Karnataka

Kolar

CC/27/2015

Murali - Complainant(s)

Versus

Dr.Shankara Naik.K - Opp.Party(s)

K Narendra Babu

23 Jul 2016

ORDER

Date of Filing: 06/08/2015

Date of Order: 23/07/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 23^rd DAY OF JULY 2016

PRESENT

SRI. N.B. KULKARNI, B.Sc., LLB,(Spl.)    …….    PRESIDENT

SRI. R. CHOWDAPPA, B.A., LLB               ……..    MEMBER

SMT. A.C. LALITHA, BAL., LLB         ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 27 OF 2015

Murali, S/o. Sreemappa,

Aged About 21 Years,

Agrahara Somarasanahalli,

Chamarahalli Post,

Kolar Taluk.

 

(Rep. by Sriyuth. K.Narendrababu, Advocate)             ….  Complainant.

 

- V/s -

(1) Dr. Shankara Naik K,

Eye Doctor & Proprietor,

Shankar Eye Hospital,

G.T. Street, Cottonpet,

Kolar-563 101.

 

(2) Dr.Sreedhara S Naik,

Eye Doctor & Proprietor,

Shankar Eye Hospital,

G.T. Street, Cottonpet,

Kolar-563 101.

(OP Nos.1 & 2 are rep. by Sriyuths. K.R.Srinivasaiah

& K.S.Saikumar, advocates)                             …. Opposite Parties.

-: ORDER:-

BY SRI. N.B. KULKARNI, PRESIDENT

01.   The complainant having applied Under Section 12 of the Consumer Protection Act, 1986 has sought relief of recovery of Rs.20,00,000/- by way of compensation from the OP Nos.1 & 2 on the contention of medical negligence.

02.   The facts in brief:-

(a)    It is contention of the complainant that, as there was a red spot in his left eye on 05.12.2014 around 11.00 AM approached the Shankar Eye Clinic at Kolar run by these OP Nos.1 & 2.  And that these Ops having examined his left eye stated that, there was a formation of mass (Pterygium) in the left eye.  And that if neglected it was likely to extend so as to prevent the vision in the left eye.  And that himself and his father Ramappa who had accompanied him became panic on listening to the same.

 

(b)    Further it is contended that, himself, his father and his paternal uncle when asked these Ops they expressed that, it was better to get the said bad mass (Pterygium) removed by conducting the surgery for which they had the required facilities and expertize.  And also that, within a half an hour after the surgery, he (the complainant) could get back to home.  And that these Ops had also told that the expenses also would be very minimum. 

 

(c)    Further it is contended that, on enquiry these Ops told his father that, the expenses would be Rs.3,000/-.  On 05.12.2014 itself by 4.00 PM himself, his said father Ramappa and his said paternal uncle Shankarappa came to the hospital run by these Ops and paid Rs.3,000/-.  And that these Ops took him inside the operation theater.  And that at the time of conducting surgery by these Ops, Aaya (a female servant) and the receptionist at the counter participated (to be taken read as assistant).  It is also contended that prior to the surgery the OP-1 had injected him in the left eye.  And that within minutes he developed intolerable pain to the extent that, he felt as if the left eye was likely to come-off.  And that he yelled because of pain.  And that by 10 minutes thereafter the OP-1 gave another injection to the left eye.  And that within few minutes he became drowsy.  And that after operation to the left eye on the said day by 05.30 PM, after putting the bandage, he was brought out of the operation theater. 

 

(d)    Further it is contended that as emergency operation was conducted the expenses became more and hence still sum of Rs.6,000/- was bound to be paid.  And that accordingly his father gave Rs.6,000/- in cash to the OP.1.  And that after giving the medicine prescribed, these Ops told him to get back next day and thus discharged him on the said day by 06.00 O’clock in the evening. 

 

(e)    It is also contended that, on 06.12.2014 by 11.00 O’clock in the morning when he came to the hospital of the Ops being accompanied by his father, the bandage given on the left eye was opened and he was asked as to how was his vision.  And that for this he replied the Ops that, he could not see through the left eye.  And that again the Ops put the bandage on the left eye and asked him to come on 09.12.2014 by which time he was bound to regain vision in the left eye.  And that on 09.12.2014 when, being accompanied by his father came to the clinic of the Ops by 10.30 am and his bandage was opened.  And that he told the Ops that he could not see through the left eye.  And that the Ops gave prescribed medicine and asked him to come three days thereafter.

 

(f)     He has contended that, accordingly he made use of the said medicines till 17.12.2014.  He has also contended that, on being doubted about the treatment his father on 16.12.2014 had taken him to Narayana Eye Hospital, No.121/B, Chord Road, Rajajinagar, 1^st R Block, Bangalore.  And that he was told therein that, as injection had affected the nerve in the left eye it was completely damaged and there was no scope for regaining the vision in the left eye.  And that he was issued opinion letter accordingly.

 

(g)    Further he has contended that, being panicky he on 17.12.2014 came to the hospital of the Ops by 11.00 AM.  And that the Ops having examined his left eye, again, gave the medicine prescribed and asked him to make use of the same and then to come back on 22.12.2014. 

 

(h)    Further it is contended that, on 22.12.2014 again when he approached, the Ops gave prescribed medicine and asked him to make use of the same till 31.12.2014 and also directed him to approach them on 09.01.2015.

 

(i)     Further it is contended that, on 09.01.2015 when he approached the Ops and told them that, he was not to have vision in his left eye at all, the OP-1 gave a referral letter so as to approach Retina Institute of Karnataka, No.122, 5^th Main Road, Chamarajpet, Bangalore.  And that on 14.01.2015 when he went to the said institution he was told therein that if he could see any light through the left eye then they would operate the left eye so as to restore the vision, if not, no.  And that as a bad luck as he could not see through his left eye any light he again approached the Ops on 15.01.2015.  And that the Ops had asked him to make use of the said medicines and thus sent him back.

 

(j)     Further he has contended that, till 13.02.2015 he made use of the medicines given by the Ops and on said day he again approached the OP-1 and stated that, he could not see through the left eye.  And that for this the OP-1 replied that, it was not to matter much as he could see through another eye. And that thus OP-1 had given an evasive answer.

 

(k)    Further he was contended that on 02.03.2015 he made an attempt to give a complaint to the PSI of Kolar Town and to the Circle Inspector of Police and also to the S.P. of Kolar District as against these Ops with regard to medical negligence.  And that as they refused to receive the complaints, he send the complaints to them through RPAD.

 

(l)     And that being depressed on 01.04.2015 he went to Minto Eye Hospital, Bangalore.  And that there he underwent 15 types of tests.  And that on 16.04.2015 he was given a written opinion (it was pleaded that, at the end he was told that, he would regain the vision, however at the time of arguments the learned counsel for this complainant submitted that, such a pleadings in Para-21 of the complaint was clerical error and it should be taken read as at the end “he was told that, he could not regain the vision”, and for this he relied on the said written document which was clear with regard to impossibility of regaining the vision in the left eye -  with regard to this aspect necessary observations shall be made hereafter at appropriate stage). 

 

(m)   Further he has contended that, as he had lost vision in the left eye because of the negligence on the part of the Ops he complained to Karnataka State Human Rights Commission and on 22.06.2015 the Assistant Registrar of this Commission passed an order directing the Karnataka Medical Council to investigate. 

 

(n)    Further it is contended that ultimately he gave legal notice dated: 06.07.2015 through his counsel.  And that the Ops without giving reply and without giving the compensation committed negligence. 

 

(o)    So contending, the complainant has come up with this complaint on hand to seek the above set out reliefs.

