State Consumer Disputes Redressal Commission
State Of Haryana Through Collector vs Rajender Kumar Verma on 30 August, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1412 of 2009 Date of Institution: 25.09.2009 Date of Decision: 30.08.2010 1. State of Haryana through Collector, Fatehabad. 2. Civil Surgeon, Fatehabad. Appellants (Ops) Versus Rajender Kumar Verma son of Sh. Ram Karan Resident of Arorvansh Dharamshala Road, Gali Oriental Bank of Commerce, Fatehabad. ---Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Dr. Rekha Sharma, Member. Mr. Diwan Singh Chauhan, Member. For the Parties: Mr. P.M. Anand, AAG for appellants. Mr. Anirudh Kush, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal is preferred against the order dated 02.07.2009 passed by the District Consumer Disputes Redressal Forum, Fatehabad in complainant No.486/2008 whereby the appellants-opposite parties have been held deficient for conducting operation of the left eye of the respondent-complainant by Dr. Vinod Sharma, Eye Specialist, Civil Hospital, Fatehabad (non-appellant in this appeal), and also granted following relief:-
.we are of the considered opinion that a sum of Rs.5,00,000/- (Rs. Five Lac only) shall be an appropriate amount of compensation for the loss occurred to the complainant on account of the impairment of vision in his left eye. We accordingly accept the complaint of the complainant with costs of Rs.2000/- and award a sum of Rs.5,00,000/- (Rs. Five Lac Only) to the complainant in lieu of compensation. It shall be paid by the Ops Nos.1 and 2, who are jointly and severely liable. In additionl the Ops Nos. 1 and 2 shall also to pay a sum of Rs.1,00,000/- (Rs. One Lac Only) to the complainant for mental agony and harassment. The compliance of this order be made within a period of two months failing which the complainant is at liberty to initiate the legal proceedings against the Ops. A copy of this order be supplied to the parties free of costs.
The brief facts of the present case as can be gathered from the record are that since the year 1988 the respondent-complainant had been using spectacle for distant vision. The complainant wanted to get his spectacle removed for which he contacted Dr. P.S. Hardia, in the year 1992-93. Dr. P.S. Hardia advised to the complainant for implantation of a lense in the left eye of the complainant. The complainant agreed to the advice of Dr. P.S. Hardia and accordingly by conducting an operation in the left eye of the complainant, a lense was inserted. However, after about six months of the operation of his left by way of insertion of lense, the complainant started feeling some reflection and then the complainant got checked up his left eye from Dr. Vinod Sharma, Eye Specialist, Civil Hospital, Fatehabad (opposite party No.3 in the complaint). Dr. Vinod Sharma advised to the complainant for second operation after removing the lense which was inserted by Dr. P.S. Hardia and also advised for insertion of second lense. Believing the advice of Dr. Vinod Sharma, the complainant was admitted in Civil Hospital, Fatehabad on 15.12.2006 vide Bed Head Ticket No.6668/06. The left eye of the complainant was operated upon by Dr. Vinod Sharma on 19.12.2006 and a new lense was inserted by Dr.Vinod Sharma-opposite party No.3 against payment of Rs.3,000/- as charges of the lense. However, as the opposite party No.3 Dr. Vinod Sharma was posted in Civil Hospital, Fatehabad, therefore, no receipt was issued by him for charging Rs.3,000/- as price of the lense which was brought by the doctor from his own house.
According to the complainant after 2-3 days of the operation conducted by the opposite party No.3, he felt trouble. The complainant consulted Dr. Vinod Sharma and the doctor assured to the complainant that everything would be alright with the passage of time. But when the complainant did not feel any relief from the severe pain in his left eye, the complainant consulted Dr. Parveen Arora at Sirsa on 04.01.2007, however Dr. Parveen Arora asked the complainant to consult the treating Dr. Vinod Sharma. The complainant visited the opposite party No.3 who prescribed some medicines to the complainant and assured recovery from the pain in his left eye.
In the mean time, Dr. Vinod Sharma, left the Government Job and joined Shree Ram Hans Charitable Eye Hospital, Fatehabad and when the problem in the left eye of the complainant increased day by day, then the complainant visited Shree Ram Hans Charitable Eye Hospital, Fatehabad for check up of his left eye. After examination of the left eye of the complainant, it was told by Dr. Vinod Sharma that there was some swelling in the Cornea and the same would be healed very soon, however, the complainant did not feel any relief in his left eye problem.
