West Bengal

Birbhum

CC/14/115

Chandmoni Orang - Complainant(s)

Versus

1.Superintendent Glocal Hospital - Opp.Party(s)

Sanjit Kr Acharya

08 Dec 2023

ORDER

Shri Sudip Majumder. President in Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that one Chandmoni Orang, W/o. Biswanath Orang, permanent resident of  Kalyanpur, Dangalpara, P.O.- Khandagram, P.S.- Dubrajpur, District-Birbhum is a member of Schedule Tribe, subcaste-Orang and as such  she is card holder of Rastriya Swasthya Bima Yojana (RSBY) being Card No. 1908181811400031. The said Rastrya Swasthya Bima Yojona is the property of Ministry of Labour and Employment, Government of India. That the state purchased the policy for the benefit of its Citizen, i.e. for the complainant and as such the complainant being the beneficiary of state is the consumer.

            Thus, union of India has been impleaded as OP No. 2 for the just decision of the case.     

            It is the further case of the complainant that the men of the OP No. 1 with some dishonest intention visited the village of the complainant and in the name of examination of eyes free of cost entered into the house of the complainant and advised her for operation. That they also enticed her to go with them to take treatment of the eyes free of cost.

            It is the next case of the complainant that on 10/04/2014 the men of the OP No. 1 enticing the complaint brought her to hospital of OP No. 1 in absence of her husband.

            It is the specific case of the complainant that the complainant was admitted in the hospital (OP No. 1) and her right eye was treated and operated on 13/04/2014 without taking consent of her husband. That before admission the complainant was compelled to put L.T.I. on some blank and printed papers without any explanation of doing the same.

(Page 1 of 13)

            Thereafter, the complainant on the following day complained that she is feeling ache in her right eye and the OP No. 1 was informed verbally by the husband of the complainant. That the staff of the OP visited the complaint as formal visit but did not give any treatment.

            The complainant alleged that there after the complainant was brought to the OP hospital and she was given post-operation treatment, but they could not be able to cure the same and they spoiled the right eye of the complainant in wrong treatment.

            That OP hospital treated wrongly and did not take proper post-operative care and has not given proper instruction and medicine which were necessary. That the OP hospital without clinical and laboratory test of the eye of the complainant did the operation knowing fully well that they would not be able to restore the eye sight of the complainant.

            Thereafter, the OP No 1/Glocal Hospital referred her to Suri District Hospital on the pretext of better treatment.

            But the husband of the complainant without complying their aforesaid referral advice brought the complainant to Disha Eye Hospital and Research centre Pvt. (OP No. 2) on 24/04/2014.

            It is necessary to mention that the complainant was previously treated and operated upon her    left eye at Vivekananda Netralaya and that eye is now well and in good condition.

            On 24/04/2014, when the complainant was brought to the OP No. 3/Disha Eye Hospitals Pvt. Ltd., Durgapur Vide PID No PO147829 the consultant doctor therein examined the complainant who had chief complain in RE PAIN and PEDNESS. The following observation was done by Dr. Smriti Santhalia, D.O. (C.M.C. Vellore) D.N.B, F.I.C.O. (U.K.) Reg. No. 14418.

            History: RE CAT SX (RE>LE)........ Ew Vision

            Observation: RE

            CoR NEA: Total corneal address. Corneal.

Performation.

            A.C.:  Flat

            TRPS: iris prolapse.

            LENS: Pseudophakia

            RETINA: FoH

            FUNDUS: Noview

            Cilincal Impression: RE: Post-operative Endphthal-mitis.

                                                LE: pscudophaki

            Advise: RE Eviscreation under LA.

                        Blood for 13 t.Ct HB %

                        Blood Sugar (fasting)

                        BP- Check up.

(Page 2 of 13)

 

            Thereafter, on 25/04/2014 the complainant was admitted in OP No.3/Disha Eye Hospital Pvt. Ltd. and Dr. Smiriti Sonthalia treated her medically and evisceration was done by Dr. Smiriti Sonthalia.

            The complainant alleged that the complainant’s Right Eye has been spoiled due to negligent operation done by the doctor of Glokal Hospital. That Glokal Hospital and its concerned doctor and nurses are liable for the loss of RE of the complainant.

