BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.
Complaint No.471 of 2011
Date of Instt. 04.08.2011
Date of decision:03.03.2015
Mittar Sain son of Shri Parkash Sain resident of House No.1502, Shivaji Colony, Gali No.3, Hansi Road, Karnal.
……..Complainant.
Vs.
1.Dr.G.K.Bhatnagar, Bhatnagar Eye Care Centre, Opposite Civil Hospital, Karnal.
2.New India Assurance Company Ltd. GT Road, Karnal, through its Branch Manager, vide policy No. 353600/36/09/3400000040 valid from 13.2.2011 to 12.2.2012.
…..Opposite Parties.
Complaint u/s 12 of the Consumer
Protection Act.
Before Sh.Subhash Goyal……..President.
Sh.Subhash Chander Sharma ……Member.
Argued by:- Sh.R.K.Kashyap Advocate for the complainant.
Sh. Amit Gupta Advocate for the OP No.1.
Sh.Naveen Khetarpal Advocate for the OP No.2.
ORDER
The complainant has filed the present complaint against the Ops u/s 12 of the Consumer Protection Act on the allegations that the complainant went to the OP no.1 for operation of Motia of left eye in the month of January, 2011 and paid a sum of Rs.10000/- prior to operation in advance. The OP No.1 conducted the operation of the same and he was called on 3.3.2011 and again on 11.3.2011 for check up but there was no vision in the said left eye and the complainant had told this fact to the OP no.1 on 11.3.2011. Thereafter the complainant approached Chopra Nursing Home, Rohini Delhi on 6.6.2011 for check up of his left eye and Dr.Amit Chopra disclosed that the said eye has been damaged and there was no possibility of vision. Thereafter the complainant served legal notice but in vain. The complainant has also alleged that he approached Civil Hospital, Karnal but he was referred to PGI, Chandigarh and the doctors of PGI, Chandigarh also disclosed that his left eye has already been damaged. The complainant has sought compensation against the OP No.1 on account of alleged medical negligence on the part of OP No.1.The complainant Mittar Sain has also tendered his affidavit Ex.CW1/A in support of the contents of the complaint alongwith prescription slips Ex.C1, Ex.C2 and Ex.C3 of Bhatnagar Hospital, Prescription slip of Chopra hospital Ex.C4 Copy of legal notice Ex.C5, postal receipt Ex.C6 and prescription slip issued by Civil Hospital, Karnal Ex.C7 and prescription slip of PGI Chandigarh Ex.C8.
2. On notice the Ops appeared and filed written statement. The OP no.1 in the written statement has raised the preliminary objections that the complaint was not maintainable; that the complainant has concealed and true and material facts etc.
On merits, the OP no.1 has contended that 1 he operated the complainant who was chronic patient of hypertension on 1 4.1.2011 after stabilizing Blood Pressure and the complainant again visited the hospital on 31.1.2011 but his B.P.was higher and he was given medicines to stabilize the Blood Pressure and on 31.1.2011 the complainant did not report for any problem in his left eye. The complainant again visited the answering OP No.1 on 7.2.2011 and again on 25.2.2011 but no complaint regarding vision was made and thereafter no clinical post operative complication was found The OP No.1 has denied the payment of Rs.10,000/- and has contended that a sum of Rs.3800/- was charged as economic package which also included cleaning of right eye by the laser but after the operation even a single paise was not paid. The OP No.1 has admitted that on 3.3.2011 the complainant visited the hospital and he was referred to Dr.Vikas Mittal, Visiting Cornea Specialist and the complainant again visited on 11.3.2011 with a complaint of pain in right eye and on examination Glaucoma was detected in the right eye and medicine was given and at that time also the complainant did not complaint any defect in the left eye which was operated by the answering OP no.1. In the report of Dr.Amit Chopra also there is nothing regarding any negligence on the part of OP No.1. Similarly, neither the Civil Hopsital, Karnal nor PGI Chandigarh have mentioned about the visual status of any of the eyes and as per version of the OP no.1, the complainant was given spectacle with vision 3/9 and as such the allegations that vision had lost was totally false. The OP no.1 has also denied any professional or medical negligence on his part. OP no.1 has also tendered his affidavit in support of the contentions made in the written statement alongwith certain other documents which will be discussed at the relevant stages.
