IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 130/S/2015.                            DATED : 21.02.2017.   

BEFORE  PRESIDENT              : SMT. KRISHNA PODDAR,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA.  

COMPLAINANT             : LAKSHMI DAS,

  S/O Sri Las Das,

  Resident of Mallaguri, Tea Auction Road, 

  Assam Railgate, P.O. & P.S.- Pradhan Nagar,

  Dist.- Darjeeling.

  Phone – 89272 15053.     

O.Ps.             1.                        : ANANDALOKE EYE CARE CENTRE

  2^nd Floor, Anandaloke Sonoscan Building,

  3/3, Hill Cart Road, Near Mahananda Bridge,

  P.O. - Siliguri, Dist.- Darjeeling, Pin- 734 001.

2.                     : DR. HRISHIKESH DAS,

  MBBS (AIIMS) MD (AIIMS) DNB,

  C/O Anadaloke Eye Care Centre,  

  2^nd Floor, Anandaloke Sonoscan Building,

  3/3, Hill Cart Road, Near Mahananda Bridge,

  P.O. - Siliguri, Dist.- Darjeeling, Pin- 734 001.

FOR THE COMPLAINANT         : Sri Santanu Chakraborty, Advocate.

J U D G E M E N T

Smt. Krishna Poddar, Ld. President.

The brief facts of the case are that the complainant wass 65 years old.   On 8.08.2015 he went to OP No.1 Ananda Loke Eye Care Centre with some sight problem in eyes and on the same day the OP No.2 who was a doctor of said eye care centre after examination told to the complainant that he has diseased of cataract which is required to be operated.  OP No.2 advised the complainant for surgical operation for removal of cataract and for implantation of artificial lenses.  The OP No.2 took the complainant before the examination machine and gave him an eye drop and then operated his eyes for which, the complainant saw a very few sight rather than before.  Two days after, the complainant again visited the OP No.2 and reported that he was suffering loss of sight day by day after the said

Contd......P/2

-:2:-

operation when the OP No.2 replied that he took out some lashes from his eye without going to any operation.  The OP No.2 behaved very roughly and asked him to take suggestion of another doctor and then at the request of the complainant OP No.2 gave an eye drop namely Carmellose sadium eye drop and told that the said eye drop will help him to regain eye sight.  Said eye drop did not act any positive and the complainant was suffering loss of vision day by day. 

The complainant was a public driver and his monthly income was Rs.20,000/-.  He was the only earning member of his family consisting of three daughters.  Due to loss of vision he was switched off from his job. 

The complainant finding no other alternative sent legal notice to the OPs through his lawyer on 16.10.2015 by Registered Post but the OPs neither gave any reply nor took any step to solve the issue.  Hence the complaint filed this case before the Ld Forum for Redressal of his grievance and demanded Rs.50,000/- towards expenses of operation and further a sum of Rs.4,00,000/- as compensation for mental agony, financial loss and harassment. 

It has been asserted by the complainant that both the OPs have committed error and both of them are guilty of medical negligence and accordingly they should be directed to give compensation as prayed for.

The case was admitted by this Forum and notice was served on the OP No.1 & 2 who entered appearance and contested the case by filing two separate written versions.

It has been specifically stated by the OP No.1 that he has been falsely implicated in this case although there is no specific allegation against him.  The OP No.1 had no role in the matter of treatment of the complainant except performing of some diagnostic tests.  The OP No.1 denied that there was any negligence or deficiency in service on the part of the OPs rather claimed that the complainant was suffering from chronic glaucoma and he had decreased vision with glasses since one year and he had irritation in both the eyes and as per requirement the OP No.2 advised medicine which is reflected in the prescriptions filed by the complainant.  OP No.1 emphatically denied that the complainant was ever operated by OP No.2 at the clinic of OP No.1.  However, since the complainant was having irritation in his eyes due to eye lashes those were removed in the OPD of the OP No.1 without any surgical operation.  The OP No.1 denied that there was any deficiency in service on the part of the OPs and it has been submitted by the OP No.1 that complainant has not suffered in any way or manner whatsoever due to any act or omission on the part of the OPs and he is not entitled to any compensation or damages whatsoever from the OPs.