            The complainant further alleged that the OP No. 1/Glocal Hospital authority in order to misappropriate insurance of RSBY operated the RE of the complainant without her consent.

            Thus the aforesaid activities of the OP are amounting to deficiency in service.

            Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays:

1. To pass an order directing the OP to pay a sum of Rs. 4,90,000/ as compensation to the complainant .
2. To pass an order directing the OP to pay a sum of Rs. 8,000/ as litigation cost.
3. Other relief/reliefs.

The OP No. 1/Glocal Hospital, Dubrajpur, Birbhum has contested the case by filing written version denying all material allegations of the complainant and stated that there was no deficiency in service on the part of the OP No. 1 and the case is not maintainable, either in law or in fact.

OP No. 1/ Glocal Hospital stated in page 5 of their written version as “that the consent for surgery was not given by the patient’s husband is not tenable since consent of the patient was taken. Only if the patient is unable to give consent or is a minor, the consent from the patient party was taken. In this case, the patient was a major and was fit enough to give consent.”

Ultimately the OP No. 1 prayed for dismissal of the case.

All the OP members filed their written version. The complainant and her husband filed evidence in chief along with some documents and which were compared with original ones. Thereafter, the respective Ld. advocates for the OP Nos. 1 and 3 cross examined the complainant and her husband on dock before this Commission, i.e. PW-1 and PW-2. After the PW.1 and PW.2 the OP Nos. 1 and 2 did not participate in this case. No evidence in chief has yet been filed by the OP Nos. 1 and 2. Mere filing W/V and without filing evidence by OP Nos. 1 and 2 cannot stand for unchallenged written version.

The OP Nos. 1 and 2 neither filed their written notes on argument (W/N/A) nor participate in oral argument. The complainant and OP No. 3/Disha Eye Hospital filed their W/N/A and participated in oral argument.

            Heard Ld. Advocates for complainant and OP No. 3.

            Considered.

            Perused all the documents.

(Page 3 of 13)

 

 

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant was treated in respect of her right eye by the OP No. 1 and paid fees for the same to OP No. 1 through Rastriya Swasthya Bima Yojana (RSBY). Thus, the complainant is the beneficiary of said insurance policy. The complainant also purchased medicine for the same from         OP No. 1 in cash for Rs. 211/- vide Bill No. GBID64376 dated 22/04/2014. The complainant also paid fees for the same to OP No. 3/Disha Eye Hospital in cash Rs. 4,700/- vide Cash Memo/Bill No. 00092014/15 dated 25/04/2014. Thus, the complainant is a consumer under both the OP Nos. 1 and 3. OP Nos. 1 and 3 are the service providers.

            Medical services were not part of the Act but was incorporated within its ambit in the year 1995 in the care of Indian Medical Association Vs. V.P. Shantha [(1995) Sec (6) 651]. The principle was laid down by the Hon’ble Supreme Court in Para 11 of the above judgement as follows:

            “11. Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are before by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2 (1) (0) of the Act.”

            In the light of observation made by their Lordships in the above decisions we find us safe to follow them and apply the ratio in the present dispute.

            Thus/Hence, it is a fit case for adjudicate the matter under provision of C.P. Act, 1986 before this Forum/Commission.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 i.e. Rs. 20,00,000/. OP No. 1/Glocal Hospital, Dubrajpur Branch situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

(Page 4 of 13)

 

 

 

In this case, the cause of action arose from 10/04/2014 and lastly on 24/04/2014 and the case has been filed on 15/10/2014 and as such it can be said that the complaint has been filed in this forum within

the statutory period of the C.P. Act, 1986 and as such, the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that on 10/04/2014 the OP No. 1 brought the complainant to their Glocal Hospital, Dubrajpur for operation of the Right eye. The complainant on the following day complained that she was feeling ache in her right eye. She was given post operation treatment, but the OP No. 1 did not be able to cure the same and as per version of the complainant the OP No. 1 spoiled the right eye of the complainant by wrong treatment.

The complainant alleged that before operation of her right eye the OP No.1 did not take any consent from her husband or any one of her family members. In this context, the OP No.1/Glocal Hospital stated in page 5 of their written version as “the complaint that the consent for surgery was not given by the patient’s husband is not tenable since consent of the patient is taken. Only if the patient is unable to give consent or is a minor, the consent from the patient party is taken. In this case, the patient was a major and was fit enough to give consent.”

