Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                       President

                    (2)      Sri Sheo Shankar Prasad Singh,

                              Member

Date of Order : - 09.07.2015

                    Sheo Shankar Prasad Singh

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties:-

1. To refund amount of Rs. 4,11, 000/- ( Four Lac Eleven Thousand only ) with compound interest @ 21%.
2. To pay Rs. 2,00,000/- ( Two Lac only ) as Compensation for mental and physical torture.

2. Brief facts of the case which led to the filing of complaint are as follows:-

Complainant is a widow and poor lady of 70 years old age. Her husband was driver and her only one son ousted her as she is blind due to criminal fault of Doctors. Now since last 10 years she is living with her daughter and son in law.

Complainant developed loss of sight in her left eye and went under treatment of opposite party no. 3 but sight of left eye deteriorated ( became worse ) rapidly under treatment of opposite party no. 2 no satisfactory reply given by opposite party no. 2.

Complainant then went under treatment of opposite party no. 3 he diagnosed that position of left eye is very serious. Opposite party no. 3 gave medicine and again referred to opposite party no. 2 for treatment of left eye.

Then opposite party no. 2 again examined the left eye and referred her to AIIMS, New Delhi for operation in left eye.

Complainant reached New Delhi on 04.03.2002 her right eye was quite O.K. on 05.03.2003 she visited AIIMS New Delhi and opposite party no. 1 examined her left eye and admitted her on 08.03.2003 and opposite party no. 1 conducted operation of left eye on 11.03.2003 and discharged on 12.03.2003 with advise to take medicine and come after one month for re – check up. Complainant returned to Patna and from 15.03.2003 the sight of her right eye started loosing rapidly.

After two months she again went AIIMS New Delhi complained to opposite party no. 1 that she lost completely sight of left eye after operation and now sight of right eye is reducing rapidly, then opposite party no. 1 advised for operation of right eye also then complainant shown her economical problem for operation ofright eye then opposite party no. 1 gave medicine and advised to come after six months for re – check up. Complainant returned to Patna and due to deteriorating situation of right eye went under treatment of AIIMS Patna for two months but became complete blind during this treatment opposite party no. 4 blamed opposite party nos. 1, 2 and 3 for wrong treatment of operation.

Even opposite party no. 5 also declared her complete blind after examining eyes.

Hence due to wrong negligent treatment of opposite party nos. 2, 3 and 4 and operation by opposite party no. 1 complainant is completely blind and lost her right eye which was quite O.K.

Opposite party nos. 2, 3 and 4 has charged good amount for fee, medicine etc. and opposite party no. 1 has also charged huge amount for operation of left eye. Opposite party no. 1 has filed written statement and rejoinder of same has been filed by the complainant.

Opposite party no. 3 has filed written statement opposite party no. 4 and 5 has not filed written statement of have not appeared in this case hence ex – parte. Two expart opinion are on record. On by opposite party no. 1 himself which was rejected. Second by three experts of AIIMS New Delhi, they have recommended D.L.C.P. 360 degree treatment for right eye and to try low vision aids for left eye, however complainant was not called upon by experts at AIIMS New Delhi for any examination etc.

3. Following assertions have been made by the Opposite Party No. 1 in his written statement :-

1. The patient Smt. Sumitra Devi, aged about 60 years was admitted on 08.03.2003, with history and complaint of gradual painless loss of vision in both eyes. The history disclosed loss of vision more in the left eye than the right one for the past five months.  The complainant came to the opposite party no. 1 for implantation of I.O.L. after having been found to be a case of complicated cataract.
2. On examination her vision was found to be 3/60 in the right eye and 1/60 in the left eye. The complainant had cataract in both the eyes. The cataract was more in the left eye than the right one and was found/ diagnosed to be a case of complicated of cataract, as submitted above.
3. On examination it was also confirmed that there were no cells in the anterior chamber or any other evidence of active uv - eitis in either eye. The intraocular  pressures were found to be within normal limits in both eyes.
4. On examination evidence of healed chorioretinitis patches in the fundus in both eyes was also found. On the basis of these evidence the patient was diagnosed as complicated cataract, in left eye more than the right one and was advised cataract surgery with guarded prognosis. The visual prognosis was poor in view of the chorioretinitis.
5. Uneventful phacoemulsification with intraocular lens implantation was undertaken on 11.03.2003 in the left eye only. At the time of discharge the patient was advised a particular course of treatment, medication and precaution etc. the patient was also advised to come for review/ follow up. The patient did not come for the review / follow up and admittedly got the treatment elsewhere and is now trying to shift on the blame on to others.
6. There is no evidence to suggest that the right eye is being affected due to the procedure or the surgery in the left eye. The patient had poor vision in both the eyes. Rather there is an admission that she was asked to come for follow up but she did not attended. It is pertinent to submit that the cost of lens was also not borne by the complainant.
7. The allegations with regards to the alleged negligence are totally false to the knowledge of the complainant and has been filed for ulterior motives and malafide intentions.