Contd......P/3

-:3:-

The OP No.2 has denied the allegations brought against him in the complaint by filing a separate written version.  OP No.2 admitted that on 18.08.2015 complainant came to the Eye Care Centre, OP No.1 and narrated the problem of poor vision and watering in his left eye and thereafter OP No.1 referred him to OP No.2 who after diagnosis found that after examination of visual of the complainant the visual was R/E 69 and L/E 69 also having Trichiasis in left eye i.e., in turning of lashes and touching cornea in left eye lower lid and also have pseudophakic in both eyes i.e., undergone cataract surgery and artificial lens has been implanted.  The OP No.2 denied that on examination he narrated the disease as cataract which is required to be operated.  The OP No.2 has further stated that on examination he found that the complainant has total cupping in both eyes with pallor of the disc.  The eye pressure was examined and after enquiry about the diagnosis of glaucoma and OP No.2 confirmed that the complainant has glaucoma disease in both eyes.  OP No.2 has further stated that afterward he advised for taking anti glaucoma medicine i.e., Derwo and along with the control of the eye pressure and temperature medicine i.e., Brimo/Alphagum gel and also advised for the examination of visual field of both eyes.  OP No.2 denied that after examination he narrated the disease as cataract and advised the complainant for surgical operation for removal of cataract and for implantation of artificial lenses or he had taken the complaint before the examination machine and gave an eye drop and operated his eye. 

It has been further submitted by the OP No.2 that on 20.08.2015 the complainant came for examination of retina/visual filed and the visual field was found very small on both eyes.  After examination of visual field the OP No.2 told that the complainant was a diseased of glaucoma with advanced cupping on both eyes as such the visual field of the complainant could not be improved and the complainant was to continue the anti glaucoma medications.  OP No.2 further stated that the complainant was in turning of lashes which causing watering of his eyes.  After agreed and getting the verbal consent of the complainant, the OP No.2 did epilation of 3-4 lashes from the lower lid of the left eye and no operation is required for removing the lashes.  It is denied by the OP NO.2 that he acted very roughly with the complainant or he gave an eye drop named as Carmellose sadium eye drop and said that that will help him to regain eye sight.  It has been further submitted by the OP No.2 that on 15.09.2015 after examination, the visual of the complainant i.e., right eye 6/9 and left eye 6/9 was same as on 18.08.2015 and as such complainant was advised to continue the said prescribed medicines.  It is denied by the OP No.2 that he has committed any error or is

Contd......P/4

-:4:-

guilty of medical negligence.  OP No.2 further submitted that there was no negligence or deficiency in service on the part of the OP No.2 and as such complainant is not entitled to get any relief as prayed for and the instant case of the complainant is liable to be dismissed.

To prove the case, the complainant has filed the following documents:-

1.       Original copy of the Prescription dated 18.03.15 (Annexure-I).

 I-A & I-B.

2.       Xerox copy of the Prescriptions dated 08.02.2015 (Annexure-I/A & 1/B).

3.       Original copy of prescription dated 15/09/2015 (Annexure-II).

4.       Original copy of the driving licence (Annexure-III).

4.       Original copy of the legal notice dated 06.10.2015 with postal receipt (Annexure-IV).

5.       Original copy of the Prescription dated 28.03.2016 (Annexure-V).

6.       Original copy of the Prescription dated 15.08.2016 (Annexure –VI).

Complainant has filed evidence in-chief.

OPs have filed evidence-in-chief.

          Complainant has filed Written Notes on argument.

OPs have filed Written Notes of Argument.

Point for decision

1.       Is there any deficiency in service on the part of the OPs.

2.       Is the complainant entitled to get any relief as prayed for ?

Decision with reason

          Both issues are taken up together for the brevity and convenience of discussion.

Admittedly, the complainant came to the OP Nos.1 & 2 on 18.08.2015 with vision problem.  It is also not disputed that OP No.2 examined the complainant and prescribed some medicines as it appears from the Annexure-I.  

The specific case of the complainant is that he came to the Eye Care Centre OP No.1 with sight problem of his eyes and on examination the OP No.2 diagnosed the disease as cataract which is required to be operated.  OP No.2 after examination advised for surgical operation for removal of cataract and implantation for artificial lens and thereafter taken him before the examination machine and gave an eye drop and then operated his eyes for which the complainant saw very few sight rather than before.  Two days after complainant

Contd......P/5

-:5:-

went to OP No.2 and narrated that he was suffering from loss of vision day by day on which the OP No.2 stated that he had taken out some lashes from his eyes without going to any operation.  The OP No.2 also gave him an eye drop namely Carmellose Sodium eye drop and told that the said drop will help him to regain his eye sight.  But the complainant did not get any positive result and he lost his eye sight day by day. 