 

(p)    Along with the complaint the complainant has submitted certain document reference of which shall be made hereafter at appropriate stage.

 

03.   In response to the notices issued through RPAD the Ops have put in their appearance through the learned counsel (There was change in appearance of the counsel in as much as on 01.07.2016 the then learned counsel Sri.B.N. Vasudeva Murthy who was appearing was permitted to retire on the strength of the Memo in writing submitted and subsequently on 04.07.2016 the present learned counsel have put in their appearance for these Ops.) 

 

04.   These Ops have put in their written version resisting claim of the complainant in toto:-

(a)    It is contended that, it was not that the complainant had approached them on 05.12.2014 whereas he had approached them much earlier on 25.10.2014 and on check-up the said line of treatment was suggested by them.  And that on 05.12.2014 only he could come back for the treatment. 

 

(b)    Further it is contended that, as per the very documents produced by the complainant it would indicate that on 04.12.2014 the complainant was treated at Sapthagiri Hospital.  And that the line of treatment given there was not disclosed.

 

(c)    Further it is contended that of them it was only OP-1 who treated the complainant and not the OP-2. 

 

(d)    It is stated that on 05.12.2014 by afternoon surgery was conducted, of them, by OP-1 and it was so done on consent of the patient (the complainant) and his father.  And that it is a fact that Rs.3,000/- came to be received towards portion of charges.  And that after the surgery only sum of Rs.1,000/- came to be paid out of the reduced and agreed fees of Rs.8,000/- and not more than that.  In Para-8 of the written version it is contended that the allegations with regard to giving injections are false whereas of them the OP-1 as a surgeon acted cautiously with all care as a duty bound specialist. 

 

(e)    Further it is contended that except asking the complainant to approach on 06.12.2014 and then on 09.12.2014 nothing was communicated and hence the allegations made by the complainant were untenable being false.  With regard to the contentions raised in Para-12 of the complaint regarding no vision in the left eye, in Para-12 of the written version it is specifically contended that, of them the OP-1 examined the complainant and observed that, the vision was there close to face-so to say up to about one meter.  And further it is contended that, there was a retrnal oedima.  And that so the complainant was referred to Retinal Expert Dr. Manjunath. B.A to detect the retinal changes.  And that Dr. Manjunath who had examined the complainant observed that, there was Acute Central Retinal Artery Occulsion (CRAO) in the left eye and had advised the complainant to have 03 doses of low molecular weight (L.M.W.) Heparin, on alternate days.  And that since that injection was not available, of them with the OP-1 the complainant was referred to Cardiologist Dr. Anand Dhamin Heart Center, Kolar.  And that it was not known as to whether such a treatment was taken by the complainant or not; in as much as the complainant had not disclosed it even when enquired on follow up treatment days. 

 

(f)     It is contended that, the complainant was so advised to continue the medicine up to 17.12.2014 as contended in Para-13 of the complaint.  It is also contended that it was not within their knowledge that on 16.12.2014 the complainant had been to Narayana Eye Hospital, Rajajinagara, Bangalore, in as much he had not disclosed about the said event when he was to approach them subsequently.  And that even it is clear from the report of the said hospital that, no damage had occurred due to the surgery conducted in the left eye of the complainant.

 

(g)    It is contended that the pleadings in Paras-16 to 18 of the complaint with regard to approaching of the complainant on 22.12.2015 and asking him to continue to prescribed medicines up to 31.12.2014 and then to approach them on 09.01.2015 and giving a referral letter on 09.01.2015 to the said Retina Institute in Bangalore and about the development that took place while being so tested at Retina Institute are true and correct.  And further it is contended that, as there could be no negligence on their part the complaint is bound to be dismissed.  And that as the complainant stopped to approach them after 15.01.2015 the allegation that, on 13.02.2015 he had so approached them is false.  And that as there could be no negligence, the question of liability to pay the compensation would never arise.  It is also contended that the report as given by even Minto Hospital, Bangalore, is not to indicate any negligence against them.  And that even the report of Kanva Diagnostic Services Private Limited is not to indicate the contended negligence on their part.  So contending, dismissal of the complaint with costs has been sought.

 

05.   The complainant and the OP-1 have submitted their affidavit evidence and also they have led their evidence before this Forum.  The complainant Murali has been examined as PW-1 and Exhibits - P.1 to P.36 have been marked and received in the evidence.

 

06.   The OP-1 Dr. K. Shankar Naik has been examined as DW-1 and Exhibts-D.1 to D.4 are marked and received in the evidence.  Both the parties have submitted the written arguments through their respective learned counsel.

 

07.   On 10.06.2016 the learned counsel appearing for the complainant has submitted Xerox copies of following citations:-

“(i) Sushma Sharma & Others V/s Bombay Hospital & Others 2007 CTJ 594 (NC) = 2007(2) CPJ 9(NC) = 2007 CPR 57 (NC).

 

(ii) Laxman Prkash (Dr.) V/s State, 2001 ACJ 1204 (Madras High Court).

 

(iii) N.K.Kohli V/s Bajaj Nursing Home 2000 (2) CPJ 308 (MP) = 1999(2) CPR 79.

 

(iv) Savitha Garg (Smt) V/s Director National Heart Institute 2004 CTJ 1009(SC)(CP) = 2004(8) SCC 56

 

(v) Ku.Lakshmi V/s S.K.Govil & Others 2001(2) CPJ 325.

 

(vi)  C.H.Narayana Murthy V/s Christian Hospital for women & Chldren, 2012(2) CPJ 579(NC).

 

(vii) B.Raghupathi(Dr.) & Another V/s B.Vasanth & Others, 2008 CTJ 266 (NCDRC)=2008(1) CPJ 1 (NC).

 

(viii) Babu Rao Vithal Lohakpure & Others v/s Suniti Devi Singhania Hospital & Medical Research Centre & Others, 2008(2) CPJ 31(NC).

 

(ix) Vinod Prasad Nautiyal V/s Savitri Uniyal & Others, 2005(3) CPJ 126 (Uttaranchal).

 

(x) Jipmer v/s Beerrery Srinivas, 2012(3) CPJ 467 (NC).

 

(xi) Shyam Kumar (Dr.) V/s Ramesh Bhai, Harman Bhai Kachiya, 2006(1) CPJ16(NC)=2006(1) CLT 359(NC)=2006(1) CPR 38(NC).

 

(xii) K.N.Lal v/s R.K.Ankhaury (Dr.), 1997(3) CPJ 112 (BIHAR).

 

(xiii) Parvatibin Bhimjibhai Rathod v/s Shivakumar Chandrashekhar(Dr.), 2013(1) CPJ 438(NC).

 

(xiv) AIR 1996 SC 2111=(1996) 2 SUPPL. SCR 671=(1996) 4 SCC 332 = JT 1996(5) SC 1 =(1996) 4 SCALE 364.”

 

08.   On 20.07.2016 the learned counsel for the Ops has submitted following list stated to be Xerox coy of medical literature and Xerox copies of citations:-

(i) Literature on Pterygium extracted from sixth Edition of Kanski – Clinical Opthalmology from author sir Jack J Kanski at page 242 & 243.

 

(ii) AIR 1969 S.C. page 128 (Dr. Laxman Balakrishna Joshi v/s Dr. Trimbak Bapu Godole & Another).

 

(iii) AIR 1996 SC page 550 (Indian Medical Association v/s V.P. Shantha).

 

(iv) II(2004) CPJ Page 204 = AIR 1996 SC page 2377 = 1996 SCC (2) page 634 (Achutrao Haribhau Khodwa v/s State of Maharashtra & Others).

