KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.268/06 JUDGMENT DATED : 2/7/09 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER K.Kesavan, S/o.Krishnan Mannankattupura, Suryanagar, Manjikode, Palakad. : APPELLANT (By Adv.Rajesh Nambiar) Vs Dr.Rajagopalan Nair, Raj Bhavan, Kunnathurmedu, : RESPONDENT Palakkad. (By Adv.Sajeevu Mathew) JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Palakkad in the file No. CC 2/04 dated 31/1/06. The appellant is the complainant in the above said CC. 2. The brief of the case is that on 10/8/03 in the course of the complainant’s employment of retreading tyre, dust particles entered his eyes. As he felt pain continuing in the night he consulted opposite party on the next day. The opposite party after examination prescribed medicines which on application only increased the pain for 2 weeks, the opposite party was consulted and he only changed medicines which on usage did not show any respite in the pain and condition of the eye. On 30/8/03 the complainant consulted Doctor in Aravind Eye Hospital, Coimbatore who after examination directed him to stop using the medicines prescribed by opposite party. The doctor also opined that the condition got worse as the foreign particle was not removed from the eye. Though the foreign particle was removed, the condition had deteriorated resulting in operation for evisceration of the right eye so as to prevent the infection spreading to the other eye. The complainant lost his right eye only due to the negligence of the opposite party. The opposite party though was given his fees, only experimented on him by prescribing different drugs on each occasions instead of referring him for expert treatment. The complainant who is a head load worker and is the only bread winner of his family and due to loss of one eye, his avocation has been adversely affected besides causing facial distortion. Though notice was sent to the opposite party demanding compensation for the acts enumerated above, the opposite party only sent reply setting forth untrue claims. Hence the prayer directing opposite parties to pay Rs.3 lakhs as compensation. 3. The opposite party entered appearance and filed the detailed version. In the version he contended that the compliant is not maintainable. There is no negligence or deficiency in service on his part. According to the opposite party, the complainant was on 9/8/2003 as an out patient with complaints of pain over a period of one week. On examination was revealed a case of “almost total Hypopion corneal ulcer of right eye”. He was treated on Natament eye drops hourly, sparfloxacin (SCAT) eye drops four hourly. Atroren –PC (Atropine) for one week. Review of the complianant was on 11/8/03. He was advised to get admitted in a higher center but was not willing due to his poor financial condition and he requested continuation of treatment by opposite party himself. Hence the previous medicines together with additional medicines for reducing pain were continued. The complainant was reviewed on 15/8/03 and was advised Aminogen eye drops additionally. The complainant thereafter did not turn up for review. The ailment of the complainant must have stated on 9/8/03 or earlier and not on 10/8/03 as alleged. The misquoting of dates is only with a view to cover up the lapses of the complainant himself in seeking medical attention. No history of dust falling into eyes was said by the complainant to the opposite party at the first instance as alleged. After diagnosis, the complainant was given the standard and accepted treatment for his diagnosed condition. The allegation of the complainant that this opposite party was changing medicines every time when consulted and the complainant was made on experimental object is false. The opposite party had given an expert opinion initially and this opposite party had told the complainant about the seriousness of his illness and also had given the complainant the opportunity to take treatment at a higher center, but the complainant by his own choice had turned down. The allegation of the complainant that he is unable to do his work and earn money on account of loss of his eye is denied. The opposite party submits that the loss of an eye will not interfere with the capacity to do manual labour as in the case of complainant. Further submits that there is no negligence or carelessness and deficiency of service on the part of this opposite party as alleged. The amount claimed is highly exaggerated. Hence the prayer for dismissal of the complaint with compensatory costs of Rs.10,000/-. 