On the contrary, the OP Nos.1 & 2 in their evidence have categorically denied that there was any negligence or deficiency in service on the part of the OPs rather they claimed that complainant was suffering from chronic glaucoma and he had decreased vision with glasses since one year and he had irritation in both the eyes and as per requirement the OP No.2 advised him for taking anti glaucoma medicine i.e., Derwo along with the control of eye pressure and temperature medicine i.e., Brimo/Alphagum gel and also advised for the examination of visual field of both eyes.  On 20.08.2015 the complainant came for examination of retina/visual field and after examination visual field was found very small on both eyes and OP No.2 narrated that the complainant was a diseased of glaucoma with advanced cupping of both eyes and the visual field of the complainant could not be improved and OP No.2 advised him to continue the anti glaucoma medications.  The OPs further stated in their evidence that the complainant was in turning of lashes which causing watering of his eyes and after getting verbal consent of the complainant OP No.2 did epilation of 3-4 lashes from the lower lid of the left eye and no operation was required for removing the lashes.  The OPs further denied that OP No.2 gave any eye drop namely Carmellose Sadium eye drop to the complainant or that he assured him that the said eye drop will help him to regain his eye sight.  In this regard, the OP No.2 has further stated that on 15.09.2015 after examination the visual of the complainant i.e., right eye 6/9 and left eye 6/9 was same as on 18.09.2015 and accordingly, he advised the complainant to continue the said prescribed medicines.

On perusal of the document i.e., Annexure 1, 1/A, 1/B, II it appears that  on 18.08.2015, after examination the visual of the complainant was right eye 6/9 and left eye 6/9 and there was irritation, tears in both eyes and medicines prescribed were Derwo, Brimo/Alphagum and the prescription (Annexure-II) dated 15.09.2015 shows that the visual was 6/9 and 6/9 and same as on 18.08.2015 and there was advice to follow up the medicines six months. 

It is well settled that a claimant, whose claim is based on medical negligence, the initial burden is upon him to make out a case of a medical

Contd......P/6

-:6:-

negligence.  With the discharge of the burden which initially lies upon the claimant, the onus shifts on to the OP to satisfy the court that there was no lack of care or diligence.  Mere averment in complaint is not evidence and the allegations are to be proved by cogent evidence. 

In a reported decision reported in Jacom Mathew Vs State (2005) 6 SCC-I Apex Court held that a private complaint should not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion preferably from a doctor in Government service, qualified in that branch of medical practice who can normally be expected to give an impartial opinion.

In the instant case the complainant although claimed that due to error and medical negligency/deficiency of OPs, he has lost his sight but alleged negligency or error on the part the doctor is not established by sufficient cogent evidence.  It is also required to be mentioned that the complainant did not file any medical paper or bill in respect of the expenditure made by him for alleged cataract operation/treatment given by the OPs. 

Fact remains that complainant was suffering from sight problem and he came to OPs for treatment.  From the evidence of the OPs as well as documents, we find that complainant was suffering from glaucoma and which is not curable.  We further find that there was watering in the eyes of the complainant and OP No.2 claimed that after taking consent of the complainant he took initiative to remove the lashes, but he never did any operation of cataract or prescribed him for implantation of artificial lenses.

Complainant submitted prescriptions of two private doctors (Annexure V, VI) one of whom was a doctor of OP No.1’s clinic.  Moreover, both the prescriptions bear nothing against the OPs. 

Under such circumstances, we find that complainant has failed to prove the allegation of medical negligence/deficiency in service against the OP No.1 & 2 by adducing sufficient cogent evidence.  So, at this stage, we are not inclined to pass any order in favour of the complainant.

In the result, the case fails. 

Hence, it is

                     O R D E R E D

that the Consumer Case No.130/S/2015 is dismissed on contest against the OP Nos.1 & 2 but without cost.

Let copies of this judgment be supplied to the parties free of cost.