Marina Shopping Centre,

National Highway, Taliparamba,

Kannur District

(Rep. by Adv. P. Mahamood)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay a sum of ` 3,00,000 as compensation.

          The brief case of the complainant are as follows :  Complainant is a granite quarry worker.  On 15.01.2007 while doing work a piece of granite stone was happened to pierced into his eye ball. Complainant was taken to opposite party.  Opposite party offered best available treatment. The opposite party dressed the wound without removing the stone and advised him to take rest and to get review after 3 days.  Some medicines were also prescribed for him.  But pain and sufferings remained unchanged.  It became worse in the night and he was taken to Pariyaram Medical College and it was found some foreign body inside the eye.   It was ascertained by the scanning report and the size of foreign body was 4x4x3 cms in the right eye.  So he was referred to Aravind eye hospital, Coimbatore for an emergent operation.  By that time the injury was effected since the foreign body was not removed at the first instance.  So it was advised to remove the right eye, or otherwise the life itself would be in danger.  Thus right eye was removed from Aravind Eye Hospital.  Opposite party is liable for all these because of the delay caused in identifying the forcing body in the eye and providing defective treatment.  If the opposite party had done it with reasonable care and caution all these expenses met by the complainant could have been avoided.  On 19.03.2007 legal notice was sent, but opposite party did not take care to pay compensation.  But opposite party did not pay the amount.  Hence this complaint.

          Pursuant to the notice opposite party entered appearance and filed version denying the main contention of complainant.  The contentions of opposite party in brief are as follows.  The complainant consulted this opposite party on 15.01.2007 in the evening since he has sustained injury to his right eye with stone.  On examination there was corneal injury.  So the patient was advised to go to a higher centre for a scan to rule out the presence of any foreign body.   The patient requested opposite party to give some first aid treatment since he suffered pain in eye. He informed the opposite party that he would go to Pariyaram Medical College after informing his relatives.  Hence on humanitarian consideration offered him first aid by putting him on local antibiotics, analgesics and pad and bandage.  The pressure and exact location of a foreign body within the eyes had to be confirmed by doing a CT Scan. The patient was well informed of the fact that the possibility of an intra ocular stone can be confirmed only by doing a CT scan.  The complainant was informed that if there was a foreign body it would have to be removed from the higher centre itself. He was also informed that removal of stone is possible only at a higher centre.   It was not possible to remove it in a clinic.  The treatment offered by the opposite party in the form of local antibiotics and analgesics was only to prevent infection and reduce pain to injured corner.  There was no hardship due to any negligence or deficiency of service on the part of opposite party.  The complainant is frivolous and vexatious.

          On the above pleading 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 for relief as prayed for?

3.         Relief and cost?

The evidence consists of oral testimony of PW1, DW1 and Ext.A1       to A7.

Issues No.1 to 3:

          It is an admitted fact that the complainant consulted with ophthalmologist working in Taliparamba due to accidental injury with the stone to his right eye.  The case of the complainant is that the opposite party dressed the wound without removing the stone and advised him to take rest and to get review after 3 days.  Some medicines also prescribed.  But pain and sufferings remained unchanged and when it became intolerable he was taken to Pariyaram Medical College and therefrom it was ascertained by scanning that there was some foreign body inside the eye.  So he was referred to Aravind Hospital, Coimbatore for an emergent operation.  By the time the injury was effected since the foreign body was not removed at the first instance.  Hence it resulted in removing the right eye.  Opposite party is liable for all these because of the delay caused in identifying the foreign body in the eye and providing defective treatment.

          On the other hand opposite party contended that on examination there was corneal injury.  Patient was advised to go to a higher centre for a CT scan to rule out the presence of any foreign body.   Complainant requested opposite party to give some first aid treatment since he has suffered pain in eye.  Hence on humanitarian consideration offered him first aid by putting him on local antibiotics, analgesics and pad and bandage.  The presence and exact location of  a foreign body within the eye had to be confirmed by doing a CT scan.  A CT scan facility is not available in the clinic.   So he was advised to go to a higher centre.  Moreover even if the presence of a stone is confirmed it cannot be removed from a clinic. The allegation that his right eye was operated and removed because the injury had become infected since the stone was not removed by the opposite party at the first instance itself is false.  It was not possible to remove the foreign body in the eye from the clinic.  The treatment offered by opposite party was only to prevent infection and reduce the pain to the injured cornea.