Thus, the OP No. 1 admitted the fact they did not take any consent from the patient party before the said operation.

The complainant further alleged that the men of the OP No. 1 with some dishonest intention visited the village of the complainant and in the name of examination of eyes at free of cost they entered into the house of the complainant and advised her for operation. They also enticed her to go with them to take treatment of the eyes free of cost.

In this context, a question arises before us that why the OP No. 1/Globcal Hospital, Dubrajpur, Birbhum was so over active to visit the village and operate the complaint’s eye? If treatment was free of cost i.e. for their charitable purpose only, then it was fine and we feel proud of the same. But, in the instant case the OP No. 1/Glocal Hospital received the cost of the said operation through the insurance policy of Restriya Swasthy Bima Yojana (RSBY). As per version of the complainant the OP No. 1/Glocal Hospital did not give any post-operative treatment to her and they only referred her to Eye OPD, Suri, District Hospital.

Thereafter, on 25/04/2014 complainant was admitted in the OP No. 3/Disha Eye Hospital, Durgapur and Dr. Smriti Sonthalia treated medically EVISCERATION.

(Page 5 of 13)

 

 

 

It is necessary to mention that the complainant examined two witness as P.W. 1 and P.W. 2. She examined herself as P.W.1 and submitted certain documents in support of her case and she was cross examined by the defense counsel on behalf of OPs. That she also examined her husband Biswanath Orang as P.W.2.

On 14/06/2017 Chandmoni Orang, the complainant answered before us against PW-1 as “ I have filed the case for loss of my eye due to wrong treatment. No pathological examination was done by the Glocal Hospital before operation of my eye. They did not examine my eye. They took me from my house and made operation.”

Further, on 04/09/2017, Chandmoni Orang, the complainant answered before us against PW.1 crossed by OP No. 1 as “Operation was done in night. I was released on next morning. On returning back I could not take bath. Medicine was given in the eye by hospital. But inspite of assurance they did not come here to examine me.”

The complainant answered during her cross examination by OP No. 2 as “I have no relief against OP No. 2”

The complainant also answered before us during her cross examination by OP No. 3 as “I have no allegation against OP No.3/Disha Eye Hospital regarding my eye treatment. I have no claim against them.”

On 02/08/2018, Biswanath Organ, husband of the complainant answered before us as PW-2 when cross examined by OP No. 3 as “Right eye of my wife was lost before her treatment in Disha. I have no allegation against OP Disha.” And when cross examined by OP Nos. 1 and 2 he answered as “Complainant is my wife. Right eye of my wife, Chandmoni was operated. I did not go with my wife. I was not at my home. She was taken for operation during my absence. I am not aware about said operation.”

Discussion:

It is a case of medical negligence. It is true that from ancient period doctors were raised even to the status of God. They cannot give life but can save life. Medical Practice is a mission, not profession to turned to a money making machine.

Negligence has many manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence or Negligence per se, which is defined in Black's Law Dictionary as under :

“Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either

(Page 6 of 13)

 

because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes."

            Generally, negligence means an act or omission which is not expected of reasonable man in the ordinary course of conduct. It comprises of three elements:-

Existence of duty of care, breach of such duty and consequential damage or injury. The source of duty may arise out of contract, tort or general obligation towards a society.

   Let us examine in the light of law laid down by Hon'ble Supreme Court   whether there was breach of duty by Opposite Party No. 1/Glocal Hospital and he was guilty of medical negligence or not? 

  The Duty of care has been discussed in several judgments on medical negligence of Hon'ble Supreme Court and other courts worldwide. The Hon'ble Supreme Court in Kusum Sharma and others v. Batra Hospital and Medical Research Centre & Others.[(2010) 3 SCC 480]- discussed the breach of expected duty of care from the doctor, if not rendered appropriately, it would amount to negligence. It was held that, if a doctor does not adopt proper procedure in treating his patient and does not exhibit the reasonable skill, he can be held liable for medical negligence. The complainant is required to prove that the doctor did something or failed to do something which is the given facts and circumstances, no medical professional in his ordinary senses and prudence would have done or failed to do. Similar view was taken in the case Jacob Mathew v. State of Punjab & Anr.[AIR 2005 SCC 3180] 

             In two landmark judgments of Hon'ble Supreme Court in Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr[AIR 1969 SC 128]. and A.S. Mittal vs. State of U.P[AIR 1989 SC 1570] have laid down certain duties of the doctor. The Doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his Doctor.

