Medical Research Centre v. Jaiswal & ors 2O2L(41 CPR 419(SC), J.N.Shori Multi peciatty HosPital and another v. Krishan Lal and an 2o2L(31 cPR ls(Nc) Sl. No. ORDER WITH SIGNATURE note as to action (if any), of Order taken on Order and Surappaneni Vidyasagar v. Ramachandra Krishna Bhat and otherc}OZL(L)CPn 304( c).
9. Respondent appearing in p son submitted that he has. been motivated for cata t operation and the cataract operation was conducte by OP No.1 but he lost his left eye due to negligence f the doctor. He also submitted that by loss of vision i left eye, he got mental harassment and agony. How he supports the impugned order.
L0. Considered the submission of Iearned counsel for the appetlant and the responden who appears in person and perused the DFR including impugned order. tL. Comptainant is required prove the deficiency in service on the part of the OPs.
OGF '' '( Sl. No. note as to action (if any), ORDER WITH SIGNATURE taken on Order L2. From the pleadings, it is ad itt.O that uncier NPCB programme, OP No.1 engaged Harishankar Patra an Ophthalmic Surgeon to conduct t e cataract operation of the complainant and others. lt is lso not irr dispute that the cataract operation was Pe ed by Dr.Patra on 8.12.2009. lt is also not in disp that th.: ColrrPlainant had approached the C.D.M.O., ga rlr in 701"t with regard to check up and he has ferred irim ro the EYe Specialist, V.S.S.Medical College a d Hospital, Burla.where expert opined that the left eYe s been damaged. Now the question arises whether medi I negligence attributed to the concerned doctor of OP N .1. ln this regard, there are ptethoras of detisions but on of ,the leading decision 'l of Hon'ble SuPreme Court of lnd a is AIR 2005 SuPreme Court 3180 Jacob Mathew v State of Punjab and 9 note as to action (if any), ORDER WITH SIGNATURE taken on OrCer nother where Their Lordships ave laid down the uidelines for evaluating pro ssional negligence. bsequently, other decisions fol d Jacob Mathew . With due respect to the a resaid decisions, it is tade clear that professional neglig ce of a doctor can be a measured by the material produc by parties before the
13. lt is for OP No.1 to prove tha doctor engaged by it not made any professional negtig e. On the other hand, onus lies on the concerned d to prove that he is innocent, he has taken utmost ca to the best of his bility for operating of eye of mplainant and has expertise on the fubject. Outdoor rtificate shows that on 9.8.201-L, the vision of the lainant was checked. Complainant was operated by Kal nga Eye Hospital and 10 Sl. No. Dale of Office note as to action (if anY), ORDER WITH SIGNATURE taken on Order of Order Order Research lnstitute (OP No.1) t rrough its Coctor on or 8.12.2009. Simply, it is a docun rent of i,nforrnation, It I contains when a CamP was o 'ganized, the date of o operation, the tYPe of oPeration and the next date of o check up. But there is nothing foul rd about the manner of o operation conducted bY the conce 'ned doctcr of DP No.L On the other hand, OP No.1 has not fil;:c' any scrap of o paper to satisfY that he has followeo the ProPe r€l' procedure of cataract oPeration so as to rule out anl ny damage to the eYe of comPlainant, 1,4. tt is sole dutY of the coFCe Ihr ld doctor or OP No.L to tc keep the record of treatment so as to keep the Patien' nt ,ed duly and thoroughll rly ative to the procedure being follor,l as per the Text under "National Pr )gramme for Control of o Blindness". When the treatmen t documents are no' ot LL Sl. No. note as to action (if any), ORDER WITH SIGNATURE taken on Order roduced by OP No.1 the onus of P No.L has remained s such and same has not been di harged properly. On e other hand, the complainant s also produced the utdoor ticket of C.D.M.O., Deog rh dated 1,0.8.201"1 here it is.found that no vision was oticed in left eye. OP o.1 has not produced any eviden e to show that after peration any other medical interve tion was there to the ft eye of the complainant. Not ly this but also the mplainant has produced docu ents for award of nefit for the loss"to his eye. Thus the complainant has roved that due to unsuccessful taract operation by octor- OP No.1, he lost the left
5. The affidavit of OP No.1 is also filed where only they enied the allegations but admitt that the operation conducted. Learned counse for the appellant I 72 Sl. No. Date of note as to action (if any), ORDER WITH SIGNATURE of Order taken on Order submitted that concerned doctor f OP No.1 has deposed in affidavit that the status of the lens positicn in the left eye was due to PseudoPhocio, w ich means that the tens has been fitted properly in the I ft eye and is in proPer place and nothing has been fou abnormal. On tl're other hand, he has opined that the ract oper-atiorr has no any relationship with loss of visio . !n this regaro, OP No.L could have maintained the tre ment r€cord to satisfY that the performance of catara , operation has no any retationship with the loss of ion. l'n absence of any document prePared showing he det"iii of cataract operation, such opinion of the or is far from proof to be considered.
L6. On the other hand, OPs ha r admitted that there is loss or damage to the left eYe the complainant but it 13 ice note as to action (if any), ORDER WITH SIGNATURE taken on Order was not due to any negligence of P No.L's doctor. This plea could have been credit worth ', had there been any evidence adduced by the OPs. Ther fore, this Commission s of the view that the OPs have fai ed to prove their plea at the cataract operation condu ed by OP No.L is not responsible for loss of vision of th complainant. On the lother hand, complainant has pr ved the professional negligence of that doctor of OP No.1, Of course the ncerned doctor is not made party to the' case. However, it is settled in law that f r the fault of doctor, the institution who engaged doctor s liable for negligence lof doctor.
L7. The expert opinion is not n ssary rn this case for Ithe simple reason that neither th District Co m m ission fnor this Commission find out any ent to call for same I Otfice note as to action (if any), ORDER WITH SIGNATURE taken on Order when treatment record is not m intained ancl produced by the OPs. Of course in the ca e of Martin F.D'Souza (Supra) it is held that expert opini n shoulci be called for.
But in this case when no treatm rnt recoi"d is produced, question of sending for expert pinion is uncalled for. Moreover, it is case of complaina t that Eye Soecialist of V.S.S.Medical College has opined t complainant has no vision in left eye.
18. ln view of the aforesaid disc sion, there is no merit in the appeal and the impugned o er is confirmed.
19. Thus, the appeal stands dismi No cost.
DFR be sent back forthwith.
Supply free copy of this ler to the respective parties or the copy of this ord be downloaded from "15 5[.:No. note as to action (if any), ORDER WITH SIGNATURE taken on Order Confonet or Website of this Comm sion to treat same as copy supplied from this Commissio ,r.rg,i.};r President Ahc+\^r4 lllof'aq-
(S.L.Pattnaik) Member rt OGP i,,rt,, -r. irlP 1FIi11.', ; '-' 1 A,.,,:l,,tr r-. ,i-,.-. r",,t! Sl. No. Date of Office note as to action (if any), ORDER WITH SIGNATURE ^a t^-A^ UI \,,Ir.lE Order" taken on Order