COMPLAINT FILED:27.07.2009

                                              DISPOSED ON:17.12.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

17^th DAY OF DECEMBER 2011

  PRESENT :-  SRI. B.S. REDDY                   PRESIDENT

                     SMT. M. YASHODHAMMA           MEMBER                   

                     SRI. A. MUNIYAPPA                   MEMBER

       COMPLAINT NO.1770/2009

O R D E R

Sri.B.S.REDDY,PRESIDENT

The complainant filed this complaint Under Section 12 of the Consumer Protection Act of 1986 seeking direction against the opposite parties 1 and 2 (herein after referred to as OPs) to pay damages of Rs.10,00,000/- jointly and severally with costs of the litigation on the allegations of deficiency in service on the part of the OPs.

2.         The brief averments made in the complaint are as follows:

  The complainant visited ESIC Hospital at Indiranagar on 12.11.2006 to get his right eye sight problem checked up. OP1 being the Ophthalmologist in the said hospital checked up the sight problem of the right eye of the complainant and declared that the complainant is having only 72% of sight in his right eye and advised to get himself admitted at ESIC Model Hospital at Rajajinagar, Bangalore City for further examination of the eye sight problem to undergo operation, if need be. OP1 is the Ophthalmologist even at ESIC Model Hospital at Rajajinagar. As per the advise of OP1, the complainant admitted himself at ESIC Model Hospital, Rajajinagar on 14.11.2006 and OP1 conducted further examination of the right eye and declared that the complainant would undergo operation. OP No.1 conducted operation of the right eye of the complainant on 16.11.2006. After the operation, the complainant was treated for some time as inpatient under advice, instructions and treatment of the 1^st OP. The post operation results of the operation of the right eye were not positive. During the operation, the complainant started bleeding in his right eye and that bleeding never stopped for weeks together and the total sight in the right eye was lost. The complainant was refereed to Sri. Jayadeva Institute of Cardiology, Bangalore on 17.11.2006 to know the reason for bleeding. The doctors in the said Institute on examination of the functioning of the heart gave the opinion that the heart is functioning normal and the bleeding in the right eye is not due to any problem in functioning of the heart. The OP1 was unable to stop the bleeding in the right eye, again the complainant was referred to Minto Hospital, Bangalore for check up and treatment. The doctors at Minto Hospital did all possible efforts to stop the bleeding in the right eye, but it was not possible. The doctors at Minto found out the reason for bleeding in the right eye that the main blood supply vein to the right eye was cut during the operation time and that vein should not have been cut and it is irreparable. On account of this irreparable damage caused during operation by OP No.1 on 16.11.2006 while conducting operation, the entire eye sight of the right eye of the complainant is lost for ever. The complainant underwent post operation treatment at Minto Hospital and also at Netradhama Hospitals Pvt. Ltd., for stopping of bleeding and swelling. The bleeding was stopped after in total sight in the right eye is lost. The act on the part of the OP No.1 in cutting the main blood supply vein to the right eye during operation is ‘professional negligence’  attracting penal provision under Section 338 Indian Penal Code and Section2(1)(g) of the Consumer Protection Act, 1986 for which the OPs are jointly and severally responsible. The complainant was working at Bittool Pvt. Ltd., Doddakallasandra, Bangalore-560 078 as Linder operator and was drawing monthly salary of Rs.15,000/-. In addition he was doing business in estate agency and fortune telling. On account of this loss of eye sight, the complainant has been removed from his employment and unable to carry out his other business activities. The complainant got issued legal notice dt.22.12.2008 to OPs demanding damages of Rs.10,00,000/-. The notice is duly served on both the OPs, they have not complied the demand.

3.The complainant claim the following damages:-

(i)               compensation towards loss of

    eye sight in the right eye of the

    complainant                                         Rs.5,00,000/-

(ii)            compensation towards loss

        of future earnings                                Rs.3,00,000/-

(iii)         compensation towards inconvenience

for the rest of the life due to loss of

eye sight in the right eye                      Rs.1,50,000/-

(iv)          compensation towards medical

         expenses, transportation etc.               Rs.50,000/-

                                  Total                    Rs.10,00,000/-

The cause of action arose on 16.11.2006 when complainant was operated at ESIC Model Hospital, Rajajinagar, Bangalore. Hence the complaint.