          Complainant adduced evidence by way of chief affidavit in tune with his pleadings.  Ext.A1 is the prescription given by opposite party which shows the complainant was attended by him on 15.01.2007.  Complainant was cross examined elaborately.  He has deposed that he reached in the clinic of opposite party in the evening on 15.01.07 with the injury in his right eye and opposite party examined him.  He has also deposed that opposite party did not suggest to go to M.C. Pariyaram so as to ascertain whether there is any foreign body in the eye.  Opposite party did not advise to take C.T. scan. DW1 denied the suggestion that the treatment offered by the opposite party was first aid only.   He deposed that it is not correct to say that prescription of medicine and bandage of eye was only a first aid.  Ext.A5 dated 19.03.2007 is the legal notice send by the complainant.  It was specifically alleged in the notice that immediately after the accident the complainant was taken to him and explained the cause of injury. Thereafter opposite party had dressed the injury even without removing the stone and advised to take review after three days some medicines were also prescribed.  It is specifically alleged that thereafter complainant was sent to his house by him. The notice continued to state all main allegations stated in the complaints.   The facts of taking the patient to Pariyaram Medical College due to intolerable pain and sufferings, diagnosis after scanning and referring him to Aravind Eye Hospital, wherefrom he had been under went emergent operation and subjected to removal of his eye etc were deposed by him. It was further alleged that complainant approached such a reputed practicing ophthalmologist with a computerized eye testing clinic believing he should get skilled treatment expected from him.

Ext.A6 is the reply sent by opposite party to the notice of complainant, Ext.A5.  What he has replied is that when the patient was gone to him with the injury he could not find any signs of intra ocular foreign body.  Then he has stated thus :  “I used to tell such patients to come immediately if the pain increases.  Since the patient did not turned up then there is no negligence on my part.”  It can be seen that opposite party has taken the contention that on examination that there was no corneal injury. Patient was advised to go to a higher centre for a scan to rule out the presence of any foreign body.  The patient requested the opposite party to give some first aid treatment since the eye was painful.  The first response of the opposite party towards the complainant’s case is Ext.A6 wherein he has stated “ I used to tell such patients to come immediately if the pain increases.  Since the patient did not turn up, there is no negligence.”  So naturally opposite party might have told to complainant to return to him in case pain increases.  Opposite party did not mentioned of CT scan or else anything that of his advise to go to a higher centre.  So it is very well be concluded that the case of the opposite party before the filing of complaint was totally different from that of the case after filing the complaint.  Ext.A6 if believed one cannot say that opposite party had advised the complainant to go to a higher centre.  Ext.A1 prescription does not speak of any such advise.  It does not even mentioned about the necessity of taking scan.  Neither Ext.A1 or Ext.A6 do give any indication that opposite party has attempted to ascertain that the injury sustained by the complainant was free from foreign body.  So also it is not at all possible to assume that complaint was advised by the opposite party to go to higher centre.  No such indication even in the prescription.

Complainant was a granite quarry worker and he had sustained injury during his employment.  Hence it can be naturally assumed that injury might have sustained due to entry of piece of stone into the eye ball.  As an ophthalmic surgeon opposite party should have vigilant to instruct complainant with respect to the necessity of making ascertain that there is no foreign body in his eye.  Opposite party has contended that he has no facility in his clinic for CT scan.  But it is pertinent to note that Ext.A5 has alleged that the opposite party is having a computerized eye testing clinic.  Opposite party did not say anything about computerized testing in his reply.  It is important to note the deposition of DW1 that “A6 foreign bodybpf-f-Xnsâ e£Ww ImWp-¶nà F¶p ]d-ªXv icn-bm-Wv.  Statement and affidavit ]n¶oSv h¡o-ens\ I­-Xn\p tijw sImSp-¯-Xm-Wv.”  That means the mode of contention afterwards found changed.  Absence of expected skill at the primary stage is quite evident from the available evidence, especially Ext.A6 reply of the opposite party and Ext.A1 prescription. Complainant has no case in Ext.A6 that he had advised complainant to go to higher centre.  The only contention that he had taken was that the complainant did not come back again.  So he had been expecting the complainant to come back if any complication arose.  If he has advised him to go to higher centre there is no question of coming back on complication.  As per Ext.A6 it was expected that the patient would come back opposite party in case severe pain developed.  As per version and affidavit it can be seen that the case of the opposite party is that he had advised the complainant to go to higher centre for a scan to rule out the presence of any foreign body.  If that be so what is the scope coming back of the complainant in case of increasing of pain or even otherwise in this case.  Hence it is quite evident that the opposite party hasn’t brought to his task a reasonable degree of skill and failed to exercise a reasonable degree of care.  The opposite party had not been alert to the hazards and risks in the professional task involved in the case in hand.  The reply of opposite party that since the patient didn’t turn up there is no negligence on his part is absolutely baseless because the case in hand is one admittedly the operation had not been possible from his clinic, in case piece of stone remained in the eye. He has not mentioned anything in Ext.A1 regarding what all attempts had been done to make assure or rule out the presence of foreign body in the eye.  Nothing had been done by the opposite party whereby his conduct fell below that of the standards of reasonably competent practitioner in his field.