4. For the part of the complainant he was examined as PW1 and expert doctor examined as PW2. The documents produced from this part and marked as Ext.A1 to A5. Ext.X1 is the case sheet of Aravind Eye Hospital, Coimbatore. It is marked as Court Ext. No oral or documentary evidence adduced by the opposite party apart from his version. The Forum below heard both sides and take a view that as specific case set up by the complainant is that on 9/8/03, foreign body entered his eye as a result of which he experienced pain and visisted opposite party on next day itself and the opposite party prescribed medicines without properly diagnosing the condition of the complainant which resulting in loss of his right eye. The case set up by opposite party is that the complainant was already suffering “almost total Hypopyon corneal ulcer” when he was examined at the 1st instance itself and that he would be suffering from the ailment long back itself and not from 9/8/2003. The opposite party had treated on the accepted conservative method and on 11/8/03 itself advised him to get admitted in a higher center. The complainant being in a poor financial condition insisted for treatment being continued. The finding of the Forum below that the complainant while being examined seemed to be groping in the dark regarding even the time when he was afflicted with the alleged condition in his eye. Under such a circumstance the Forum below were only to found that the complainant has not been able to prove the case that considering which was a result of a negligent treatment of the opposite party from the 1st instant case. The point is answered against the complainant and dismissed the complaint. 5. The complainant prefers this appeal from the above impugned dismissal order passed by the Forum below. This appeal came before this Commission for find hearing the Counsel for the appellant is present and there is no representation for the respondent/opposite party. The counsel for the appellant vehemently argued on the grounds of the appeal memorandum that the finding of the Forum below is not in accordance with law and evidence. It is illegal and irregular thereby set aside the order and praying to allow the complaint. 6. This Commission heard the counsel and perused the entire evidence adduced by the complainant from the case bundle. On the basic and Fundamental Principles of the medical negligence cases if any allegation of negligence and carelessness alleged against any member of the medical profession, it is the burden and duty of the doctor concerned to prove his innocence. In this case the respondent/ opposite party has not taken any steps to produce any document from his part and has not been ready to file his proof affidavit or to depose anything to support his version before the Forum below. That means he has taken this matter in a lame way. The Ext.A2, the prescription given by the opposite party shows that he directly and easily concluded that the patient was suffering from Hypopion Corneal ulcer on his right eye and he prescribed medicines to the patient. No evidence adduced by the opposite party that he had undertaken careful and reasonable re-examination of the patients eye through diluting the eye or taken X-ray or apply any other sophisticated diagnostic methods. The complainant hails from a poor family. He is totally illiterate. His assumption is that there is a foreign particle in his right eye. The opposite party is a specialized doctor in the field of Ophthalmology. He has taken his MS and DO in Ophthalmology and working as a Consultant Specialist in the Railway Hospital, Palakkad, He provided the treatment to the poor patient after he accepted sufficient fee from his pocket. It is his professional duty to provide adequate care to the patient/complainant. We are surprised that at present the doctors do not have any idea of the documentation. They are not keeping the copy of the prescription reference books or case sheets related with the treatment of patients in their custody. 7. The respondent failed to follow the guidelines given by the Hon. Supreme Court and the rules framed by the statutory authority like the Medical Council of India. 8. All the doctors begins their glorified profession after taking the Hypocrites oath. The doctors shall dedicate their life for the service of the mankind. The guidelines have been issued by the Indian medical Council and the Court on records in this regard, time to time. Here we are legally bound to give some relief to the poor patient/complainant and for his family. 9. The fact and circumstance of the reported case “Aleyamma Varghese Dewan Bahadur Dr.V.Varghese Dewan Bahadur Dr. V.Varghese etc (1996 (4) CTJ911) is different from the principle of medical negligence involved in this case. But in a similar case, the Hon. National Commission settled the deficiency of service in the medical negligence cases. In the reported case of Apollo Hospital Vs Vitta, Verra, Surya Prakasan and Ors (A No.284/04 CPJ 2007 page No.814. This case was decided on the basis of guidelines issued by the apex Court (Supreme Court) in Dr.Laxman Bala Krishna Joshi Vs.Dr.Trimba K Bapu Godbole and Another, (AIR 1969 SC 128 page 50). In this decision, the apex court of the country well settled the principle of deficiency in service in the field of treatment. The Supreme Court issued three guidelines; (a) that the doctor concerned exercised due care in leading whether is undertakes the case of the complainant. (b) that he exercised reasonable degree of care in deciding what treatment to be given to the complainant as per the established medical norms. (c) that the doctor exercised a duty of care in the administration of that treatment. 