4.   OP-1 filed version contending that this Forum has no jurisdiction to entertain the complaint, as the dispute raised is outside the purview of the Consumer Protection Act. Further, the eye operation was performed on the complainant on 16.11.2006 and the complainant has now approached this Forum in July 2009, with almost 18 months delay in filing the complaint. The complaint is barred by limitation. OP1 is a qualified Eye Surgeon at ESIC Model Hospital, Rajajinagar, Bangalore, with 18 years of experience in performing the Cataract performed Biometry (Calculation of IOL Power) surgery. The complainant was admitted to the ESIC Model Hospital, Rajajinagar on 15.11.2006, OP1 performed Cataract Extraction operation on the Right Eye of the complainant on 16.11.2006. OP1 with full professional diligence, taking into consideration the normal functioning of all the vital signs including the Diabetic status of the patient, the Doctor operated upon the complainant for small incision sutureless cataract surgery with Anterior Vitrectomy and ACIOL implantation. After the surgical operation, the eye condition at the end of the procedure was found to be satisfactory and thereupon, the patient was shifted to the eye ward. It is denied that during he operation, the complainant started bleeding in the right eye and that bleeding never stopped for weeks and the OP1 was unable to stop the bleeding and the complainant was referred to Sree Jayadeva Institute of Cardiology, Bangalore on 16.11.2006 to know the reason for bleeding. The operation was conducted on 16.11.2006 the post operative result of the operation is observed and follow up advise will be given only after the dressing is removed, and that was done on 17.11.2006, the first post operative day. During the early post operative period on 16.11.2006 when the patient developed vomiting, the physician, the Second OP examined the complainant and suspecting Myocardial Infraction with raised B.P referred the patient to Sree Jayadeva Institute of Cardiology on 16.11.2006 at 3 P.M., in order to ascertain the general condition of the patient which is neither directly nor remotely connected to his Cataract Surgery. It is denied that the doctors at Minto Hospital found the reason for the bleeding was due to the main blood supply vein to the right eye was cut during the operation and that vein should not have been cut. It is submitted that on 18.11.2006 when the complainant returned back from Sree Jayadeva Institute of Cardiology the post operative day dressing was done and then the Hyphema (Blood in Anterior Chamber of eye) was noted. There was no active bleeding observed; however, after the necessary treatment evacuation of Hyphema was done on 21.11.1006, the condition of the patient on the table was found to be satisfactory. Further, the patient was referred to Minto Hospital on 22.11.2006, to rule out vitreous hemorrhage (blood in posterior chamber) as the cause of Hyphema B Scan and vitreo retinal facility is not available in ESIC Model Hospital. The gross negligence on the part of the complainant in not following the medical advice to go over to the Minto Hospital. Instead, the complainant has gone to the Nethradhama Eye Hospital, where the same treatment evacuation of Hyphema was done all over again. The complainant visited Minto Hospital only on 29^th January 2007 and 20^th February 2007 when he had developed Tractional Retinal Detachment over a period of two months as no active surgical intervention for vitreous hemorrhage was done at Nethradhama Hospital due to poor physical health of the patient. The contributory negligence on the part of the complainant led to the consequential deterioration of the eye sight as the patient has not followed up with the parent department from where he was referred for Super Specialty Treatment for further necessary evaluation and management, and not for the treatment to stop bleeding. Hence, it is prayed to dismiss the complaint.

5.   OP2 filed version contending that she is HOD of Medicine at ESIC Model Hospital at Rajajinagar. She is not the Superintendent of ESI Model Hospital, Rajajinagar. The complaint filed against her is misconceived; the same is liable to be dismissed. During the course of operation on 14.11.2006, since the complainant complained of chest pain and breathlessness, OP2 referred him for treatment to Sri.Jayadeva Institute of Cardiology. Apart from the said examination of the complainant, OP2 has not investigated the complainant at any time previously or thereafter hence she cannot be held vicariously liable. It is denied that on account of continuous bleeding of the eye the complainant was referred to Sri.Jayadeva Institute of Cardiology, there is no professional negligence on the part of the OP2. There is no cause of action against the OP2, the complaint is barred by limitation. Hence, it is prayed to dismiss the complaint.