Thereafter, the opposite party No.3 Dr. Vinod Sharma, advised to the complainant to get examined his left eye from Dr. Tatiyal and Dr. Namarta Sharma at AIIMS, New Delhi and accordingly the complainant visited AIIMS, New Delhi where after examination of the left eye of complainant, the doctors told that Glucoma had developed in his left eye and the Cornea of the left eye had been damaged due to wrong implantation of lense by the opposite party No.3. It is alleged by the complainant that the doctors at AIIMS, New Delhi had disclosed to him that the opposite party No.3 Dr. Vinod Sharma should not have implanted the second lense which was also of very inferior quality as well as of big size and due to the implantation of the lense, the Cornea and Retina of the left eye of the complainant had been damaged. The complainant wanted to get changed the Cornea of his left eye but as there was heavy rush in the said hospital and the name of the complainant far away in the waiting list for the above said operation of changing the Cornea, therefore, the complainant visited Shah Mastana Ji Hospital Sirsa on 16.5.2008. Accordingly, the complainant was admitted in Shah Mastana Ji Hospital Sirsa on 20.06.2008 where his Cornea was changed by conducting operation on 21.06.2008. Thereafter, the complainant visited the above said Shah Mastana Ji Hospital Sirsa several times as the Cornea was not set properly and for that reason the complainant was operated upon for the second time on 25.9.2008 for Cornea but still he did not get any relief in his left eye vision. The doctors advised to the complainant to get himself operated upon for Cataract in his right eye after one year.
With the aforesaid averments, it was pleaded by the respondent-complainant that the problem in his left eye had developed due to the negligence and carelessness of the opposite party No.3 and thus attributing medical negligence and deficiency of service on the part of the opposite parties for conducting wrong operation by Dr. Vinod Sharma-opposite party No.3, the complainant sought direction to the opposite parties to pay Rs.15,00,000/- lacs as compensation, Rs.2,00,000/- for mental agony and harassment and Rs.20,000/- for operation of his right eye.
Upon notice, the opposite parties appeared and were directed to file written statement. However, the opposite parties No.1 and 2 did not contest the complaint and they were proceeded exparte. The opposite party No.3 contested the complaint by way of filing written statement. It was pleaded by the opposite party No.3 Dr. Vinod Sharma that there was no negligence on his part. However, the opposite party No.3 admitted the lense implantation in the left eye of the complainant. The opposite party No.3 denied charging of Rs.3,000/- from the complainant and took the plea that the lense was purchased by the complainant himself from the market and it was disclosed to the complainant that the vision may or may not be restored after implantation of lense. The opposite party No.3 further pleaded that at the time of insertion of lense, everything was explained to the complainant. Thus, denying it a case of any kind of deficiency of service, the opposite party No.3 Dr. Vinod Sharma, prayed for dismissal of the complaint.
In order to prove their respective claims, the parties led evidence before the District Consumer Forum. The complainant Rajender Kumar tendered his affidavit besides other documents Ex.C-1 to Ex.C-27. On the other hand, the opposite party No.3 tendered his own affidavit besides other documents Ex.R-1 to R-5.
On appraisal of the pleadings of the parties and evidence adduced on record, the District Consumer Forum accepted the complaint by granting relief as noticed in the opening para of this order.
Hence this appeal.
We have heard learned counsel for the parties and perused the case file.
There is a delay of 55 days in filing of the present appeal the condonation of which has been sought by the appellants-opposite parties by moving an application alongwith the appeal which is supported by an affidavit of Dr. O.P. Arya, Civil Surgeon, Fatehabad. It has been stated in the application that after receiving the copy of the impugned order on 15.07.2009, the then S.M.O. Incharge General Hospital, Fatehabad pursued the case but on account of his transfer, necessary action could not be taken as the officer was immediately relieved on 09.08.2009 and the concerned papers could not be traced as the same were misplaced.
Taking into account the facts in the application and in the interest of justice, the delay of 55 days in filing of the present appeal is condoned.