          Considering the Bolam's principle [ Bolam Vs. Frien Hospital Management Committee (1957) 2 All ER 118] , McNair, J. summed up the law as under:

"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."

  In the instant case the Opposite Party No. 1/Glocal Hospital failed to exercise the required ordinary skills and standards, thus held negligent.

(Page 7 of 13)

 

  More recently, this Court in Arun Kumar Manglik v. Chirayu Health and Medicare (P) Ltd. (2019) 7 SCC 401 has held that the standard of care as enunciated in Bolam (supra) must evolve in consonance with its subsequent interpretation adopted by English and Indian courts.

  In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

            In the instant case, OP No. 1/Glocal Hospital does not show the name of the Doctor in question who performed the operation on 13/04/2014 of right eye of the complainant. Even, the OP No. 1 does not disclose the professional qualification of the Doctor in question neither in their prescription nor in their written version. Hence, we cannot know whether the said Doctor had adequate professional skill and knowledge or not.

            Even, the OP No. 1/Glocal Hospital did not file any evidence in support of their case. OP No. 1 filed their written version only. After the cross examination on dock i.e. PW-1 and PW-2, the OP No. 1 did not take part in argument. No written notes on argument has yet been filed by the OP No. 1.

Consent of patient’s party:

We find in Samira Kohili Vs. Prabha Manchanda (2008) 2 SCC 1….“A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’. The consent so obtained should be real and valid.”

We also find in Nand Kishore Prasad Vs. Dr. Mohib Hawidi & Ors. 2019(2) CPR 635 (SC)....“In absence of any evidence that surgery was only life-saving option available at that time, action to operate upon patient cannot be said to be prudent decision.”

In the instant case, the complainant, Chandmoni Orang is a member of Schedule Tribe sub-case-Orang. It is fact that she cannot read or write in any language. Thus, it is next to impossible for her to know that the actual meaning of consent of patient’s party before the operation. As per instruction of the   OP No. 1/Glocal Hospital she put her L.T.I. in a paper and she does not know what was the purpose or consequence of her L.T.I. Moreover, none of the family members of the complainant were present before the OP No. 1 on the date of operation. Even, her husband is not aware about the said operation. Ordinarily, the patients are to be informed about the admitted risk, if any. If same medicine has some adverse effect or some reaction is anticipated, she should be informed thereabout. It was not done in the instant case. Thus, the act of the OP No. 1/Glocal Hospital does not come under the purview of professional ethics.

In view of our finding that there was no consent by the husband or any member of the complainant for performing operation upon her right eye, performance of such surgery was an

(Page 8 of 13)

 

unauthorized and interference with complainant’s body which amounted to tortious act of assault and battery and therefore a deficiency in service.

       We would like to rely upon the case of Achutrao Haribhau Khodwa v. State of Maharashtra[10…AIR (1996) 2 SCC 634], their Lordships 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 in tort would be maintainable. Their Lordships further observed that if the doctor has taken proper precautions and despite that if the patient does not survive then the court should be very slow in attributing negligence on the part of the doctor. It was held as 'A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care'.

In the instant case, the Opposite Party No. 1 is liable for the acts of omission.

            As discussed above, the operation of her right eye was not an emergency to be performed immediately. It could have been deferred when the husband or family members of the patient are absent. A doctor should not do experiment unless necessary and even then he should ordinarily get a written consent from the patient party. An expert should be consulted in case of any doubt. Even, after receiving the complaint of ache upon her right eye, the OP No. 1 did not call any expert to solve her problem. The OP No. 1 only referred her before the eye OPD of Suri District Hospital for better treatment. The evidence on record, the statements of witnesses clearly support the case of the complainant. We have no hesitation to hold the OP No. 1/Glocal Hospital is liable for the breach in duty of care and act of omission, thus a medical negligence.