 

(v) IV(2011) CPJ page 414 (NC) (Dr. Kunal Shah v/s Sikuroar Mukafjee & Others).

 

(vi) 1(2012) CPJ page 501 (NC) (Ram Avatar Sharma v/s Dr. Nabin K Pattnaik).

 

5. (vii) II (2004) CPJ page 482 (Ajaykumar v/s Devendranath).

 

5. (viii) 1(2001) CPJ page 8 (Amarsing v/s Frances Newton Hospital & Another)

 

5. (ix) 1(2001) CPJ page 478 (Ashok kumar v/s Dr. Suresh Sharma).

 

(x) 1 (2004) CPJ page 79 (NC) (Mam Chand v/s Dr. Mangat of Mangat Hospital).

 

5. (xi) 1 (2004) CPJ page 369 (Dr. Kumud Garg v/s Raja Bhatia).

 

5. (xii) 1 (2004) CPJ page 123 (Vimalesh Dixit v/s. Dr.R.K.Singhal).

 

5. (xiii) II (2000) CPJ page 345 (NS Sahot v/s New Ruby Hospital & Others).

 

(xiv) 1(2003) CPJ page 153 (NC) (Dr. Harkanwaljit Singh Saini v/s Gurabax Singh & Others).

 

(xv) 1(1999) CPJ page  (Sardool Singh v/s Muni Lal Chopra).

 

5. (xvi) III (2002) CPJ page 242 (Dr. Manjit Singh Sandhu v/s Uday Kanth Thakur & Others).

 

5. (xvii) 1(2003) CPJ page 305 (jaiprakash Sani v/s Director, RajivGandhi Cancerb Institute & Research/centre & Others).

 

5. (xviii) II (2004) CPJ page 102 (Marble City Hospital & Research Centre & Others v/s V.R.Soni).

 

5. (xix) II (2002) CPJ page 169 Vaqar Mohammed Khan & Another v/s Dr.S.K.Tondon.

 

5. (xx) IV(2004)b CPJ page 20 (NC) Inderjeet Singh v/s Jagdeesh Singh.

 

5. (xxi) III (2000) CPJ oage 79 (Nirmalendu Paul v/s Dr.P.K.Bakshi).

 

5. (xxii) III(2000) CPJ page 517 (Surinder Kumar (Laddi) & Another Dr.Santhosh Menon & Others).

 

5. (xxiii) III (2000) CPJ page 558 Rajinder Singh v/s Bhatra Hospital & Medical Research Centre & another.

 

It is pertinent to note that the star marked citations vide serial Nos.7 to 9, 11 to 13 and 16 to 23 have not been submitted by way of Xerox copies.  Therefore the said citations so referred in the list are bound to be taken as not produced, consequently this Forum shall not make any reference of these citations during the course of discussion to be done hereafter at appropriate stage and reference shall be restricted and made only with regard to medical literature as found in serial No.1 of this list and citations vide serial Nos.2 to 6, 10, 14 and 15 only.

 

09.   Besides there is one more citation annexed which is not mentioned in the said list as submitted by the learned counsel appearing for the Ops and the same is III (2004) CPJ 20 (NC).

 

10.   Heard the oral arguments as submitted by the learned counsel appearing for both sides.

 

11.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the OP Nos.1 & 2 are guilty of deficiency in service leading to medical negligence?

 

2. If so, whether the complainant is entitled to the relief sought for?

 

3.  What order?       

 

12.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT NO.1:- In the Affirmative

POINT NO.2:- Partly Affirmative.

 

POINT NO.3:-  As per the final order

                        for the following:-

 

 

REASONS

POINT Nos.1 & 2:-

13.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

14.   On the very strength of the pleadings maintained by the Ops, as noted above it is clear that on 05.12.2014 surgery in the left eye of the complainant was conducted and father of the complainant did pay Rs.3,000/- before the surgery to the OP-1 and subsequently according to the plea of the complainant in Para-10 of the complaint father of the complainant paid Rs.6,000/- after surgery, whereas, as per the pleadings maintained in para-10 of the written version the charges came to be settled to Rs.8,000/- as against Rs.9,000/- agreed earlier and after surgery only Rs.1,000/- came to be paid.  These very pleadings would indicate that, the complainant was the consumer as far as, these Ops are concerned.  And these Ops since rendered service as per the principles enunciated in AIR (1996) 550 as relied by the very learned counsel appearing for the Ops as the rendering of such service was against the said consideration accountability of these Ops can be questioned by the complainant by raising the dispute like the one on hand. 

 

15.   Though the Ops through their written version intend to press in to service that of them only the OP-1 did render the said service, as the OP-2 is making the common cause with the OP-1 besides the discussions we are to make hereafter, we are bound to hold at appropriate stage involvement of the OP-2 also, we conclude this part of the discussion by repeatedly holding that on the strength of the said principles enunciated in the said citation the complainant being a consumer can maintain the complaint challenging the said service rendered, which according to the complainant was deficient. 

 

16.   The learned counsel appearing for the Ops has placed reliance on the principles enunciated in AIR 1969 SC 128 which is to enunciate the principle to the effect that, once the Doctor to accept the duty to serve, then the said duty towards patient would be (i) a duty of care in deciding whether to undertake the case, (ii) a duty of care in deciding what treatment to give and (iii) a duty of care in the administration of that treatment.  Thus as per the principles enunciated in this citation as relied by the learned counsel appearing for the Ops, a breach of any of those duties gives a right of action for negligence to the patient.  Strongly bearing in mind these guidelines we proceed to apply the same to the facts involved in the case on hand.

 

17.   The learned counsel appearing for the Ops has also placed reliance on the principles enunciated in AIR 1996 SC 2377 = 1996 SCC (2) 634 reaffirming the said principles as noted above in this case it has been further confirmed that, leaving the moth inside the peritoneal cavity which led to another surgery to remove it rendered the first surgery medically negligent.  We are to observe that cautiously bearing this aspect in mind we are to proceed applicability of the same in this case on hand with regard to the conduct of the Ops while conducting surgery on the left eye of the complainant.

 

18.   The learned counsel appearing for the Ops has also placed reliance on the principles enunciated in IV (2001) CPJ 414 (NC).  In this case the concept of criminal negligence and the concept of civil negligence pertaining to the medical treatment have been explained and further while awarding compensation with regard to the case of death on account of medical negligence, it has been held that, damages are bound to be awarded under the heads (i) Pecuniary Damages, (ii) Non-pecuniary (Special) damages, (iii) Punitive / Exemplary, (iv) Special Damages.

 

19.   Under the head of Pecuniary Damages following classifications have been made:-

(i) Loss of prospective/future earnings

(ii) Loss of US social security income up to 82 years(because the deceased was lady medical practitioner practicing at US).

(iii) Payments made towards medical treatment.

(iv) Payments made for Chattered flight

(v) Travel/hotel/other expenses

(vi) Litigation costs.

 

And with regard to Non-pecuniary Damages calculations made are:-

1. Loss of companionship
2. Emotional distress
3. Pain/suffering endured by the victim.

 

We are bound to bear in mind of the said heads whatever they are applicable to the case on hand shall have to be invoked.

 

Further the principle enunciated in this citation is with regard to the invoking of multiplier method in assessing loss of income by having recourse to relevant provisions of the Motor Vehicles Act.  This aspect also we are bound to consider seriously at appropriate stage hereafter. 

 

20.   The learned counsel appearing for the Ops has also placed reliance on 1 (2012) CPJ 501 (NC); the principles enunciated in this citation are to the effect that while holding the medical practitioner Ophthalmologist as negligent as far as possible reliance shall have to be made on expert opinion or medical literature on standard practices and procedures.  In this context we will have to take in to consideration the relevant medical opinions that are available on record by way of exhibited documents.