It is contended by Shri P.M. Anand, learned AAG appearing on behalf of the appellants-opposite parties No.1 and 2 that the finding of the District Consumer Forum with respect to the medical negligence, carelessness and deficiency of service is without any cogent and convincing evidence. Learned AAG contended that the complainant has failed to establish whether there was any proximity in the damage of Cornea of the left eye of the complainant due to the implantation of the lense by Dr. Vinod Sharma. The complainant has further failed to prove on record by way of any expert evidence holding Dr. Vinod Sharma to be guilty of the medical negligence and in fact it was the complainant who failed to adhere to the advice of the doctor to come up for follow up treatment after implantation of lense in his left eye. In support of his arguments, learned counsel for the appellants referred to the decision of the Honble National Commission in case Ms. Rohini Devi versus Dr. H.S. Chudavat and Another, 2002(1) CPC 194 (N.C.) wherein the complaint of the complainant with respect to the medical negligence was dismissed on the ground that the complainant had failed to prove any medical negligence by producing expert evidence.
On the other hand it is contended by the learned counsel for the respondent-complainant, Shri Anirudh Kush, Advocate that the complainant had got the lense implanted in his left eye from Dr. P.S. Hardia in the year 1992-93 and when he felt pain in his eye, he contacted Dr.Vinod Sharma on 15.12.2006, who advised to the complainant that the lense of his eye had tilted and therefore, on the advice of Dr. Vinod Sharma, second operation of the left eye of the complainant was conducted by inserting a new lense for which Dr. Vinod Sharma had charged Rs.3,000/- from the complainant in the Civil Hospital, Fatehabad but no receipt was issued by the treating doctor to the complainant, however, the lense was arranged by Dr. Vinod Sharma from his house. The lense was inserted on 19.12.2006 by operating the left eye. Learned counsel for the respondent-complainant further contends that thereafter the complainant started feeling pain in his left eye, the vision of the left eye of the complainant deteriorated after operation conducted by Dr. Vinod Sharma, who had assured the complainant that with the passage of time, he would recover and his vision would improve. The doctor had advised the complainant to come up for follow up treatment, but when the complainant did not feel any relief. Dissatisfied with the services rendered by Dr. Vinod Sharma, the complainant contacted Dr. Parveen Arora at Sira on 04.01.2007 who prescribed some medicines and assured the complainant that he would be recovered from pain in his left eye, but till that time Dr. Vinod Sharma, had left the Government Job and joined Shree Ram Hans Charitable Eye Hospital, Fatehabad, therefore, the complainant visited Shree Ram Hans Charitable Eye Hospital, Fatehabad for check up of his left eye because the problem was increasing day by day and after examining the left eye of the complainant, Dr. Vinod Sharma had disclosed to the complainant that there was some swelling in the Cornea and the same would be recovered very soon, but still the complainant did not feel any relief in his problem. Mr. Anirudh Kush, learned counsel for the respondent-complainant further contends that when the problem could not be subsided/controlled by Dr.Vinod Sharma, the complainant was advised by the treating doctor to get examined his left eye from Dr. Tatiyal and Dr. Namarta Sharma at AIIMS, New Delhi and thereafter the complainant visited AIIMS, New Delhi where his left eye was examined the expert doctors who disclosed that the Cornea of the left eye of the complainant was damaged due to wrong implantation of lense of bigger size by Dr. Vinod Sharma. The lense was also stated to be of very inferior quality. The complainant wanted to get changed the Cornea of his left eye from AIIMS but in the said hospital the complainant was kept in the long waiting list and under the compelling circumstances the complainant visited Shah Mastana Ji Hospital Sirsa on 16.5.2008, where he was admitted on 20.06.2008 the Cornea of the left eye of the complainant was changed by conducting operation on 21.06.2008. The complainant thereafter had been visiting Shah Mastana Ji Hospital Sirsa because the Cornea was not set properly. The complainant was operated upon for the second time on 25.9.2008 for Cornea but despite that the complainant did not get any relief from the problem in his left eye.
Having considered the rival contentions of the learned counsel for the parties, we find that in fact it is Dr. Vinod Sharma, who was responsible for medical negligence while operating the left eye of the complainant and inserting inferior quality of lense of bigger size which caused damage to the Cornea of the left eye of the complainant. The complainant has produced sufficient evidence against Dr. Vinod Sharma to prove his act of medical negligence while treating the complainant for his left eye vision. The medical negligence and deficiency of service of Dr. Vinod Sharma stands further proved from the evidence on the record discussed below.