            Expert Opinion:

We would like to rely upon the case of  Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee & Ors. [(2009) 9 SCC 22], their Lordship observed that a Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.

Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or strait jacket approach that each and every case must be referred to experts for evidence. We do not think that in this case, expert evidence was necessary to prove medical negligence.

Vicarious liability:

It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care.  Savita Garg v. National Heart Institute (2004) 8 SCC 56; Balram Prasad (2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327; Achutrao Haribhau Khodwa v. State of Maharashtra (1996) 2 SCC 634; V. Krishnakumar v. State of Tamil Nadu, (2015) 9 SCC 388 : (2015) 4 SCC (Civ) 546.

(Page 9 of 13)

 

 

According to BLACK’S LAW DICTIONARY, 11^th Edition, Page No. 1099, “Vicarious Liability” is defined as …..“Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. …..Also termed imputed liability.”

 “The vicarious liability of an employer for torts committed by employees should not be confused with the liability and employer has for his own torts. An employer whose employee commits a trot may be liable in his own right for negligence in hiring or supervising the employee. If in my business I Higher a truck driver who has a record of drunk driving and on whom one day I detect the smell of bourbon, I (along with my employee) may be held liable for negligence if his deriving causes injury. But that is not ‘vicarious’ liability.... I am held liable for my own negligence in hiring that employee or letting him drive after I know he has been drinking.” …. Kenneth S. Abraham, The Forms and Functions of Tort Law 166 (2002).

• In case of ... Master’s or occupier’s liability for servant’s negligence in certain cases, it is stated in Manu Sanghita VIII, 293-294 as :

 

“यत्रापवर्तते युग्यं वैगुण्यात् प्राजकस्य तु ।
तत्र स्वामी भवेद् दण्ड्यो हिंसायां द्विशतं दमम् ॥ २९३ ॥
प्राजकश्चेद् भवेदाप्तः प्राजको दण्डमर्हति ।
युग्यस्थाः प्राजकेऽनाप्ते सर्वे दण्ड्याः शतं शतम्” ॥ २९४ ॥

yatrāpavartate yugyaṃ vaiguṇyāt prājakasya tu |
tatra svāmī bhaved daṇḍyo hiṃsāyāṃ dviśataṃ damam || 293 ||
prājakaśced bhavedāptaḥ prājako daṇḍamarhati |
yugyasthāḥ prājake'nāpte sarve daṇḍyāḥ śataṃ śatam || 294 ||

 

1.  “If the cart turns off the road owing to the driver’s want of skill in driving, the owner is liable to be fined to hundred panas if damage is done.
2. If the driver is skillful but negligent, he alone shall be fined.
3.  If the driver is unskillful, then the occupants of the carriage shall each be fined one hundred panas.” …. Manu Sanghita, VIII, 293-294.

It appears to us from the documentary evidence of both parties that ….

• The act of the OP No. 1 is to be Vicarious Liability under the Law of Tort because the act or omission of OP No. 1 whether it is intentionally or unintentionally was in course of their duty.

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• The reason given by the OP No. 1 / Glocal Hospital for dismissal of the petition of complaint is vexatious one because the responsibility of the Glocal Hospital concerned towards the patient interest cannot be avoided by any means.
• There exists deficiency in service in respect of OP No. 1 against the complainant.

It is common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities.- Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694.

If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors.- Savita Garg v. National Heart Institute (2004) 8 SCC 56 : (2004) 8 Scale 694.

In the light of observations made by several superior Courts of law we are now required to fix exactly the responsibility behind the loss of vital limb i.e. right eye of the complainant. We find from the inception of this case, during the pendency as well, till the concluding portion the complainant has accused the OP No. 1 alone of sheer negligence in course of operation and also during post-operative period. The PW.1 and PW.2 have given oral testimony to this effect. The essence of that testimony could not have been destroyed by cross examination. On the other hand, no witness comes in support of the OPs. Virtually they are found to flee from the trial in the midway. Consequently the oral testimony of the PWs remain unhurt and unchallenged. Moreover, we find from the written version of OP No. 2 vide    Para 8- “that the complainant Chandmoni Orang a RSBY/Smart Card holder, who lost her right eye due to negligent operation by Glocal Hospital.” Again the OP No. 3/Disha Eye Hospital in their written notes on argument in Para 2 of the first page clearly stated that... “OP No. 1/Glocal Hospital treated the right eye of the complainant wrongly and did not take proper post-operative care.” More clearly it is stated in the last portion of that Para.... “the complainant’s right eye has been spoiled due to negligent operation done by the doctor of Glocal Hospital.” There is no iota of evidence, whatsoever, in the side of OP No. 1 to demolish the evidentiary value of the averments advanced by the both the OP Nos. 2 and 3 separately. The PW-1 has clearly stated that she has no claim as against OP No. 2 or OP No. 3. All that she wants is the compensation for loss of limb i.e. her right eye, mental agony, litigation cost, etc. only against          OP No. 1.