 

21.   The learned counsel appearing for the Ops has also placed reliance on principles enunciates in 1 (2004) CPJ 79 (NC).  The facts pertaining to this citation are with regard to injuries sustained in the accident and development of gangrene on account of negligence by the Doctor that led to amputation of leg.  Since such are not the facts involved in this case at this juncture itself we hold that the principles enunciates in this citation are totally in-applicable to the case on hand.

 

22.   The learned counsel appearing for the Ops has also placed reliance on the principles enunciated in 1 (2003) CPJ 153 (NC).  The facts involved in this citation with regard to medical ailment being pain in the abdomen of the complainant therein, and principles of res-ipsa-loquitur could not be invoked as an expert opinion was needed.  Since such are not facts of the case the principles enunciated in this citation are in-applicable.  Moreover we are to repeat our observations that the medical records which we are bound to rely hereafter since to indicate firmly against negligence of the Ops there is no separate need of any expert to give evidence. 

 

23.   The learned counsel appearing for the Ops has also placed reliance on I (1999) CPJ (page not mentioned) parties being Sardool Singh – Appellant v/s. Muni Lal Chopra-Respondent.  As per the facts involved in this case there was breaking of the plate that was stated to be on account of the very negligence of the complainant himself which was implanted on account of the injuries suffered in the accident on 18.01.1993.  And there was even evidence therein that the complainant had put some pressure on the leg.  Since such are not the facts involved in the case the principles enunciated in this citation are in-applicable to the case on hand.

 

24.   As noted above there is one more citation which was not mentioned in the said list and the same is III (2004) CPJ 20 (NC); as per the principles enunciated in this citation the complainant therein had a problem in the left eye and contended that on account of wrong operation on the part of the doctors/respondent therein the damage in the left eye caused was to the extent of loss of 75% of the vision.  The complaint came to be dismissed in the said case as the complainant therein had failed to bring therein any expert medical records in support of his case.  We are to observe very cautiously at this juncture that there is overwhelming evidence and the plea to indicate the medical negligence as contended by the complainant and hence the principle enunciated in this citation is in-applicable.

 

25.   The medical literature as found in 6^th Edition Jack J Kanski Clinical Ophthalmology on page 243 Clinical features and Line of Treatment have been given with regard to Pterygium which the present complainant had suffered in his left eye.  For the sake of ready reference we reproduce relevant written portion as to be found on page 243 which reads as hereunder:-

“Clinical features:-

1. Type 1 extends less than 2mm onto the cornea.  A deposit of iron (Stocker line) may be seen in the corneal epithelium anterior to the advancing head of the pterygium.  The lesion is often asymptomatic, although it may become intermittently inflamed.  Patients who wear soft contact lenses may have symptoms earlier because large-diameter lenses rest on the elevated head of the pterygium and cause irritation.
2. Type 2 involve up to 4mm of the cornea and may be primary or recurrent following surgery.  They may interfere with the precorneal tear film.  And induce astigmatism.
3. Type 3 invade more than 4mm of the cornea and involve the visual axis.  Extensive lesions, particularly if recurrent, may be associated with subconjunctival fibrosis extending to the fornices that may occasionally cause mild restriction in ocular motility.

 

Treatment

 

1. Medical treatment of symptomatic patients involves tear substitutes.  And topical steroids for inflammation.  The patient should also be advised to wear sunglasses to reduce ultraviolet exposure and decrease the growth stimulus.
2. Surgery is indicated for type 2 and 3 lesions.  Simple excision is associated with a high rate of recurrence that may be more aggressive than the initial lesion.  Numberous techniques aimed at preventing recurrence have been described.  Currently the most widely used technique involves excision of the pterygium and covering of the defect with either a conjunctival autograft or amniotic membrane.  Adjunctive treatment with mitomycin C and beta-iradiation may be used to minimize recurrence but may rarely be complicated by late sclera necrosis.  Occasionally peripheral lamellar keratoplasty is required for deep extensive lesions.”

 

26.   No doubt the OP.1 did conduct the surgery in removing the said Pterygium.  But the main aspect that is bound to be considered in this case is while conducting such a surgery and subsequently for post-operative period there was needed medically cautious approach on the part of the Ops or not.  Therefore we should necessarily to proceed to consider relevant pleadings and the evidence adduced in this case by both the parties before us.

 

27.   The learned counsel appearing for the complainant by placing reliance on the principles enunciated in 2004 (8) SCC 56 has maintained that, the burden cannot be placed on the complainant/patient to implead all those Ops/treating doctors or attending staff as parties.  Firstly we are to observe that the Ops have never taken up any contention with regard to non-joinder of necessary parties.  Contrary here is the OP-1 who intends to take exclusive burden on himself by contending that this OP-2 who is his son was not at all present at the time of said surgery.  Even then both these doctors are before us as Ops.  We feel that the complainant is much hypersensitive for the pleadings maintained in Para-7 of the complaint that besides Ops an Aaya (female servant) and receptionist at the counter had participated in the surgery.  So by going through the principles enunciates as noted above we hold that, the complaint against both these Ops is tenable without the need of impleadment of the said Aaya (female servant) and receptionist who had contentedly participated in the said surgery.

 

28.   The learned counsel appearing for the complainant has placed reliance on 2007 (2) CPJ 9 (NC).  As per the principles enunciated in this citation the medical negligence came to be upheld on following 08 accounts:-

(i) At the time of operation the serum sodium level was low and no effort was made to stabilize the condition of the patent.  On the contrary, the operation for the thigh which is not a life saving operation was rushed through.

 

(ii) Inadequate pain management after operation.

 

(iii) The patient who was suffering from very chronic hypertension was allowed to go into prolonged hypotension (low blood pressure).

 

(iv) In-spite of tachycardia (fast beating of the heart), physiotherapy exercises were given.

 

(v) There was sudden drop in hemoglobin on 1.5.1996 and no investigation was made about the cause of such a drop.

 

(vi) Administration of Beta blocker (concor) was contra indicated.

 

(vii) Onset of Pulmonary Edema was ignored for 20 hours.

 

(viii) All these successive acts of gross negligence resulted in the death of the patient.

 

By following the principles enunciated in this citation we are of the definite opinion that, during the course of the surgery the OP-1 in particular and the OP-2 in general had failed in pain management during and after said surgery, because the reasons we are to develop on the strength of the evidence on record would indicate that the Ops resorted to evasive attitude to cover up their inexcusable error committed during the course of said surgery on the complainant. 

 

29.   The learned counsel appearing for the complainant has placed reliance on (2001) ACJ 1204.  The principle enunciated in this citation is with regard to death of the patient while performing operation of the fractured injuries.  And the extent of criminal liability of Anesthetist and Ortho Surgeons came to be taken in to consideration.  Such are not facts involved in this case.  Hence the principle enunciated in this citation is in-applicable to the case on hand.

 

30. The learned counsel appearing for the complainant has placed reliance on the principle enunciated in (2000) 2 CPJ 308.  As per the principle enunciated in this citation it amounted to medical negligence in as much as before removal of gall bladder – required ERCP test was not advised.  In this context we are to state that, the complainant has contended that because of the first injection given in the left eye within minutes he suffered intolerable pain and experienced as if his left eye would come-off.  And he has further pleaded that, he yelled and 10 minutes thereafter the OP-1 gave another injection to the left eye and that within minutes he underwent drowsiness (Para-8 of the complaint relied).

