Passed  by  Shri  Atul D. Alsi, Hon’ble President.

1. The complainant filed complaint case against the medical negligence in performing operation of cataract and thereby claiming compensation of Rs. 19,50,000/- along Rs.10,000 towards cost of litigation.

Facts ofthe case  in short

2. The complainant approached to O.P.No.1 Dr. for weal sight- from right eye on 21.1.2017 and after preliminary examination and necessary tests the O.P.No.1 advised for cataract operation. The O.P.No.1 performed the cataract operation on 24.1.2018 from 7 to 9 pm. and discharged the complaint on 25.1.2017. On 15.2.2017 as per adviced O.P.No.1, the complainant came for examination but prescribed wrong treatment and adviced to take wrong eye drop. The O.P.No.1 has failed to take proper care in administration of injection without sterilisation for the right eye. The O.P.No.1 adviced sonography on 21.2.2017 and again adviced to perform 2nd operation as the complainant could not have proper sight. After second operation the eye sight of complainant has not been changed and complaint could not see properly therefore the O.P.No.1 adviced to take further treatment at Hyderabad.  The O.P.No.1 have failed to provide necessary medical case papers to the complainant after repeated demand thereafter the complainant approached to O.P.No.2 for further treatment on 24.3.2017 the thereafter the O.P.No.2 performed operation on the right eye of complainant but even thereafter the complainant could not get the proper eye sight due to negligence in performance of operations  by O.P.No.1.  The complainant could not see anything from right eye therefore the complainant filed the criminal complaint in police station Ganeshpeth Nagpur. The Police station called expert opinion from Civil Surgeon Nagpur in respect of allegations of negligence in performing operation by opno.1. The Civil Surgeon has issued false report without calling and examination of complainant.  Thereafter the complainant issued legal notice to pay compensation of Rs.19,50,000/- on dated 17.9.2011 but the O.P.No.1 has failed to comply the notice therefore the present complaint in filed before this Commission.
3. After admission of complaint notices were issued to the opposite parties and O.P.No.2 served but could not appear. Hence complaint proceeded exparte against O.P.No.2 on dated 30.1.2020. 
4. O.P.No.1 filed reply and denied the allegation and submitted that the complainant approached for examination of his right eye on 21.1.2017 to O.P.No.1 and after examination the O.P.No.1 adviced for cataract operation.  After admission the O.P.No.1.performed surgery for Extra Capsular Cataract Extraction Synachaeotomy and Anterior Viterectomy with Posterior Capsular Intra Ocular Lens. At the time of operation the O.P.No.1 given all information in respect of operation and possibility of the result. The complainant paid Rs.10,000/- towards operational expenses and issued receipt at the time of discharge on 25.1.2017 and adviced to take necessary precautions and one month rest.  The O.P.No.1 is eye surgeon having completed M.B.B.S. and D.O.M.S and having registration No.50536. On dated 21.2.2017 the sonography  was performed and thereafter the operation of three port vitrectomy with exchange and ACIOL was performed and thereafter on 23.2.2017 the complainant was discharged. Thereafter the complainant went to the hospital of O.P.No.2 on dated 5.3.2017 the complainant could see the fingers from the distance 3 meter as per summery report of O.P.No.2. The complainant was taking treatment with O.P.No.2 from 19.4.2017. As per report of Civil Surgeon there is no negligence in performing cataract operation from O.P.No.1. for the complicated cataract Surgery hence there is no negligence on the part of O.P.No.1 therefore the complaint may be dismissed.
5. Counsel for complainant argued that O.P.No.1 adviced 2nd surgery for cataract operation is itself negligence of service.  The O.P.No.1 has prescribed wrong medicine and wrong treatment without following medical norms in performance of operation. The O.P.No.1 has failed to issue all medical papers. The complainant is relying on judgement Sarvat Ali khan Vs. Prof. R. Jogi 2007 (3) CPR 256 NC for wrong treatment and Doctor fail to diagnosis the patient. The counsel for complainant also relying on Malay Kumar Ganguly Vs. Sukumar  Mukherjee, 2009 , III, CPJ 2017 (SC) holding that Court is not bound by evidence of experts and Civil Surgeon on which is to a large extent is advisory in nature and court must drive it own conclusion and in case of  Kishanrao Vs. Nikhil Super Speciality Hospital-2019,III, CPJ supreme court wherein case of negligence in when there is primafacie evidence on record the complainant does not have to prove anything under Principle res-ipsa loquitur operates.
6. Counsel for O.P.No.1 argued that as per medical report of Civil Surgeon there is no negligence on the part of O.P.No.1 in performing of cataract surgery on complainant. The complainant has not filed an expert evidence of doctor for the negligence in performing operation on the part of O.P.No.1. The complainant fail to take all necessary precautions as per pamphlet issued to take care after operation.  The O.P.No. 1 has given all necessary case papers to the complainant at the time of discharge.  There is no prima facie evidence of negligence in performing operation by O.P.No.1 on record therefore the case is deserve to be dismissed with cost.
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7. The complainant was adviced cataract operation after examination and necessary test and after taking necessary consent and possibility of outcome of operation of cataract surgery. As per opinion given by Government college Nagpur on 14.8.2017 holding that the right eye of complainant is weak and having completed surgery but the O.P.No.1 has carried operation as per medical norms and there is no negligence on the part of O.P.No.1. The complainant has not filed any evidence of medical expert on affidavit to prove contention that at there is negligence in performing surgery by O.P.No.1. There is no prima facie evidence on record about negligence in performing cataract operation by O.P.No.1 and O.P.No.2. There was no inordinate delay in supplying the documents of medical treatment or incomplete documents.  The O.P.No.1 has taken as necessary precautions and ordinary skill which is required to be taken by any eye surgeon. The O.P.No.1 is highly qualified and experienced in performing cataract-operations. The O.P.No.1 doctor has adviced necessary precaution to be taken after operation by issuing pamphlet to that effect. Therefore there is no negligence on the part of O.P. Therefore the compliant has no merits in the case and it deserves to be dismissed as per following order.

ORDER

1. Complaint is dismissed. 
2. No order as to costs.
3. Copy of order be furnished to both parties, free of cost.