  Accordingly, we hold OP No. 1/Glocal Hospital to be vicariously liable for the acts of omission and commission committed by the Doctor who performed the eye operation of the complainant. We hold OP No. 1/Glocal Hospital liable to pay compensation to the complainant.

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Compensation:

            In the medical negligence cases the quantum of compensation is highly subjective in nature as the human life is the most precious.

In the catena of judgements of Hon’ble Supreme Court , different methods to determine ‘ just and adequate compensation ’ were led down . It was held that there is no restriction that courts can award compensation only up to what is demanded by the complainant.

 In this context, we would like to rely upon the judgment of Hon'ble Supreme Court in Sarla Verma & Ors. vs Delhi Transport Corp. & Anr.[ 2009 (6) SCC 121 ], which  observed:

"Compensation awarded does not become 'just compensation' merely because the Tribunal considers it to be just...Just compensation is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit...Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions"

 In the instant case, the complainant expenses incurred Rs. 4700/ before the OP No. 3/Disha Eye Hospital, Durgapur, due to deficiency in service on the part of the OP No. 1. The complainant is a card holder of Rastrya Swasthya Bima Yojana (RSBY). The complainant is a member of Schedule Tribe, Sub caste...Orang. Therefore, it may be said that she is not economically sound. They have to perform hard work to meet their basic needs. Without eye she hardly can perform her business or hard work. She permanently lost her Right eye due to acts of omission and commission on the part of the Op No. 1/Glocal Hospital. Thus, the complaint able to get compensation for her further loss of earning capacity as well as mental agony.

The instant case is pending from 15/10/2014. Today is 08/12/2023 i.e. 9 years and more is the period of pendency. We observe that the complainant appeared before this Commission days after days and it is very painful to her. At the time of filing of this case the complainant prayed for Rs. 4,90,000/ as compensation and Rs. 8000/ as cost of litigation and other relief. In our opinion additional relief in the form of compensation should be awarded to the petitioner.

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Even if we go through the Manu Sanghita, there is stated for remedy for medical negligence as follows:

चिकित्सकानां सर्वेषां मिथ्या प्रचरतां दमः।

अमानुषेषु प्रथमो मानुषेषु तु मध्यमः ।।

“All physicians who treat their patients wrongly shall be liable to pay fine. In the case of wrong treatment of animals, the fine shall be the lowest and in the case of human beings, it shall be the middle amercement”.  [ Manu IX-284 ]

 

It is significant to point out that the liability of Doctors to pay damages for professional negligence and misconduct is recognized under the provisions of the Consumer Protection Act.

In fact, there is no objective standard to assess the value of loss of a limb, particularly ‘eye’. It is invaluable. However, the law of land has always been in favour of the victim just to provide him/her with adequate compensation to be determined by the Court weighing convenience or inconvenience. The same should be rational, befitting and just and proper.

Hence, it is,

O R D E R E D,

                                        that the instant C.F. Case No. 115/2014 be and same is allowed on contest  with cost.

The OP No. 1/Glocal Hospital is directed to pay Rs. 10,00,000/ (Ten lakh only) as the compensation for loss of eye to the complainant. The OP shall pay Rs. 15,000/- (Fifteen thousand only) as the cost of litigation, for mental agony and for harassment to the complainant.

The entire decree will be complied by the OP No. 1/ Glocal Hospital within 45 (Forty five) days from this date of order, failing which entire amount shall carry interest @ 9% p.a. till its realization.

If the OP No. 1/Glocal Hospital failed to comply the decree the complainant would be at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.