 

31.   In this context it is worth to note that evidence given by the OP-1/DW-1 during the course of cross-examination dated: 19.03.2016 as to be found in Para-17 and 18 on page-6 and the same reads thus:-

“(17)  I stand by statements made vide Para-2 & 3 of my affidavit evidence. Usually I conduct operations by applying local anesthesia by way of drops and injections in case of need I avail services of general anesthetist.  I usually avail services of Dr. Ifthekar, Anesthetist.  He being resident of Kolar makes himself available to the local doctors. 

(18)    In this case I gave anesthesia to the complainant by way of eye drops – Peppercaine (surface anesthesia) and I gave injection Xylocaine 2% with Adrenaline (1:2 lakhs), Peribulbar anesthesia, given through lower temporal region of the left eye.   I gave only one injection to this complainant.  It is not true to suggest that, I gave two injections to this complainant.  It is not true to suggest that the contended first prick caused acute pain giving experience to the complainant as if eye ball was to come up.  Further it is false to suggest that, after 10 minutes of agony and cry experienced by the complainant I gave the contended second prick which induced drowsiness.”

 

32.   Here the OP-1 was totally unmindful in as much as he gave Anastasia to the complainant by way of eye drops and he gave 01 injection, which the complainant thought as 02 injections.  Here certainly we find the OP-1 guilty, for, instead of availing the service of Dr.Ifthekar, Anesthetist; he himself went ahead in giving Anastasia for which he was not qualified.  And this witness though there was a occasion for him to volunteer he did not opt to volunteer to state that there was no need of Anesthetist for this case.  If Anesthetist were secured certainly he could have taken certain precautionary measure by conducting some needful prior test.  Therefore following the principles enunciated in the said citation and by taking in to consideration the said evidence given by the DW-1/OP.1 we hold that, the OP-1 was medically negligent in handling the case at the time of surgery of the complainant.

 

33.   The learned counsel appearing for the complainant has placed reliance on (2001) 2 CPJ 325 as per the principles enunciated in this citation the Doctor/Surgeon is legally duty bound to give warning about the risk involved and he must give instructions in comprehensive terms making sure that the patient would understand both the instructions and the importance of strictly adhering to them.  In this context we are of the definite opinion that the OP-1 committed grave error.  For, in Para-12 of the written version the Ops have categorically pleaded thus:-

“12. That the allegations made at Para 12 of the complaint are not totally true.  Since the complainant complained no vision of left eye, the OP-1 examined him and observed that the vision was there close to face-so to say up to about 1 mtr.  So it was recorded that there was a retrnal oedima.  So the complainant was referred to Retinal expert Dr. Manjunatha B.A. to detect the retinal changes.  Dr. Manjunath who examined the complainant has observed that there is Acute Central Retinal Artery Occulsion (CRAO) in the left eye and advised to have 3 doses of low molecular weight (L.M.W.)  Heparin on alternate days and since that injection was not available at OP-1 to take that doses the complainant was referred to Cardiologist Dr. Anand, Dhamin Heart Centre, Kolar.  It is not known to this OP whether that treatment was taken by the complainant or not, as the complainant has not disclosed it even enquired on follow-up treatment days.”

 

34.   So when on 09.12.2014 the complainant had come he noticed that there was retinal oedima and just at the said point of time he had observed that vision in the left eye was there close to face-so to say up to about 1 mtr.  If we are to go by the personal experience narrated by the complainant he had total blindness in the left eye.  Let it be.  For the time being we would consider to such an observation that the complainant could see through the left eye to the extent of 01 mtr in distance.  He had noticed retinal oedima.  This was necessarily a post-operative development.  He took care to send the complainant to retina expert by name Dr. Manjunath. B.A., to detect the retinal changes and the said Dr. Manjunath after examination of the complainant had observed that, there was Acute Central Retinal Artery Occulsion (CRAO).  So he had prescribed the said medicine Heparin of 03 doses to be given on alternate days.  The OP-1 further contends that, as he had no such injection, he referred to Cardiologist Dr. Anand of Dhamin Heart Centre, Kolar.  He further contends that, it was not known as to whether the said treatment was taken by the complainant or not.

 

35.   By going through the said principles enunciated in the said citation we are to observe that, there is nothing on record to suggest that the OP-1 had made such reference to Dr. Manjunath in the first instance and thereafter to Dr. Anand.  Furthermore we are to observe that when that particular medicine was not available with him, he was duty bound either to get the said medicine and then administer it by himself if not to see that in his own Clinic the said medicine was so administered by competent Doctor.  There is full failure on the part of the OP-1 in this context. 

36.   At any rate, such reference to Dr. Manjunath and then to Dr. Anand were not bound to be on oral instructions, contrary the same ought to have been by way of records and hence documents like referral letters should have been sent.  Besides we are to observe that Dr. Anand was choice of the OP-1 and not of the complainant.  Therefore he ought to have maintained communication with the said doctor Manjunath and the said Doctor Anand to verify and confirm that, the said patient being the complainant received deserving care and treatment.  So this OP-1 cannot afford to plead as noted above to the effect that, he was not to know as to whether such a treatment was taken by the complainant or not.  As such, there is 100% failure of the duty on the part of this OP-1 in particular and the OP-2 in general. 

 

37.   Besides, it is worth to note that at the very behest of the OP-1 the complainant was made to approach the said doctors Manjunath retinal expert and Dr. Anand, Cardiologist.  Thus these doctors were not the choice of the complainant.  True the complainant has not pleaded in the complaint about approaching these doctors at the instance of the OP-1.  It does not matter.  The complainant need not recite every bit of details in the complaint.  Since he has pleaded that under this OP-1 Doctor only he took the treatment, it would become burden on the part of the OP-1 in particular and OP-2 in general to keep observation about the developments made while the complainant was being examined by the said referred doctors.  And in this context PW-1 being the complainant during the course of cross-examination has narrated the developments in detail.  Therefore we deem it essential to reiterate Para-18 of the cross-examination of this witness/complainant as noted on Page-7.  The same reads thus:-

“18.   It is true on that day OP-1 had arranged check-up by Dr. Manjunath the visiting doctor.  On mutual consultation Dr. Manjunath had told to OP-1 to make consultation with heard specialist and accordingly on that day, I went to Dr. Anand who was heart specialist.  He gave me injection for blood circulation at the left eye site.  But it was of no help.  It is not true to suggest that, I never had been to said Dr. Anand.  I voluntarily state that, Dr. Anand was not giving prescription in writing but on phone he was talking to Chemist and in-turn Chemist was giving injection vial to me and thus I got three vials each of the value of Rs.600/-.”

 

38.   Therefore such answers given in the cross-examination conducted at the instance of the Ops shall have the binding effect on the Ops.  The consequences of appreciation of such evidence would be that the very Ops failed to keep track on subsequent developments with regard to the left eye condition of the complainant.  This failure is a clear deficiency in medical service.

 

39.   The learned counsel appearing for the complainant has placed reliance in AIR 1996 SC 2111.  As per the principles enunciated in this citation a person qualified in homeopathy administered allopathic medicine to the patient therein.  This was held as medical negligence.  Since such are not the facts involved in this case, the principles enunciated in this citation are in-applicable.

 

40.   The learned counsel appearing for the complainant has placed reliance on the principles enunciated in (2012) 2 CPJ 579.   It was a case where delivery was conducted by a doctor who was not qualified or a specialist in Obstetrics and Gynecology.  Hence for the death of the patient and the baby in the said case the said Doctor was held medically negligent.  Since such are not the facts involved in this case, the principles enunciated in this citation are in-applicable.