4. Following assertions have been made by the Complainant in her Rejoinder to the written statement of the Opposite Party No. 1:-

1. The reply filed on behalf of respondent no. 1 is not worth consideration as same neither been affidavited nor certified at Patna, and same is not in proper format.
2. The reply is full of incorrect and misconceived facts.
3. The preliminary objection raised by respondent no. 1 is misconceived, misplaced however on the other hand respondent no. 1 admits that petitioner was treated by him at New Delhi.
4. The statement made in Para - 2 is incorrect, this consumer Court has all the power and jurisdiction to hear and decide this case as per Consumer Protection Act.
5. The statement made in Para - 3 of reply is misplaced incorrect and vague.
6. The statement made Para – 4 of reply is incorrect and misplaced, since it is admitted that petitioner has been treated by respondent no. 1 and thereafter became complete blind there no much relevance of any document however in the last two Paragraphs the respondent no. 1 has challenged this Court for issuance of notice to him such wild statement is itself proof of behaviour & mental status of respondent no. 1.
7. The statement made Para – 5 of reply is incorrect and false.
8. The statement made in Para – 1 of page 4 of reply is admission by respondent no. 1 of all allegations levelled by petitioner against him however petitioner a rustic lady is unable to understand the medical terminology used by respondent no. 1 with a purpose to deviate the issue.
9. The statement made in last Para of page – 3 of reply is incorrect respondent no. 1 cannot be judge of his own misdeeds.
10. The statement made in Para – 2 of page – 4 of reply is admission of case of petitioner by respondent no. 1 however the some of the Doctor has correctly diagnosed and treated the petitioner and respondent no. 1 never disclosed about her ailment on any earlier occasion.
11. The statement made in Para – 3, 4 of page – 4 is admission of case and treatment by respondent no. 1 however petitioner was never informed earlier by respondent no. 1 about her ailment in any eye, only treatment was given to her.
12. The statement in Para – 5 of page – 5 is proof & admission by respondent no. 1 of his action and inaction causing blindness to petitioner, however petitioner has consulted him after one month at New Delhi.
13. The statement made in Para – 6 of page – 5 is vague & misconceived and part statement is incorrect, with a purpose to shift the wrong on the shoulder of petitioner.
14. The statement made in Para – 7 of page – 5 is incorrect and wild.
15. The facts stated above it is evident that case of petitioner is genuine allegations are true and admitted by respondent no. 1 and petitioner is entitled for claimed compensation against respondents.
16. It is stated and submitted that petitioner has now become blind due to wrong treatment by respondent no. 1 and she is living in a very miserable condition fully dependent on other persons even for the urge of call of nature in daily life.
17. The petitioner is a very poor lady of very limited manner dependent on her daughter and son in law who look after her in this ripe age.