Ex.C-1 is the affidavit of the complainant wherein the complainant had duly sworn about the negligence of Dr. Vinod Sharma while conducting operation as well as inserting lense in the left eye of the complainant. From Ex. C-6 it is clear that the complainant had developed pain in his left eye and it continued till 4.1.2007 i.e. when the complainant had consulted Dr. Parveen Arora, Eye Surgeon at Sirsa. Ex.C-8, C-9, Ex.C-11 and Ex.C-12 are the OPD slips dated 16.6.2007, 2.10.2007, 24.12.2007 and 31.3.2008 issued by the opposite party No.3 while working as Eye Surgeon in Shah Mastana Ji Hospital Sirsa. The perusal of these slips reveal that till that time the complainant had not get any relief in his left eye the operation of which was conducted by Dr. Vinod Sharma while working as Eye Surgeon at Civil Hospital, Fatehabad. Ex.C-7 is the OPD slip issued by an Eye Surgeon of Poonam Hospital, Fatehabad on 7.3.2007.
It is admitted case of the parties that Dr. Vinod Sharma, had left government job and had joined Shree Ram Hans Charitable Eye Hospital, Fatehabad. Ex.C-14 is the OPD slip issued from Civil Hospital, Fatehabad dated 5.5.2008 which established that the complainant was advised for Keratoplasty at AIIMS, New Delhi i.e. change of Cornea. Ex.C-15, Ex.C-16 and Ex.C-18 are the OPD slips issued from AIIMS, New Delhi which established that the complainant was examined at AIIMS, New Delhi and Ex.C-20 is the investigation report with respect to the check-up of the left eye of the complainant at AIIMS, New Delhji. Discharge Card Ex.C-21 issued from Shah Mastana Ji Allopathic Hospital, Sirsa proved that on 21.6.2008 the Cornea of the left eye of the complainant was changed in the said hospital. Ex.C-22 is an OPD slip dated 16.5.2008 issued by Shah Mastana Jin Allopathic Hospital, Sirsa.
From the evidence adduced on record it has been established on record that there was negligence on the part of Dr. Vinod Sharma-opposite party while conducting operation of the left eye of the complainant and inserting the lense. The contention raised on behalf of the appellants-opposite parties that any expert witness has not been examined, has no relevance in this case because it has been established that after first operation by Dr. Vinod Sharma and inserting the lense in the left eye, the condition of the left eye of the complainant had worsened. It is a case wherein the left eye of the complainant was having vision but with the help of spectacle but the complainant wanted to avoid spectacle by getting a further lense inserted from Dr. Vinod Sharma, the condition of the left eye of the complainant deteriorated to such an extent that he started losing his vision day by day. Thus, it is clear cut case where the negligence of the treating doctor can be perceived by a common man.
Reference may be made to the observation made by the Honble Supreme Court in Achutrao Haribhau Khodwa & Ors. V. State of Maharashtra & Ors, I(1996) CLT 532 (SC) wherein it has been observed that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. The facts of the present case are fully attracted to the case law cited above as is evident from the treatment record of the complainant from various hospitals including AIIMS, New Delhi.
In our view in the instant case there was no need to examine any expert witness because the negligence of the treating doctor is prima facie established on the record.
In a recent authoritative pronouncement with respect to the medical negligence, the Honble Apex Court in case cited as V. Kishan Rao versus Nikhil Super Specialty Hospital and another, 2010 CTJ 868 (Supreme Court) (CP) has held that:-
Experts opinion is needed to be obtained only in appropriate cases of medical negligence and the matter may be left to the discretion of the Consumer Forums especially when the retired Judges of the Supreme Court and High Courts are appointed to head the National Commission and the State Commissions.
There cannot be a mechanical or strait jacket approach that each and every case of alleged medical negligence must be referred to experts for evidence.
Time has come to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and specially in view of Article 21 of the Constitution of India which encompasses within its guarantee, a right to medical treatment and medical care.
In para 13 of V. Kishan Raos case (Supra) the Honble Supreme Court has observed that:
13. In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion.
This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory.