10. But unfortunately the respondent/opposite party doctor who neglected and violated the guild lines framed by both Supreme Court and the Medical Council of India. The doctors are bound to obey the rules of I.M.C. 11. There is sufficient evidence available in this case records showing that the doctor (opposite party) committed carelessness and negligence in the treatment of the complainant. The total loss of right eye of the patient is a deficiency of service committed by the doctor concerned. The Doctrine of Res Ipsa Loquiture means the Professional negligence of a physician must be proved in Court of law by the expert evidence of another expert witness. The patient need not prove negligence incase where the rule of Res Ipra Loquitur applies, which means “the thing or fact speaks for itself”. As per this rule the patient is not guilty for contributory negligence. Strictly speaking, this enables the patient to prove his case without medical evidence. This is a fit case to apply this principle. The doctor concerned contributed negligence and carelessness from his part. In other words the respondent/opposite party who committed deficiency in service in accordance with the provisions of the Consumer Protection Act. The order passed by the Forum below is not in accordance with the provisions of law and evidence. The Forum below directly jumped in to a wrong a conclusion that the doctor is innocent in this case. Especially in the absence of any piece of evidence both oral and documentary, from the part of the opposite party/ doctor, how the forum below dismissed the complaint?. We decide to interfere in the order passed by the Forum below in the absence of any supporting evidence adduced by the respondent/ opposite party. It is highly necessary for the interest of the justice. On the basis of the submission and hearing from the counsel of appellant/complainant and the available evidence in this case bundle, we are seeing some reason to interfere in the order passed by the Forum below. In the result this appeal is allowed and set aside the order passed by the Forum below. The order passed by the Forum below is not legally sustainable. The opposite party is directed to pay Rs.1,00,000/- as compensation for the deficiency in service committed by him and to pay cost Rs.10,000/- to the complainant as a cost within one month of receipt of this order. Otherwise, the complainant is entitled to get 12% interest on both the amount of compensation and cost from the date of the complaint. The registrar is directed to send the copy of the Judgment to the medical council of India for issue necessary directions to the members of the Council to introduce modern documentation system about their diagnosis and treatments. It is highly necessary for the interest of consumer patients. This appeal is disposed accordingly. The points are answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT VALSALA SARANGADHARAN: MEMBER Pk. KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.268/06 JUDGMENT DATED : 2/7/09 PRESENT:- JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.K.ABDULLA SONA : MEMBER K.Kesavan, S/o.Krishnan Mannankattupura, Suryanagar, Manjikode, Palakad. : APPELLANT (By Adv.Rajesh Nambiar) Vs Dr.Rajagopalan Nair, Raj Bhavan, Kunnathurmedu, : RESPONDENT Palakkad. (By Adv.Sajeevu Mathew) JUDGMENT SRI.M.K.ABDULLA SONA : MEMBER This appeal prefers from the order passed by the CDRF, Palakkad in the file No. CC 2/04 dated 31/1/06. The appellant is the complainant in the above said CC. 2. The brief of the case is that on 10/8/03 in the course of the complainant’s employment of retreading tyre, dust particles entered his eyes. As he felt pain continuing in the night he consulted opposite party on the next day. The opposite party after examination prescribed medicines which on application only increased the pain for 2 weeks, the opposite party was consulted and he only changed medicines which on usage did not show any respite in the pain and condition of the eye. On 30/8/03 the complainant consulted Doctor in Aravind Eye Hospital, Coimbatore who after examination directed him to stop using the medicines prescribed by opposite party. The doctor also opined that the condition got worse as the foreign particle was not removed from the eye. Though the foreign particle was removed, the condition had deteriorated resulting in operation for evisceration of the right eye so as to prevent the infection spreading to the other eye. The complainant lost his right eye only due to the negligence of the opposite party. The opposite party though was given his fees, only experimented on him by prescribing different drugs on each occasions instead of referring him for expert treatment. The complainant who is a head load worker and is the only bread winner of his family and due to loss of one eye, his avocation has been adversely affected besides causing facial distortion. Though notice was sent to the opposite party demanding compensation for the acts enumerated above, the opposite party only sent reply setting forth untrue claims. Hence the prayer directing opposite parties to pay Rs.3 lakhs as compensation. 