6. After OP3 was impleaded subsequently, OP3 filed version stating that OP1 and 2 who have attended the complainant are qualified and well experienced doctors. It is denied that the complainant was not properly treated and the injury occurred due to the carelessness of OP1 and 2.  Further it is submitted that OP1 admitted the complainant on 16.11.2006 for “Small Incision Sutureless Cataract Surgery with Anterior Vitrectomy with Anterior Chamber Intra Ocular Lens Implantation” on the right eye. The same day afternoon patient was examined by OP2 for complaints of vomiting. The patient was referred to Sri.Jayadeva Institute of Cardiology and the poor general condition of patient was explained to patient’s wife, patient was not available for first post operative day dressing on 17^th November 2006, as he was admitted at Sri.Jayadeva Institute of Cardiology to improve his general condition. On 18.11.2006 patient returned to ESIC Model Hospital and 2^nd post operative day dressing was done and hyphema (Blood in Anterior chamber of eye) was noted and patient was started on conservative treatment for blood to resolve as hyphema is one of the known complication of cataract surgery in early post operative period and the patient was referred back to physician Dr.Nandini Swamy to follow up his hypertensive status and general condition. Even after 3 days when the blood in eye (hyphema) did not resolve with conservative treatment, the patient was posted for anterior chamber wash on 21^st Nov, 2006. On the table, after the anterior chamber wash there was no active bleeding and anterior chamber IOL was well centered. But on 22^nd Nov, 2006 when the dressing was removed again hyphema was noted and suspecting a new vessel leakage in posterior segment as the patient was a known diabetic and detected to be hypertensive in post operative period. The case was referred to tie-up hospital i.e., Minto Hospital Retina Clinic by 1^st OP as there is no Vitreo-Retinal facility available in the ESIC Model Hospital. After 22.11.2006, the hospital could not follow up the case as the patient did not come back for post operative follow up at ESIC Model Hospital, Rajajinagar. The complainant never complained to the Hospital authorities. The Medical Superintendent of Sri.Jayadeva Institute of Cardiology was requested to give summary of the case which was referred by OP2 suspecting fresh interior/posterior wall injury on 16.11.2006. The treating doctor has issued detailed discharge summary, in which he states that the patient was admitted with history of sudden onset of palpitations associated with profuse sweating was investigated for the same and was diagnosed as new onset atrial fibrillation with fast ventricular rate and after giving appropriate treatment the atrial fibrillation rate was controlled and patient was discharged on 17.11.2006 with an advice to attend ESIC Model Hospital for further management. The complainant on his own got treated at Nethradhama Super Specialty Hospital at Jayanagar, Bangalore. It is seen from the certificate issued by the said hospital on 03.10.2009 that the complainant had failed to follow up the instructions issued by the doctors. There is no deficiency in service or negligence on the part of the OP3 or the doctors working in the hospital.  Hence, it is prayed to dismiss the complaint.

7.In order to substantiate the complaint averments, complainant filed affidavit evidence. OP1 and 2 filed affidavit evidence in support of their defence version. The Joint Director (Administrative) at ESI Model Hospital, Jayanagar filed affidavit evidence in support of the version of OP3.

8.   The complainant, OP 1 and 3 filed Written Arguments.

9.Arguments on both sides heard.

10.The point for consideration is: 

Whether the complaint filed by the complainant is within the period of limitation.

11.We record our findings on the above point in negative:

R E A S O N S

12. At para-14 of the complaint it is pleaded that the cause of action for the complaint arose on 16.11.2006 when the complainant was operated at ESIC Model Hospital, Rajajinagar, Bangalore, due to negligence operation conducted by the OP-1, within the jurisdiction of this Forum. It may be noted that the complaint is presented on 27.07.2009, the same is not within two years from the date on which the cause of action has arisen as provided under Section-24(A) of the Consumer Protection Act. Thus the main contention of the Ops is that the complaint filed is barred by limitation and no application for condonation of delay has been filed, hence the complaint is liable to be dismissed.

13.In AIR 2009 SC 2210, the State Bank of India V/s B.S.Agriculturual Industries, the Hon’ble Supreme Court held that provision as to Limitation is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed there under. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing.

 In Haryana Urban Development Authority V/s B.K.Sood, (2006) CPJ(1) (SC) the Hon’ble Supreme Court held that Section24-A of the Consumer Protection Act cast a duty on the commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

14.The principles laid down in the above ruling clearly goes to show that the Consumer Forum must deal with complaint on merits only if the complaint has been filed within 2 years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. The complainant has not shown any cause much less sufficient cause for condoning the delay in filing the complaint. The period of two years limitation from the date of accrual of the cause of action i.e., 16.11.2006 was till 16.11.2008 but the complaint has been filed on 27.07.2009, hence the same is barred by limitation. Accordingly, we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed as barred by limitation.  Considering the nature of dispute no order as to costs.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 17^th day of December 2011.)

MEMBER                         MEMBER                PRESIDENT

Cs.