 

41.   The learned counsel appearing for the complainant has placed reliance on the principles enunciated in (2008) I CPJ 1 there was death of the patient while taking the biopsy to detect the contended cancer and Anastasia was given without conducting any prior test.  Therefore applying principle of res-ipsa-loquitur the doctors therein are held guilty of medically negligent.  Applying part of the principle enunciated in this citation to the case on hand we are to observe that the OP-1 is guilty of not securing anesthetist and also guilty of not conducting required prior tests.  Therefore applying the principle of “res-ipsa-loquitur” we hold that, OP-1 was absolutely guilty of medical negligence.

 

42.   The learned counsel appearing for the complainant has placed reliance on the principles enunciated in (2008) 2 CPJ 31 (NC).  As per the facts in the said case a healthy well nourished lady aged about 38 years was admitted to the hospital on 22.02.1995 for hysterectomy.  And she was taken to the O.T. at 01.40 PM on 24.02.1995.  And she was declared dead by 03.00 PM before commencement of the surgery.  Therefore as the concerned were guilty of not conducting needful prior tests anesthetist, gynecologist, surgeon and chest specialist were held guilty of medical negligence.  Since such are not the facts involved in this case the principles enunciated in this citation are in-applicable.

 

43.   The learned counsel appearing for the complainant has placed reliance on principles enunciated in (2005) 3 CLT 126.  As per the facts involved in the said case in the first instance the lady was declared as not carrying, but subsequently she was found carrying and the Ops attended the delivery and the OP-2 being eye surgeon had administered Anesthesia, the result was death of the patient.  The doctors therein were held guilty of medical negligence.  Partly applying the principle enunciated in the said citation we hold that, the OP-1 was totally disqualified though eye surgeon to administer anesthesia. 

 

44.   The learned counsel appearing for the complainant has placed reliance on the principles enunciated in (2012) 3 CPJ 467.  The Ops therein were guilty of conducting cataract surgery that led to complete loss of vision in the right eye.  Here also as noted above because of the negligence on the part of the OP-1 the said misery came to be developed and is being suffered on the part of the present complainant.  And hence we hold that, OP-1 in particular and the OP-2 in general are accountable by following the principles enunciated in this citation.  And at this juncture we are to observe that there is yet some more evidence on record to pinpoint about negligent conduct on the part of the Ops which we will refer hereafter at appropriate stage.

 

45.   The learned counsel has also placed reliance on principles enunciated in (2006) 1 CPJ 16 (NC), (1997) 3 CPJ 112, and (2013) 1 CPJ 438 (NC).  As per the principles enunciated in these citations there was failure in conducting eye surgery though partially and post operatively and the doctors concerned were held medically negligent.  Therefore following the principles in these citations we hold that, the OP-1 in particular and the OP-2 in general were guilty of medical negligence while treating the complainant at the time of conducting surgery and even thereafter. 

 

46.   As observed by us above, now we shall concentrate on the pleadings and evidence of the very Ops.  We have already noticed that in Para-12 of the written version the Ops have contended that for the retinal Oedima subsequent treatment was resorted to and at that particular juncture on 09.12.2014 vision in the left eye on the part of the complainant was to the extent of 01 meter in distance.  As the complainant has established through other documentary evidence which we refer quite hereafter the complainant was unfortunately 100% blind in his left eye.  When it came to cross-examination of the complainant/Pw.1 in Para-22 he has given an answer to the question in the cross-examination stating, “22.         I do not agree to the suggestion that, since beginning I had defect in my left eye.  I voluntarily state that, earlier to such consultation with Ops I had full vision in my left eye.” (Emphasis supplied).  It is settled legal principle that the suggestion binds the maker.  Through the said suggestion the Ops intend to pass the blame on the complainant himself that such a defect in the left eye was since beginning.  How to believe it?  If supposing such a defect of blindness in the left eye was since beginning, then what on the earth made the Op-2 in general and the OP-1 in particular to go ahead with the said surgery on 05.12.2014?

 

47.   When according to the Ops on 25.10.2014 itself the complainant had approached them if supposing there could be the said defect in the left eye since beginning , then they could have stated so.  On 05.12.2014 in the morning they have conducted the test around 11.00 AM and the Ops opted for surgery around 05.00 PM.  When they have done so, it would mean that, as the Pterigium was likely to obstruct the vision it was removed.  So on 05.12.2014 just prior to the surgery the complainant had healthy vision in his left eye.  To support the same the complainant has submitted Exhibit-P.32 which shows that, on 04.12.2014 he had been to Sapthagiri Hospital as an out-patient.  And in this document there is no mention of blindness in the left eye.  Here are the Ops who to save themselves contend that, the complainant is guilty of approaching various doctors and taking treatment besides them.  This contention is evasive.  By way of precaution the complainant had done so and production of this document vide Exhibit-P.32 is to convince us that, as on 04.12.2014 he had vision in his left eye.  Contrary, being guilty the very OP-1 started asking the complainant to approach various doctors and institutions.  And we have noted above such a reference of the complainant to Dr. Manjunath and Dr. Anand was irresponsible reference with futile result. 

 

48.   In para-16, 17 and 18 of the written versions the Ops have conceded that what is pleaded in Paras-16, 17 & 18 of the complaint are true.  Therefore it would become essential to refer to the same as such pleadings on the part of the complainant are indisputable aspects.  The same read thus:-

 

“16. EzÉà jÃw DgÉÆæUÀ¼ÀÄ ¢£ÁAPÀ; 22.12.2014gÀAzÀÄ zÀÆgÀÄzÁgÀjUÉ ¦æ¹Ìç¥Àë£ï£À°è vÉÆÃj¹zÀ OµÀzsÀUÀ¼À£ÀÄß ¤Ãr, ¢£ÁAPÀ: 31.12.2014gÀªÀgÉUÀÆ §¼À¸À®Ä ¸ÀÆa¹, ¢£ÁAPÀ: 09.01.2015PÉÌ §gÀ®Ä w½¹gÀÄvÁÛgÉ.

17.    ¢£ÁAPÀ: 09.01.2015gÀAzÀÄ zÀÆgÀÄzÁgÀgÀÄ ªÉÄîÌAqÀ DgÉÆæUÀ¼À D¸ÀàvÉæUÉ §AzÀÄ E£ÀÆß PÀtÄÚ PÁt¸ÀÄwÛ®è JAzÁUÀ gÉn£Á E£ï¹ÖlÆåmï D¥sï PÀ£ÁðlPÀ, 122, 5£Éà ªÀÄÄRågÀ¸ÉÛ, ZÁªÀÄgÁd¥ÉÃmÉ, ¨ÉAUÀ¼ÀÆgÀÄ, EªÀgÀ°è vÉÆÃj¹PÉÆAqÀÄ §gÀ®Ä w½¹ ¥ÀvÀæªÉÇAzÀ£ÀÄß 1£Éà DgÉÆæAiÀÄÄ §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ.

 

18.    zÀÆgÀÄzÁgÀgÀÄ ¢£ÁAPÀ: 14.01.2015gÀAzÀÄ gÉn£Á E£ï¹ÖlÆåmï D¥sï PÀ£ÁðlPÀPÉÌ ºÉÆÃV vÉÆÃj¹zÁUÀ, CªÀgÀÄ JqÀUÀtÂÚAzÀ ¨É¼ÀPÉãÁzÀgÀÆ PÁt¸ÀĪÀAwzÀÝ°è £ÁªÀÅ D¥ÀgÉõÀ£ï ªÀiÁr ¸Àj¥Àr¸ÀÄvÉÛêÉ, E®èªÁzÀ°è E®è JAzÀgÀÄ.  DzÀgÉ zÀÄgÀÄzÁgÀjUÉ JqÀUÀtÂÚAzÀ ¨É¼ÀPÀÄ PÁt¸ÀzÉà EgÀĪÀÅzÀjAzÀ ªÀÄvÉÛ DgÉÆæUÀ¼À ªÉÄîÌAqÀ D¸ÀàvÉæUÉ zÀÆgÀÄzÁgÀgÀÄ ¢£ÁAPÀ: 15.01.2015PÉÌ §AzÀgÀÄ.  DUÀ DgÉÆæUÀ¼ÀÄ ªÉÆzÀ®Ä ¤ÃrzÀÝ OµÀzsÀUÀ¼À£Éßà ªÀÄÄAzÀĪÀgɸÀĪÀAvÉ w½¹ zÀÆgÀÄzÁgÀgÀ£ÀÄß ªÁ¥À¸ÀÄì PÀ¼ÀÄ»¹gÀÄvÁÛgÉ.”

(Emphasis supplied)

 

49.   In para-18 of the written version having so conceded these Ops dare to contend that they were not at all negligent in discharging of their duties.  This kind of evasive plea cannot be accepted.  Moreover it is pertinent to note that as it was the OP-1 who referred so; the findings given by this Retina Institute of Karnataka would bind these Ops consequently there was no need of any kind on the part of the complainant to lead expert evidence.

 

50.   Before going to the Ops on 17.12.2014, on 16.12.2014, as pleaded in Para-14 of the complaint the complainant had approached Narayana Eye Clinic, No.121/B, Chord Road, Rajajinagar, 1^st Block, Bangalore.  Father of the complainant had accompanied him.  There is pleading in this paragraph that on account of the effect of the injection given as there was impact on the nerve pertaining to the left eye it was completely damaged and hence there was no chance of regaining of the vision in the left eye.  The relevant document in this context is Exhibit-P.31 the general opinion letter addressed on 16.12.2014 by the doctor attached to Narayana Nethralaya.  It discloses that left eye showed disc pallor disc removed interior and further portion of the handwriting cannot be followed but it would reveal that, the complainant was again referred back to consult the primary surgeon which would mean the present OP-1.

 

51.   For the reasons noted above to the very knowledge of the Ops reliance placed on Para-12 of the written version the complainant had developed retinal oedima.  And as per the evidence of this OP-1/DW-1 the complainant was referred to the said doctors Manjuanth, Retinal Expert and Cardiologist Dr. Anand to see that being experts in the field would give such a treatment which would make circulation of the blood in the affected site in a smooth way which would have consequence of regaining the strength of vision in the left eye.  For the reasons noted above the result is failure.  The cause for the said Oedima undoubtedly was on account of utter negligence while conducting surgery in the left eye to remove Pterygium.

 

52.   Now we concentrate on Exhibit-P.12 the report dated: 14.01.2015 as issued by Retina Institute of Karnataka.  Again it is worth to note that it was the OP-1 who had referred the complainant by way of super consultation.  The diagnosis made is that there was retinal detachment with PVR in the left eye.  And in the advice column it has been noted that, in view of no PL (perception of light) surgical intervention not recommended in left eye of the patient and it has been further observed that if the patient to start perceiving light then only they can try surgery in the left eye.  When the Ops had this expert opinion before them the only course of action in the fitness of things they should have taken was to see that the complainant developed perception of light in the left eye.  Thus the Ops who were duty bound to fallow the said advice have withdrawn themselves from discharging their duties.  So again it is the OP who are to be blamed. 

 

53.   Exhibit P.15 is the certificate dated: 16.04.2015 issued by Assistant Professor of Ophthalmology, Minto Ophthalmic Hospital, Bangalore.  This document would clearly state that, opinion of Vitreo retina department was taken on 01.04.2015.  The relevant document is Exhibit-P.20 being Fluorescein Fundus Angiography as issued by Minto Ophthalmic Hospital, Bangalore.  At this juncture we recapitulate as to what we had observed in the beginning while taking in to account pleadings on the part of the complainant in Para-21 of the complaint.  We hold that in the presence of Exhibit-P.20 dated: 01.04.2015 read with Exhibit-P.15 dated: 16.04.2015 the documents as issued by the Minto Ophthalmic Hospital, Bangalore, the certain opinion was loss of eye sight in the left eye which was irrecoverable.  Therefore the said pleadings in Para-21 of the complaint suffers from clerical error which is bound to be ignored.

 

54.   And on the basis of it, it was noticed that, no ocular intervention in view of no PL (perception of light).  And the opinion arrived at was unlikely to recover significant vision.  Of course this is an independent effort made on the part of the complainant with a hope that, there could be brighter chances of regaining the vision in the left eye.  And this document put an end to all the hopes of the complainant.  Here it is worth to note that either Retina Institute of Karnataka on 14.01.2015 or Minto Ophthalmic Hospital, Bangalore, on 16.04.2015 when issued the said expert opinions they only examined the latest condition with regard to the defects of the left eye of the complainant and they did not treat.  We repeat that Exhibit-P.12 was as a result of the very OP-1 referring the complainant to the said institute and hence the findings as noticed in Exhibit-P.12 do have prevailing effect binding the Ops.  Exhibit-P.21 is nothing to repetition of Exhibit-P.15.   

 

55.   Now we come to lame contention of the Ops in the written version which is with regard to involvement of OP-1 only and not that of the OP-2.  (reliance placed on Para-4 of the written version).  As per the said plea on 05.12.2014 the OP-2 was away in Bangalore.  We have document vide Exhibit-P.27 being the prescription letter dated: 05.12.2014 on the back page it is initialed by the OP-2.  And again Exhibit-P.29 is another prescription dated: 31.12.2014 which is also initialed by the OP-2.  Therefore this OP-2 being the son of the OP-1 both being eye surgeons participated in treating the complainant.  When so Exhibit-D.4 a document dated: 05.01.2016 issued at the instance of Dr. M.C. Modi Eye Hospital, Bangalore, to indicate that on 05.12.2014 this OP-2 had visited the said Hospital in Bangalore would lose any significance.

 

56.   Thus we conclude that while conducting surgery the OP-1 in particular and OP-2 in general failed to comply with regard to the line of treatment inclusive of medical treatment and surgery as noted in page-243 of the said guideline being the Sixth Edition, Jack J Kanski Clinical Ophthalmology as relied by the very Ops themselves.  In the result failure of the vision in the left eye is as a result of gross medical negligence on the part of the Ops which was the root cause.

 

57.   Therefore now we proceed to assess the compensation.  In a given case like this, for the reasons noted above we are bound to follow the provisions of the Motor Vehicles Act, 1988 to the extent the said provisions refer to method to assess the compensation.  So in this case the complainant is entitled to compensation on the following counts:-

1. For pains and sufferings
2. For medical and incidental expenses
3. For loss of proportionate earning capacity in future
4. For loss of amenities.

 

58.   Pains and Suffering:-  Deprivation of eye sight in the left eye of the complainant is certainly a grievous injury, the effect of which the complainant is to suffer throughout the life.  Therefore under this head we award compensation of Rs.25,000/-.

 

59.   Medical and incidental expenses:- the complainant contends that the total payment made to the Ops was in sum of Rs.9,000/-, whereas the Ops conceded that they did receive only Rs.4,000/-.  And it is contention of the Ops that the expenses estimated at Rs.9,000/- because of the talks came to be reduced to Rs.8,000/-.  We have no receipts before us.  Therefore we take medical expenses which are admitted as in sum of Rs.4,000/- only.  Coming to the incidental expenses, there are no specific documentary evidence in this context.  However it is worth to note that right from 25.10.2014 till 13.02.2015 the complainant went on taking treatment and consultations.  All along he was accompanied by his father.  Nearly 08 to 10 times the complainant and his father visited Bangalore to take consultations in the said hospitals.  So we assess that for travelling and food during the said duration they must have spent Rs.11,000/-.  So under this count we award compensation of RS.15,000/-.