3. The opposite party entered appearance and filed the detailed version. In the version he contended that the compliant is not maintainable. There is no negligence or deficiency in service on his part. According to the opposite party, the complainant was on 9/8/2003 as an out patient with complaints of pain over a period of one week. On examination was revealed a case of “almost total Hypopion corneal ulcer of right eye”. He was treated on Natament eye drops hourly, sparfloxacin (SCAT) eye drops four hourly. Atroren –PC (Atropine) for one week. Review of the complianant was on 11/8/03. He was advised to get admitted in a higher center but was not willing due to his poor financial condition and he requested continuation of treatment by opposite party himself. Hence the previous medicines together with additional medicines for reducing pain were continued. The complainant was reviewed on 15/8/03 and was advised Aminogen eye drops additionally. The complainant thereafter did not turn up for review. The ailment of the complainant must have stated on 9/8/03 or earlier and not on 10/8/03 as alleged. The misquoting of dates is only with a view to cover up the lapses of the complainant himself in seeking medical attention. No history of dust falling into eyes was said by the complainant to the opposite party at the first instance as alleged. After diagnosis, the complainant was given the standard and accepted treatment for his diagnosed condition. The allegation of the complainant that this opposite party was changing medicines every time when consulted and the complainant was made on experimental object is false. The opposite party had given an expert opinion initially and this opposite party had told the complainant about the seriousness of his illness and also had given the complainant the opportunity to take treatment at a higher center, but the complainant by his own choice had turned down. The allegation of the complainant that he is unable to do his work and earn money on account of loss of his eye is denied. The opposite party submits that the loss of an eye will not interfere with the capacity to do manual labour as in the case of complainant. Further submits that there is no negligence or carelessness and deficiency of service on the part of this opposite party as alleged. The amount claimed is highly exaggerated. Hence the prayer for dismissal of the complaint with compensatory costs of Rs.10,000/-. 4. For the part of the complainant he was examined as PW1 and expert doctor examined as PW2. The documents produced from this part and marked as Ext.A1 to A5. Ext.X1 is the case sheet of Aravind Eye Hospital, Coimbatore. It is marked as Court Ext. No oral or documentary evidence adduced by the opposite party apart from his version. The Forum below heard both sides and take a view that as specific case set up by the complainant is that on 9/8/03, foreign body entered his eye as a result of which he experienced pain and visisted opposite party on next day itself and the opposite party prescribed medicines without properly diagnosing the condition of the complainant which resulting in loss of his right eye. The case set up by opposite party is that the complainant was already suffering “almost total Hypopyon corneal ulcer” when he was examined at the 1st instance itself and that he would be suffering from the ailment long back itself and not from 9/8/2003. The opposite party had treated on the accepted conservative method and on 11/8/03 itself advised him to get admitted in a higher center. The complainant being in a poor financial condition insisted for treatment being continued. The finding of the Forum below that the complainant while being examined seemed to be groping in the dark regarding even the time when he was afflicted with the alleged condition in his eye. Under such a circumstance the Forum below were only to found that the complainant has not been able to prove the case that considering which was a result of a negligent treatment of the opposite party from the 1st instant case. The point is answered against the complainant and dismissed the complaint. 5. The complainant prefers this appeal from the above impugned dismissal order passed by the Forum below. This appeal came before this Commission for find hearing the Counsel for the appellant is present and there is no representation for the respondent/opposite party. The counsel for the appellant vehemently argued on the grounds of the appeal memorandum that the finding of the Forum below is not in accordance with law and evidence. It is illegal and irregular thereby set aside the order and praying to allow the complaint. 6. This Commission heard the counsel and perused the entire evidence adduced by the complainant from the case bundle. On the basic and Fundamental Principles of the medical negligence cases if any allegation of negligence and carelessness alleged against any member of the medical profession, it is the burden and duty of the doctor concerned to prove his innocence. In this case the respondent/ opposite party has not taken any steps to produce any document from his part and has not been ready to file his proof affidavit or to depose anything to support his version before the Forum below. That means he has taken this matter in a lame way. The Ext.A2, the prescription given by the opposite party shows that he directly and easily concluded that the patient was suffering from Hypopion Corneal ulcer on his right eye and he prescribed medicines to the patient. No evidence adduced by the opposite party that he had undertaken careful and reasonable re-examination of the patients eye through diluting the eye or taken X-ray or apply any other sophisticated diagnostic methods. The complainant hails from a poor family. He is totally illiterate. His assumption is that there is a foreign particle in his right eye. The opposite party is a specialized doctor in the field of Ophthalmology. He has taken his MS and DO in Ophthalmology and working as a Consultant Specialist in the Railway Hospital, Palakkad, He provided the treatment to the poor patient after he accepted sufficient fee from his pocket. It is his professional duty to provide adequate care to the patient/complainant. We are surprised that at present the doctors do not have any idea of the documentation. They are not keeping the copy of the prescription reference books or case sheets related with the treatment of patients in their custody. 