5. Following assertions have been made by the Opposite Party No. 5 in his written statement :-

1. The above complaint case not maintainable against the opposite party no. 5 because the allegation alleged by the complainant goes against the opposite party nos. 1, 2, 3 and 4.
2. The grievance of the complainant is that in course of treatment of eye disease, the eye of the complainant was operated by the Doctor, but she could not get relief, she became blind.
3. Being aggrieved by and dissatisfied with the treatment of her eye the complainant preferred to file the above case of getting compensation amount of Rs. 15,00,000/-.
4. From perusal of the complaint petition filed by the complainant it is crystal clear that opposite party no. 5 is quite innocent and has committed no offence at all and his name has quite falsely been implicated in this case only on suspicion.
5. Last but four Para of the complaint petition makes it clear that the opposite party no. 5 has seen the eye of the complainant and told that light of the eye had gone out. This is the only matter which links the opposite party no. 5 but no grievance whatsoever has been made against the opposite party no. 5 by the complainant making opposite party no. 5 liable to be free from the charges leveled by the complainant against other opposite parties.
6. From the fact and circumstances enumerated above it is crystal clear that the opposite party no. 5 has no hand in causing blindness to the complainant and even the complainant has not implicated the opposite party no. 5 with any charge of causing blindness and therefore, under the circumstances the opposite party no. 5 deserves to be expunged from the above case.

Vide order dated 14.02.2007 this forum had called for an expert report from Dr. Rajendra Prasad centre for Ophthalmic Science on the basis of the prescription and other relevant papers available on the record.

The report called for was received in this forum vide letter No. F5-26/203/RPC dated 13 June 2007 from Dr. Rajendra Prasad centre for Ophthalmic Science, New Delhi.

The complainant filed Objection Petition against that report alleging therein that the report itself is submitted by Opposite party No. 1 ( Dr. S.P.Garg ) and therefore it was pleaded on her behalf of the complainant that it is against the Natural Justice and accordingly it was prayed that it be rejected.

Accordingly forum vide order dated 14.05.2009 called for a fresh report from Dr. Rajendra Prasad centre for Ophthalmic Science and same was received here on 23.03.2010 under letter No. F5-26/203-RPC dated 17.03.2010 in which the expert committee has opined as follows :

“ ****The case was examined by the Medical Board on 2^nd February at Dr. Rajendra Prasad Centre for Ophthalmic Science, AIIMS, New Delhi. On examination, her RE vision was PL ( perception of light ) absent and LE PL was persent with inaccurate projection of light. Anterior segment examination of RE showed corneal oedema, fixed pupil and total cataract LE was Pseudophakos with a well centred intraocular Lens ( IOL ) with clear cornea. Yag Capsulotomy had also been done. IOP and RE 60mm Hg and LE 10mm Hg tested on Non Contact Tonometre. Posterior segment evaluation shown RE media hazy, disc and retinal vessels sean hazily, Patchy retinal pigment Epithelium ( RPE ) atrophy was present. LE fundus showed sclerosis of blood vessels, Grayish reflex at macula, severally degenerated tessellated fundus. Flash visual evoked response (VER ) showed extinguished responses in both eyes. The final diogonisis RE absolute glaucoma with absent PL and LE Pseudophakos with disc pallor and chorio – retinal atrophy was made.

As far as LE is concerned, the treatment at various hospitals was as per the slandered care. It is evident from the records that LE poor visual recovery could be explained on the basis pre existing disc pallor and chorio retinal degeneration. The loss of vision and RE can be explained in view of persistence high pressure ( IOP ) despite antiglaucoma medications, apart from advance cataract which was not operated, as patient refused to undergo surgery. The expert committee has advised Diod Lessor Cylo photocolgulation ( DLCP ) 360 degree for RE and low vision aids could be tried for the LE ”.

During the course of hearing the complainant filed on 19.01.2015 a petition stating therein that she is poor widow and cannot afford the expenditure for the treatment of her eye and therefore she has made request that expenditure on her treatment at Dr. Rajendra Prasad centre for Ophthalmic Science All India Institute of Medical and Science (AIIMS) be borne by the Government and also pass order for waiving the travel expenses.

We have gone through the record and heard the complainant’s lawyer patiently and in detail as none was present on behalf of the opposite party at the time of hearing.

Since the medical report submitted by the Dr. Rajendra Prasad centre for Ophthalmic Science and AIIMS, New Delhi has not pointed out any deficiency on the part of the opposite parties and accordingly we are of the opinion that complainant’s claim for compensation against the opposite parties not tenable and accordingly this case stands dismissed.

As regards to the petition dated 19.01.2015 of the complainant we are of opinion that this forum has no jurisdiction to pass any order in this regard. However in our opinion matter deserves sympathetic consideration and for that the complainant is at liberty to approach the competent authorities of the State Government / Union Government for grant of relief as pointed out in the petition.

                                        Member                                                         President