Similarly, the OP no.2 has also taken the same contentions and has denied its liability to pay any amount.
3. We have heard the learned counsel for the parties and have gone through the case file very carefully.
4. Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that
the complainant has filed the present complaint against the Ops u/s 12 of the Consumer Protection Act on the allegations that the complainant went to the OP no.1 for operation of Motia of left eye in the month of January, 2011 and the OP No.1 conducted the operation of the same and he was called again for check up on 3.3.2011 and again on 11.3.2011 for check up but there was no vision in the said left eye and thereafter the complainant approached Chopra Nursing Home, Rohini Delhi on 6.6.2011 for check up of his left eye and Dr.Amit Chopra disclosed that the said eye has been damaged and there was no possibility of vision. Thereafter the complainant served legal notice but in vain. The complainant has also alleged that he approached Civil Hospital, Karnal but he was referred to PGI, Chandigarh and the doctors of PGI, Chandigarh also disclosed that his left eye has already been damaged. The complainant has sought compensation against the OP No.1 on account of alleged medical negligence on the part of OP No.1.
However, as per the contention of the OP No.1 he operated the complainant who was chronic patient of hypertension on 14.1.2011 after stabilizing Blood Pressure and the complainant again visited the hospital on 31.1.2011 but his B.P.was high and he was given medicines to stabilize the Blood Pressure and on 31.1.2011 the complainant did not report for any problem in his left eye. The complainant visited the answering OP No.1 on 7.2.2011 and again on 25.2.2011 but no complaint regarding vision was made and thereafter no clinical post operative complication was found The OP No.1 has denied the payment of Rs.10,000/- and has contended that a sum of Rs.3800/- was charged as economic package which also included cleaning of right eye by the lazer but after the operation even a single paise was not paid. The OP No.1 has admitted that on 3.3.2011 the complainant visited the hospital and he was referred to Dr.Vikas Mittal, Cornea Specialist and the complainant again visited on 11.3.2011 with a complaint of pain in right eye and on examination Glaucoma was detected in the right eye and medicine was given and at that time also the complainant did not complaint defect in the left eye which was operated by the answering OP no.1. In the report of Dr.Amit Chopra also there is nothing regarding any negligence on the part of OP No.1. Similarly, neither the Civil Hopsital, Karnal nor PGI Chandigarh have mentioned about the visual status of any of the eyes and as per version of the OP no.1, the complainant was given spectacle with vision 3/9 and as such the allegations that vision had lost was totally false. The OP no.1 has also denied any professional or medical negligence on his part.
Similarly, the OP no.2 has also taken the same contentions and has denied its liability to pay any amount.