However, complainant admitted in Pariyaram Medical College on 16.01.2007 with a diagnosis of ‘penetrating injury’.  Ext.A2 CT scan report reveals that there was foreign body in his eye.  But it is seen he was discharged on 17.01.2007 recording in Ext.A3 discharge card that patient wants to go to higher centre for further management.  Complainant’s case is that the presence of foreign body was ascertained so he was referred to Aravind Eye Hospital.  That means the contention of complainant is that Pariyaram Medical College referred him to AE Hospital and not on his request.  It is not clear why Pariyaram Medical College referred the matter.  There is no details to know what was the huddle for Pariyaram Medical College to continue the treatment there itself.  The only document available with respect to the reference is Ext.A3.  As per Ext.A3 reference was done on the request of complainant.  Since it is a medical college such facilities would have been available there in ordinary course to conduct operation.  This is a very relevant point requires explanation so as to ascertain possibility of operation then and there.  Complainant should have been explained with clarity.  Evidently Ext.A2 & A3 shows apart from the penetrating injury and the presence of foreign body there was no other danger which indicates the necessity of removal of the eye at that point of time when he was referred.  Ext.A2/CT scan report which had taken immediately after the admission of complainant in Pariyaram Medical College has shown except the presence of foreign body, eye ball and orbital wall was normal.  If that be so, non-availing of treatment facility from the Pariyaram Medical College can only be considered as crucial.  However when the patient was admitted in Pariyaram Medical College the condition of eye of the complainant was not so much worse due to delay which necessitate to think of removal of eye, as per the available documents.  What is the real position when he received to Pariyaram Medical College has to be taken into account most material to fix the deficiency in service with respect to the event.  He was discharged on 17.01.2007.  The documents available from the Pariyaram Medical College reveals that the treatment offered by opposite party to prevent infection was successful.  If it is infected thereafter, it is not justifiable to fix deficiency in service until and unless it has been proved beyond doubt that the complainant’s injured eye would have been removed even if he had been continued treatment in Pariyaram Medical College.  It has to be taken into account that the complainant obtained discharge at his will.  Hence we are of considered opinion that deficiency in service as far as removal of eye is concerned cannot be attributed on opposite party.   But at the same time deficiency of service on his part in giving proper advise to make ascertain that the injury sustained by the complainant was free from the foreign body, cannot be ignored while accepting the fact that the complainants had been admitted in Pariyaram Medical College before affecting infection to his eye.  We have no hesitation to say that this aspect has to be taken into account in measuring the degree of deficiency in service.

Taking into consideration the facts and circumstance of case, we are of considered opinion that there is negligence on the part of opposite party to the extent as explained above in discharging his primary obligation and we think an amount of ` 50,000 as compensation will meet the end of justice.  Hence issues 1 to 3 are found partly in favour of complainant.  Order passed accordingly.

In the result, complaint is partly allowed directing the opposite party to pay an amount of ` 50,000 (Rupees Fifty Thousand only) as compensation together with an amount of ` 1000 (Rupees One Thousand only) as cost of this proceedings within one month from the date of this order failing which complainant is entitled for interest at the rate of 12% from the date of filing the case till realization.  Complainant is at liberty to execute the order at the laps of 30 days as per the provisions of Consumer Protection Act.

    Sd/-                    Sd/-                     Sd/-

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Prescription.

A2. CT scan report.

A3. Discharge card from Pariyaram Medical College.

A4. Discharge card from Aravind Eye Hospital.

A5. Lawyer notice.

A5(a)  Postal receipt.

A5(b) Acknowledgment card.

A6.  Reply by opposite party.

A7.  Medical report from Aravind Eye Hospital.

Exhibits for the opposite party

Nil

Witness examined for the complainant

PW1.  Complainant

Witness examined for opposite party

DW1.  Dr. C. Vijayakumar.

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT