This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to pay an amount of  `6,60,000  as compensation.

          The case of the complainant in brief is as follows: The complainant approached opposite party in his clinic at Varam since he had problem of vision. He was examined and advised that his right eye developed cataract hence need to conduct operation. On close examination opposite party told that complainant is having 35% vision and if operation is conducted he would get 70% vision. Opposite party assured that within 2 days after operation complainant would gain full vision. But after two days of operation complainant understood that he had lost the sight of his right eye totally. Since complainant suffered pus and pain in his right eye he went to Vasan Eye care. After examination he was advised to Vasan Eye Care Ernakulum for further detailed examination. Complainant went Ernakulum and after examination it was found pus inside his eye. Then different tests were conducted and finally underwent operation for removing pus and to gain vision. But he could not regain his sight. Complainant was having 35% vision before starting the treatment and operation conducted by the opposite party. But after treatment he lost his total vision due to the negligence on the part of opposite party He spend about `1,60,000 for the treatment taken from Vasan Eye care and an amount of `60,000 for the treatment under opposite party. He had been working as a school Bus driver for his lively hood. Since he lost his vision he is not able to do his work as driver. Hence this complaint.

                    Pursuant to the notice opposite party entered appearance and filed version denying the main allegations of complainant. He contended that complainant was having cataract and advised operation after explaining the possible complications and outcomes during an operation. The allegation of the complainant that he had 35% vision and this opposite party assured 70% of vision after surgery. It is not possible to give assurance of 100% success. Success depends upon so many factors beyond the control of a doctor even if he exercise his skill, knowledge and experience. Complainant’s cataract was a matured one and normal vision could not be guaranteed. Complainant had only 6/60 vision with glass when he met opposite party. It is utter false that after two days the complainant lost his vision completely. The alleged pain and pus or purulent discharge is not due to any negligence in conducting the surgery. There was no such complication when complainant met the opposite party. He was given specific direction to sue medicines and to keep hygienity and advised not to sue liquor, beetle chewing, smoking etc. He never contacted this opposite party for the follow up treatment. Therefore opposite party was not aware of the progress of vision. If pain and pus occurred it can be cured by applying medicines. But without consulting opposite party he went to another hospital and undergone surgeries and treatments. Deficiency is alleged against opposite party without any basis. Complainant has not produced treatment documents from Vasan Eye care and opposite party has not received `60,000 towards consultation and surgery.  This opposite party altogether received only `5,000.When he met the opposite party for the limit time the complainant is having only 6/60 vision with glass. That glass was purchased by him just 2 or 3 months prior to the check up on 24.10.09. At that time there was no target as per the auto refracts meter check up and he was having senile immature cataract and was advised cataract surgery. But he was willing for the same. Even though he was advised to come for check up for each month for three months he came only on 17.04.2010. By that time the cataract was almost matured and there was no target on check up by auto refracts meter. He expressed his willingness for an operation thereafter. He was explained in details the possible consequences and expected results and inherent risk factor. He was also advised to control his diabetic problem and other thing by consulting a physician and to come as a fit person for surgery. He was given necessary pre-operation medication along with extra medication to reduce intra ocular pressure and all possible precautions were taken to reduce the expected post operative complications. The cataract surgery was uneventful and he came up for check up on the next day 22.04.10. Except the usual pain that may cause soon after the surgery there was no complaint with respect to the alleged pus or purulent discharge or loss of vision at that time. He was given medicines and advised to come to Ashoka Hospital on 26.04.2010 for evaluating the developments. But there after complainant never came to this opposite party as advised. The allegations of complainant with respect to expenses are false. The complainant is not in the habit of following the instructions of doctors. He is changing the treatment from one to another without completing any of the methods. There is no negligence and deficiency of service on the part of this opposite party. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency in service on the part of  opposite   party?

2.     Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost?

The evidence consists of the oral evidence of PW1, DW1 Exts.A1 to A10. No documents marked on the side of opposite party.

Issue Nos.1 to 3

          Admittedly complainant approached opposite party for conducting surgery to his right eye. The surgery was conducted by opposite party/doctor on 21.04.10. The complainant’s case is that because of the negligence of the opposite party the vision of his right eye has been lost and he suffered great pain and suffering meeting huge expense for the treatment of opposite party and further treatment by Vasan eye care. He has also lost his income as a driver. Denying the allegation of complainant opposite party contended that he had conducted surgery by applying his skills and experiences and performed the same with precision. The surgery was conducted by explaining everything in details, guarded prognosis of the condition, its complication, inherent risk factors and expected result with written consent from the complainant.

          Complainant filed affidavit evidence intone with his pleadings and Ext.A1 to A10 marked on his side. Complainant alleged that he had 35% of vision before surgery and was assured 70% of vision after surgery. Opposite party contended that he had not given any such assurance and it is not true that complaint had 35% of vision. He had only 6/60 vision with glass when the complainant approached the opposite party. Opposite party has also case that the glass was purchased just 2-3 months prior to the check up on 24.10.2009. Ext.A3prescription reveals that complainant had approached opposite party for check up on 24.10.2009. It shows vision recorded as 6/60. But complainant denied the same in affidavit evidence. The evidence adduced by complainant does not show anywhere that her vision was 35% when opposite party examined the complainant. So also there is no evidence to show that opposite party has assured complainant that he would get 70% vision after surgery. No question put to witness DW1/opposite party with respect to the said 35% vision or assurance of getting 70% of vision after surgery. The vision was recorded in Ext.A3 after check up on 24.10.2009. Operation was done only on 21.04.2010. The vision recorded in Ext.A3 is 6/60 for right eye and 6/24 for left eye. Hence it not possible to believe that the complainant had 35% of vision before surgery and opposite party assured him that he would get 70% vision after conducting the surery.Ext.A3 is a prescription given much before conducting the operation.

The cataract operation for the right eye of the complainant was conducted on 21.04.2010.Complainant alleges that opposite party assured him after the operation he would get full vision within two days. Opposite party on the other hand contended that there is no iota of truth in it and he never gave any such assurance that the complainant would get complete vision after two days the complainant had lot his vision completely after two days of the operation.

          Complainant was under opposite party’s treatment up to 25.04.2010 as per Ext.A5. Ext.A1 and A2 shows that from 11.05.2010 to 22.05.2010 he was under the treatment of Dr.B.V.Bhat Ashoka Hospital. Ext.A5 prescription goes to show that complainant was advised on25.04.2010 to come on 26.04.2010 for evaluation. But the available documents reveal that complainant had not visited opposite party/Doctor. As per document it is seen he had met Dr. Bhat on 11.05.2010. Ext.A1 is the prescription given by Dr.Bhat wherein it is seen recorded vision 3/60.Ext.A1 & A2shows that he was under treatment of Dr.Bhat up to 24.02.2010. The prescription given by Dr.Bhat also contain advise to take same medicines viz. omnacoril, Alphagan, Oecpred, Diamox etc. prescribed by opposite party/Doctor. These prescriptions does not show any mention about pus or purulent discharge. Nothing is seen recorded in A1 & A2 that complainant had affected infection. Both in complaint and in affidavit evidence complaint did not explained about the treatment of Dr.Bhat.  Since there is allegation of infection there is very much importance to the immediate and continuous treatment. Ext.A1 & A2 are the available documents with respect to the immediate treatment after the departure of complainant from opposite party. These two documents of treatment for more than 10 days do not show anything regarding infection or puss and purulent discharge. Operation was conducted on 21.04.2010, almost one month before Dr.B.V.Bhat is the chief ophthalmic surgeon of Ashoka Hospital, If there was pus or purulent discharge, such a complication should have been noted in the prescription with advise of connected medicaments. But complainant has no case that he had prescribed any medicine for infection by Dr.Bhat. In cross examination complainant had admitted that he has taken treatment of Dr.Bhat, Dr.Umesh and of Dr.Abbas. Ext.A1 & A2 prescribed by Dr.Bhat no other details are available before us. He has also deposed in cross examination that Dr.Hussain Abbas told him that he lost his vision due to the negligence in the treatment of opposite party/doctor. But it is important to note that nothing has been mentioned about this important information neither in the complaint nor in the affidavit evidence by the complainant. He has further deposed that he is ready to examine Dr.Hussain Abbas in order to prove that he had lost his vision due to the negligence in suturing done by the opposite party. But he did not take any steps to examine Dr.Abbas. Ext.A2 goes to show that it is recorded by Dr.Bhat that ‘sutures intact’ on 22.05.2010, which is exactly one month after the operation. If sutures are intact even after one month it is not possible to come to a conclusion that the complication aroused due to the negligence of suturing done by the opposite party.

The major treatment after the surgery of opposite party had been seen taken from Vasan Eye care, Kannur and Ernakulum. But complainant did not produce those documents of treatment from Vasan Eye care.Ext.A7 is the medical certificate issued by Dr.Cheriyan Shane Mathew, Vsan Eye Care. This certificate does not give any clue with respect to the negligence of previous treatment and operation. If the evidence of medical experts who treated complainant had been examined and records of their treatment made available  there should have been much more  clarity so as to have an analysis with respect to the possible negligence on the part of opposite party. It is seen that complainant had taken major treatment from Vasan Eye care and underwent operations. But this alone does not prove that it is due to the result of negligence of opposite party’s treatment. The evidence of treated doctors and treatment records are highly essential to prove the negligence of opposite party. Dr.Hussain Abbas who is said to be opined that the complainant lost his vision due to the negligence in the suturing done by the opposite party also had not been examined to bring forth those facts on the file. In Toto the complainant does not explain the way in which it is possible to come into a conclusion that there is negligence on the part of opposite party even though it is evident  that complainant had suffered much and undergone  important treatment including operations. Missing of important treatment records and non-examination of experts or treated doctors further weakened the case of the complainant. Without an expert opinion it is not possible to ascertain the alleged negligence or deficiency in service on the part of opposite party as far as this case is concerned.

In the light of above discussion we are of opinion that complainant is miserably failed to establish his case by proving negligence on the part of opposite party presenting reliable cogent evidence. Hence the issues 1 to 3 are found against complainant.

          In the result, the complaint is dismissed without cost.

                Sd/-                      Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1 & A2.  Prescription issued from Ashoka Hospital, Kannur

               dt.115.10 & 22.5.10

A3 to A5. Prescription issued by OP.

A6.          Medical prescription issued from Vasan Eye care

A7.          Medical certificate issued by Dr.Cheriyan Shane

               Mathew

A8.         Copy of the reference letter issued by Dr.Shane

               Mathew   Oonnukallil to Dental surgeon

A9.         Lab reports issued from Vasan Eye care

A10.      Cash bills issued from Ashoka Hospital, Vasan Eye

              care etc.

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.        Complainant

Witness examined for the opposite parties:

DW1.       Dr.Vijil C.H.

     /forwarded by order/

              Senior Superintendent

Consumer Disputes  Redressal Forum, Kannur.