 

60.   Loss of proportionate earning capacity in future:-  With regard to the earnings the complainant has not placed any material evidence before us.  However admittedly he runs hair cutting salon.  So we assume that his monthly income could be Rs.6,000/-.  By placing reliance on principles enunciated in ILR 2002 KAR Page 2501 (2507), as the complainant at the relevant time was of 21 years; we select the multiplier as 18.  So the total possible income during life time shall be as below:-

Rs.6,000/- X 12 X 18 = and the same would come to Rs.12,96,000/-.

 

61.   It is worth to note that there is permanent deprivation of eye sight in the left eye.  By following the guideline in part II of Appendix XIX of the Workman’s Compensation Act, 1923 at serial No. 25 loss of earning capacity shall be 40%.  Therefore 40% of the said income shall be Rs.5,18,400/-.

 

62.   Loss of amenities:- The complainant since to suffer blindness in the left eye throughout his life being a person to pursue the profession of hair cutting he is bound to face inconvenience with each and every customer he to serve.  Besides to live his own also he is bound to suffer throughout his life because of the said blindness in the left eye.  Moreover the dependability will be increased, as he cannot be that free as an ordinary man with full health and figure.  So from all these angles we feel that awarding of compensation in a sum of Rs.41,600/- would meet the ends of justice.

63.   In the result we hold that, the complainant is entitled to total compensation of Rs.6,00,000/- together with interest at the rate of 9% per annum from 06.08.2015 being the date of the complaint till realization in as much as these Ops who to have paid the compensation the movement it was confirmed that the complainant was deprived of his vision in the left eye 13.02.2015 as pleaded in Para-19 of the complaint till realization.

 

POINT 4:-

64.   We proceed to pass the following:-

ORDER

(01)  For foregoing reasons this complaint stands allowed with costs of Rs.2,500/- against these Ops as hereunder:-

 

(a)    The Ops shall pay total compensation of Rs.6,00,000/- together with interest @ 9% per annum from 06.08.2015 being the date of the complaint till realization to this complainant.

 

(b)    By following the principles enunciated in ILR-1994 KAR 964, AIR - 1993 SC 1256 and ILR 2000 KAR 2312, we are to observe that on deposit of the said sum together with interest the complainant shall be paid in cash of Rs.1,00,000/- and the entire interest amount, whereas the balance sum of Rs.5,00,000/- shall stand deposited by way of FD for the duration of 05 years in any one of the nationalized or scheduled banks at his option but necessarily to be within jurisdiction of this Forum.  We make it clear that the complainant shall be entitled to admissible periodical interest on such deposit.  Liberty is kept open to the complainant to apply for partial or full withdrawal of such a deposit in case of any emergent unforeseen circumstances to arise making such withdrawal compulsory.

 

(c)    We give time of 30 days to the OP to comply this order from the date of communication of the same.

 

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 23^rd DAY OF JULY 2016)

 

 

 

 

MEMBER                         MEMBER                     PRESIDENT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNEXURES

1) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF COMPLAINANT:-

PW.1        ::      Sri. Murali.

 

2) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-

Exh.P.1::   Notary attested copy dated: 31.03.2015 addressed to Director of Health Department, Bangalore.

 

Exh.P.2::   Notary attested copy of records of Minto Hospital, Bangalore, consisting of four sheets.

 

Exh.P.3::   Notary attested copy of MRI issued by Victoria Hospital, Bangalore.

 

Exh.P.4::   Notary attested copy of report issued by PMSSY Super

Specialty Hospital, Bangalore.

 

Exh. P.5::  Notary attested copy of Neurology Report consisting of

four sheets issued by Bangalore Medical College and

Research Institute Super Specialty Hospital, Bangalore.

 

Exh.P.6::   Notary attested copy of Serology Report consisting of two

sheets issued by KANVA Diagnostic Service Private

Limited, Bangalore.

 

Exh.P.7::   Notary attested copy of report issued by EUROIMMUN,

Bangalore.

 

Exh.P.8::   Notary attested copy of Echo Cardiography and Colour

Doppler Study Report consisting of five sheets issued by

Sri Jayadeva Institute of Cardio Vascular Sciences and

Research, Bangalore.

 

Exh.P.9::   Xerox copy of Consent to Operation issued by Shankar

Eye Hospital, Kolar

 

Exh.P.10:: Xerox copy of In-patient record issued by Shankar Eye

Hospital, Kolar.

Exh.P.11:: Xerox copy of referral letter issued by Dr. Shankar Naik

to Dr. Murulidhar.

 

Exh.P.12:: Xerox copy of report issued Retina Institute of

Karnataka, Bangalore.

 

Exh.P.13:: Xerox copy of complaint to I.G.

 

Exh.P.14:: Xerox copy of complaint to Town PSI, Kolar.

 

Exh.P.15:: Notary attested copy of certificate issued by Director of

Minto Ophthalmic Hospital, Bangalore.

 

Exh.P.16:: Endorsement issued by Town PSI, Kolar.

 

Exhs.P.17 & 18:: Two letters issued by Postal authority in respect

of Dr. Shankar Naik and Dr. Sridhar Naik

regarding service of notice by RPAD.

 

 

Exh.P.19:: Out-patient booklet issued by Minto Hospital,

Bangalore.

 

Exh.P.20:: Report issued by Minto Ophthalmic Hospital, Bangalore,

consisting of three sheets.

 

Exh.P.21:: Notary attested copy of certificate issued by Director of

Minto Ophthalmic Hospital, Bangalore.

 

Exhs.P.22 to 24:: Three postal acknowledgments in respect of S.P.,

I.G., Town PSI, Kolar.

 

Exh.P.25:: Receipt issued by Shankar Eye Hospital, Kolar.

 

Exhs.P.26 to 30:: Five prescriptions issued by Shankar Eye

Hospital, Kolar.

 

Exh.P.31:: Opinion Report issued by Narayana Eye Hospital,

Bangalore.

 

Exh.P.32:: Booklet of case-sheet issued by Sapthagiri Hospital,

Bangalore.

 

Exh.P.33:: Office copy of legal notice issued to Op-1.

 

Exh.P.34:: Office copy of legal notice issued to Op-2.

 

Exh.P.35:: Notary attested copy of Lab Report issued by PMSSY,

Bangalore.

 

Exh.P.36:: Copy of complaint to Human Rights Commission,

Bangalore.

 

 

3) LIST OF PROSECUTION WITNESSES EXAMINED ON BEHALF OF OP:-

DW.1          ::        Dr.K.Shankar Naik.

 

4) LIST OF DOCUMENTS EXHIBITED ON BEHALF OF OP:-

 

Exh.D.1::   Xerox copy of prescription dated: 25.10.2014 issued in

the name of complainant by OP-1.

 

Exh.D.2::   Similar document but dated: 05.12.2014.

 

Exh.D.3::   Xerox copy of in-patient record dated: 05.12.2014 in the name of the complainant issued by OPs hospital.

 

Exh.D.4::   The open declaration dated: 05.01.2016 issued by administrator Dr. M.C. Modi Eye Hospital, Mahalakshmipuram, Bangalore.

 

 

 

 

 

MEMBER                         MEMBER                      PRESIDENT