DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.391/2016
Mst. Akhtar Nisa
W/o Mr. Mohd. Yusuf,
R/o 170, Baba Faridpuri,
West Patel Nagar,
New Delhi ….Complainant
Versus
1. M/s Delhi Lions Eye Centre (Sight First)
Through its M.D./Chairman /Directors/A.R.
Opposite B-Block, New Friends Colony,
New Delhi-110065
2. Dr. Anita Arora
C/o M/s Delhi Lions Eye Centre (Sight First)
DMC Room No.512,
Opposite B-Block, New Friends Colony,
New Delhi-110065 ….Opposite Parties
Date of Institution : 23.11.16 Date of Order : 04.06.19
Coram:
Sh. A.S. Yadav, President
Ms. Kiran Kaushal, Member
Ms. Kiran Kaushal, Member
ORDER
- Succinctly put, the complainant Akhtar Nisa got her eyes operated in M/s Delhi Lions Eye Centre (Sight First) hereinafter referred to as OP-1. The complainant was operated upon by one Dr. Anita Arora (OP-2) in December, 2014. Complainant averred that the Cataract surgery was not performed fine resultantly some disease developed and the vision of the complainant deteriorated. The complainant again on 03.08.15 contacted OP No.2 and was asked to come again on 17.08.15 for corrective surgery. After the corrective surgery was performed OP No.2 referred the complainant to Dr. R. P. Centre, AIIMS, Delhi for further treatment. It is next stated that on 19.08.15 when the complainant went to Dr. R. P. Centre, AIIMS it was opined that PCIOL Ri Cells could not be connected resulting in inability to see fine details and the complainant had lost the vision of her right eye.
- Aggrieved by the physical and mental pain and also suffering monetarily the complainant approached this Forum with the prayer to direct the OPs to pay jointly and/or severally to the complainant a sum of Rs.10 lakhs by way of damages. Additionally it is prayed that OPs be directed to compensate the complainant by paying Rs.1 lakh for harassment, mental agony and inconvenience caused to her and OPs be directed to pay interest @ 24% on the awarded amount from the filing of the complaint alongwith litigation expenses.
- OP resisted the complaint inter-alia stating that OP No.1 is a charitable organization and is involved in performing free Cataract surgery for needy person since 1981. The complainant was referred to OP No.1 by Jan Sewa Foundation, a registered NGO carrying on their vision centre at Arya Samaj, Pitampura, Delhi. It is submitted that the complainant visited free eye check-up on 30.11.14 and accordingly free eye check-up card was prepared. OP No.1 next submits that the complainant has not paid any consideration for the services rendered therefore the complaint is not maintainable.
- It is further submitted that on 04.12.14 the complainant was operated in the right eye and was discharged on the same evening. The complainant had not made any complaint regarding the eye surgery performed in December, 2014 and had again visited the OP-2 in the month of August, 2015. It is further submitted that the complications reported by the complainant in August, 2015 were developed due to the injury suffered by the complainant in June, 2015. Thereafter a corrective surgery was performed on 03.08.15 which was also performed entirely free of cost. The complainant was further advised to visit RP Centre, AIIMS for examination of her retina as the concerned doctor suspected that it might have got damaged due to her injury. It is further submitted that the complainant again approached OP-2 on 03.11.15 and on examination her vision was found to have improved to 6/18 with glasses. It is thus submitted that the complaint filed by the complainant is false and devoid of any merits therefore it is liable to be dismissed with exemplary cost.
- Complainant has filed rejoinder to the reply filed by OP reiterating the averments made in the complaint.
- Complainant has filed evidence by way of affidavit. On the other hand, affidavit of Sh. Jitender Kapoor, Authorized Representative of M/s Delhi Lions Eye Centre (OP-1) has been filed.
- Written arguments have been filed on behalf of the complainant and OP-1.
- We have heard the oral arguments on behalf of the complainant and OP No.1.
- Having heard the arguments and perusing the material placed on record it is observed that OP in its pleadings has raised preliminary objection stating that the surgery performed on the complainant was free of cost and the complainant has not paid any consideration for the services rendered by OP. Hence the complaint is not maintainable in this Forum. The said averment was controverted stating that the complainant had paid Rs.120/- to OP No.1 before the surgery was performed. OP has placed its reliance on the judgment passed in the case of Dr. Sulekha Vs. S. Jayan & Ors. decided on 24.08.15 wherein Hon’ble NCDRC has referred to a judgment of Hon’ble Apex Court in (1995) 6 SCC 651 –Indian Medical Association Vs. V.P. Shantha & Ors. In this judgment in para 55 (9) it was observed as under:-
55 (9): Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
- In the light of above observation it is clear that the complainant does not fall within the purview of ‘consumer’ under Consumer Protection Act, 1986 as she had not paid any consideration for the services rendered. Token amount of Rs.120/- cannot be considered as payment for a Cataract eye surgery. Further, on merits it is observed that the complainant visited OP-2 after eight months of getting the Cataract surgery done which indicates that loss of vision is not a consequence of Cataract surgery. Thus, the complaint is dismissed as not being maintainable.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.Thereafter file be consigned to record room.
Announced on 04.06.19