5. However, after going through the fact and circumstances of the case, evidence on the file land the arguments advanced by the learned counsel for the parties, it is evident that the complainant was operated for left eye by Op no.1 as is evident from Ex.CI, Ex.C2 and Ex.3. The complainant had visited the Civil hospital on 12.7.2011 as shown in Ex.C7 and thereafter he visited PGI Chandigarh and got himself checked vide Ex.C8. The complainant also approached Chopra Nursing Home and got himself checked on 6.6.2011 as shown in Ex.C4. Therefore, from the evidence on record there is nothing on the file either in the report of Civil Hospital, Karnal or in the report of PGI, Chandigarh or Chopra Nursing Home, Delhi in order to infer any medical negligence on the part of OP No.1. So much so, neither the Civil Hospital, Karnal nor PGI, Chandigarh nor Chopra Hospital, New Delhi have mentioned that earlier operation conducted by the OP no.1 was a failure rather from the contents of Written statement of OP No.1 it emerges that the patient was given spectales of 3/9 vision. No doubt the complainant has placed on record disability certificate Ex.P9 by way of additional evidence but from the said disability certificate it could not be inferred that the OP no.1 was in any way negligent in performing the operation. On the contrary, the OP no.1 has placed on record all the treatment record as well as imaging report and consent letter in order to show that he performed the operation diligently land there was no negligence on his part. In order to fasten responsibility of medical negligence on the part of treating doctor, the complainant was required to give the required evidence in view of the law laid down in cases Jacob Mathew(Dr.) State of Punjab 2005(2) CPC page 515 (Full bench) while relying upon the law laid down by the Full Bench in Indian Medical Association Versus Dr. V.P.Shantha 1995 (2) CPC 602 (SC) (Full Bench) wherein the Hon,ble Apex court has laid down the law in order to infer medical negligence on the part of hospitals/doctors. However, in the instant case there is absolutely no such evidence as required in the ratio laid down in Jacob Mathew (Dr),s case (Supra) and Indian Medical Association’s case (Supra) and as such in the absence of any such evidence, it cannot be said that there was any medical negligence on the part of OP no.1.
The Hon’ble National Commission in Kersi F.Dalal Vs.Janak K.Mehta (Dr.) & Ors. 2013(I) CPC page 461 while following the law laid down in Jacob Mathew’s case (Supra) has also recorded the following principles which were required to be followed in order to ascertain medical negligence.
From the facts, the case and evidence on record appellant has not shown any reason how respondents who are well qualified doctors have been negligent in the treatment. They have adopted the procedure well established by medical protocol. Treatment was given with due precaution and care. In the absence of any cogent reason, order of State Commission does not warrant any interference- Appeal dismissed.
The Hon’ble Apex Court in Martin F.D’ Souza,s case (Supra) has held as under:
“Hence Courts/Consumer For a should keep the above factors in mind when deciding cases relating to medical negligence, and not to take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association Versus V.P.Shantha (Supra) should not be understand to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed vide para 22)
“In the matter of professional liability professions differ from other occupations for the reason that professionals operate in spheres where success cannot be achieved in every case and every often success or failure depends upon factors beyond the professional man’s control….
The Hon’ble Apex Court further observed as under:
We therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer For a (whether district, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum, or Criminal Court should first refer the matter to a competent doctor or committee of doctors specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew’s case (Supra), otherwise the policemen will themselves have to face legal action.
6. Therefore, applying the afore cited principle, it has to be held that evidence on the file is not of such a nature which could lead to the conclusion that there was any kind of medical negligence on the part of OP no.1 , rather it has to be held that operation was conducted by the OP no.1 who was a well qualified doctor using his best professional judgment and skill after conducting necessary diagnostic and clinical test. Therefore, we are of the opinion that that the complainant has failed to prove any deficiency in services on the part of the Ops and as such the complaint is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
Dated: 03.03.2015 (Subhash Goyal)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Subhash Chander Sharma)
Member.
Argued by:- Sh.R.K.Kashyap Advocate for the complainant.
Sh. Amit Gupta Advocate for the OP No.1.
Sh.Naveen Khetarpal Advocate for the OP No.2.
Arguments in part heard. For remaining arguments, the case is adjourned to 3.3.2015.
Announced
Dated: 02.03.2015 (Subhash Goyal)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Subhash Chander Sharma)
Member.
Argued by:- Sh.R.K.Kashyap Advocate for the complainant.
Sh. Amit Gupta Advocate for the OP No.1.
Sh.Naveen Khetarpal Advocate for the OP No.2.
Remaining arguments heard. Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
Dated: 03.03.2015 (Subhash Goyal)
President,
District Consumer Disputes
Redressal Forum, Karnal.
(Subhash Chander Sharma)
Member.