Para No.25 of V. Kishan Raos (Supra) is reproduced as under:-
25. Chief Justice Lahoti also relied on the speech of Lord Porter in Riddell v. Reid [(1943) AC 1 (HL)] to further identify the difference between the two concepts and which I quote:
A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability.
The facts of the instant case are fully attracted to V. Kishan Raos case (Supra). There is sufficient evidence on behalf of the complainant with respect to the medical negligence committed by Dr. Vinod Sharma-opposite party No.3 while conducting operation of the complainant and inserting lense in the left eye of the complainant. Therefore, the civil liability of the opposite parties with respect to the compensation to the complainant due to damage of Cornea of his left eye cannot be denied.
It is a matter of great concern that despite of voluminous evidence appearing against Dr. Vinod Sharma, the District Consumer Forum has passed an award against the opposite parties No.1 and 2 jointly and severally who have nothing to do with the act and conduct of Dr. Vinod Sharma-opposite party No.3 who was actually responsible for medical negligence. The District Consumer Forum has intentionally, for the reasons best known to it did not pass an award against Dr. Vinod Sharma, the treating surgeon and hold the performa opposite parties i.e. the State of Haryana through its Collector, Fatehabad and Chief Medical Officer, Civil Hospital, Fatehabad, responsible for the act of medical negligence of Dr. Vinod Sharma. In a very twisting manner the District Consumer Forum has adopted a clever device in holding the opposite parties No.1 and 2 responsible jointly and severally and thereby spared Dr. Vinod Sharma from his act and conduct who is in fact the man responsible for the medical negligence and has virtually damaged the cornea of the complainant while fixing lense of bigger size in his left eye. This appeal is nothing but the re-hearing of the complaint. No doubt, Dr. Vinod Sharma could not appeal against the impugned order because no order has been passed against him by the District Consumer Forum, but the District Consumer Forum has committed a greatest error by sparing Dr. Vinod Sharma from his liability to pay compensation to the complainant for his act and conduct of medical negligence. It is often noticed that the District Consumer Fora write orders in such a manner so as to spare the real culprits and to award compensation against the performa respondents-opposite parties. In this appeal we have appreciated the evidence already on record and have come to the conclusion that the entire evidence led on the record is sufficient to hold Dr. Vinod Sharma guilty of the medical negligence and deficiency of service. Even if Dr. Vinod Sharma has left the job of Civil Hospital, Fatehabad and joined Shree Ram Hans Charitable Eye Hospital, Fatehabad, he would continue to remain liable for his torturous act in damaging the cornea of the complainant.
Now we proceed to deal with the present case on the quantum of compensation awarded to the complainant by the District Consumer Forum. This Commission has recently decided five appeals on 06.08.2010 i.e. appeal No.3036/2005 titled as Dr. Hari Ram Gutain versus Gurcharan Singh; appeal No.2954/2005 titled as Dr. Hari Ram Gutain versus Bishna ; appeal No.3035/2005 titled as Dr. Hari Ram Gutain versus Soran appeal No.3033/2005 titled as Dr. Hari Ram Gutain versus Banwari Lal and appeal No.3034/2005 titled as Dr. Hari Ram Gutain versus Budh Ram. All the above mentioned five appeals related to similar nature of medical negligence wherein the eye balls of the complainants/patients had been damaged due to wrong operation by the treating doctor and even in appeal No.3036/2005 titled as Dr. Hari Ram Gutain versus Gurcharan Singh the eye ball of the complainant was removed by the treating doctor and in the said case we have awarded compensation to the complainant to the tune of Rs.2,50,000/-. Here in this appeal, the medical negligence of the opposite parties is with respect to the damage of Cornea of the left eye of the complainant and therefore, we feel that awarding of rupees five lacs as compensation to the complainant is on higher side and we reduce it from rupees five lacs to rupees three lacs for impairment of the eye vision and Rs.50,000/- on account of mental agony and harassment suffered by the complainant besides Rs.2,000/- as litigation expenses. The awarded amount shall be paid by the opposite parties i.e. opposite parties No.1 to 3 jointly and severally to the complainant within two months from today, as they were the parties in the main complaint.
The impugned order is modified on the terms indicated above and the appeal stands disposed of.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: (Justice R.S. Madan) 30.08.2010 President (Dr. Rekha Sharma) Member (Diwan Singh Chauhan) Member