7. The respondent failed to follow the guidelines given by the Hon. Supreme Court and the rules framed by the statutory authority like the Medical Council of India. 8. All the doctors begins their glorified profession after taking the Hypocrites oath. The doctors shall dedicate their life for the service of the mankind. The guidelines have been issued by the Indian medical Council and the Court on records in this regard, time to time. Here we are legally bound to give some relief to the poor patient/complainant and for his family. 9. The fact and circumstance of the reported case “Aleyamma Varghese Dewan Bahadur Dr.V.Varghese Dewan Bahadur Dr. V.Varghese etc (1996 (4) CTJ911) is different from the principle of medical negligence involved in this case. But in a similar case, the Hon. National Commission settled the deficiency of service in the medical negligence cases. In the reported case of Apollo Hospital Vs Vitta, Verra, Surya Prakasan and Ors (A No.284/04 CPJ 2007 page No.814. This case was decided on the basis of guidelines issued by the apex Court (Supreme Court) in Dr.Laxman Bala Krishna Joshi Vs.Dr.Trimba K Bapu Godbole and Another, (AIR 1969 SC 128 page 50). In this decision, the apex court of the country well settled the principle of deficiency in service in the field of treatment. The Supreme Court issued three guidelines; (a) that the doctor concerned exercised due care in leading whether is undertakes the case of the complainant. (b) that he exercised reasonable degree of care in deciding what treatment to be given to the complainant as per the established medical norms. (c) that the doctor exercised a duty of care in the administration of that treatment. 10. But unfortunately the respondent/opposite party doctor who neglected and violated the guild lines framed by both Supreme Court and the Medical Council of India. The doctors are bound to obey the rules of I.M.C. 11. There is sufficient evidence available in this case records showing that the doctor (opposite party) committed carelessness and negligence in the treatment of the complainant. The total loss of right eye of the patient is a deficiency of service committed by the doctor concerned. The Doctrine of Res Ipsa Loquiture means the Professional negligence of a physician must be proved in Court of law by the expert evidence of another expert witness. The patient need not prove negligence incase where the rule of Res Ipra Loquitur applies, which means “the thing or fact speaks for itself”. As per this rule the patient is not guilty for contributory negligence. Strictly speaking, this enables the patient to prove his case without medical evidence. This is a fit case to apply this principle. The doctor concerned contributed negligence and carelessness from his part. In other words the respondent/opposite party who committed deficiency in service in accordance with the provisions of the Consumer Protection Act. The order passed by the Forum below is not in accordance with the provisions of law and evidence. The Forum below directly jumped in to a wrong a conclusion that the doctor is innocent in this case. Especially in the absence of any piece of evidence both oral and documentary, from the part of the opposite party/ doctor, how the forum below dismissed the complaint?. We decide to interfere in the order passed by the Forum below in the absence of any supporting evidence adduced by the respondent/ opposite party. It is highly necessary for the interest of the justice. On the basis of the submission and hearing from the counsel of appellant/complainant and the available evidence in this case bundle, we are seeing some reason to interfere in the order passed by the Forum below. In the result this appeal is allowed and set aside the order passed by the Forum below. The order passed by the Forum below is not legally sustainable. The opposite party is directed to pay Rs.1,00,000/- as compensation for the deficiency in service committed by him and to pay cost Rs.10,000/- to the complainant as a cost within one month of receipt of this order. Otherwise, the complainant is entitled to get 12% interest on both the amount of compensation and cost from the date of the complaint. The registrar is directed to send the copy of the Judgment to the medical council of India for issue necessary directions to the members of the Council to introduce modern documentation system about their diagnosis and treatments. It is highly necessary for the interest of consumer patients. This appeal is disposed accordingly. The points are answered accordingly. M.K.ABDULLA SONA : MEMBER JUSTICE K.R.UDAYABHANU : PRESIDENT VALSALA SARANGADHARAN: MEMBER Pk.
......................JUSTICE SHRI.K.R.UDAYABHANU
......................SMT.VALSALA SARNGADHARAN
......................SRI.M.K.ABDULLA SONA | | 
