IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.

             CASE No.  CC/109/2017.

 Date of Filing:                    Date of Admission:                Date of Disposal:

     06.07.17                                      09.07.17                                  07.01.2020

Complainant: Ashoke Kr. Biswas

S/O- Late Shyamapada Biswas ,

 Vill & PO- Madda, PS- Beldanga,

Pin- 742176

-Vs-

Opposite Party: 1. Manager, Susrut Eye Foundation & Research Centre

25/1, Kalikapur Road,

 PO & PS- Berhampore,

 Pin- 742101

    2. Dr. Banibrata Ghosh,

Susrut Eye Foundation & Research Centre

HB-36/A/1, Sector-III, Salt Lake City,

Kolkata- 700106

Agent/Advocate for the Complainant                        : Sri. Debraj Mukherjee.

Agent/Advocate for the Opposite Party No.1 : Sri. Siddhartha Sankar Dhar.

Agent/Advocate for the Opposite Party No.2 :  None

                       Present:   Sri Asish  Kumar Senapati………………….......President.

                                         Smt. Aloka Bandyopadhyay……………………..Member.

FINAL ORDER

  Sri. Asish Kumar Senapati, Presiding Member.

One Ashoke Kr. Biswas (here in after referred to as the Complainant) filed the case against Susrut Eye Foundation & Research Centre & another (here in after referred to as the OPs) praying for compensation alleging  medical negligence and deficiency in service.

   The sum and substance of the complaint case is as follows:-

            The Complainant, being a rustic villager, developed a problem of reducing eye vision in 2014. He went to the OP No.1 and consulted Dr. Rishi Bharadwaj, an eye specialist who opined that the Complainant was suffering from right eye retina problem and referred the Complainant to the OP No.2 for treatment,  Subsequently, the OP No.2 examined the Complainant and opined that the Complainant was suffering from minor retina problem and advised him for a retina operation. The OP No.2 also assured that the OP No.1 hospital  is well equipped with all modern facilities required for the treatment and eye operation. That on being inspired by such assurance, the Complainant got himself admitted in  the OP No.1 hospital under the OP No.2 on 01.11.14 for his right eye operation and paid Rs.7,000/- as cost of operation. The operation was done on the same day and the Complainant was discharged. The OP No.2 assured that the operation was successful and the Complainant would recover his eye sight very soon and advised him to come to the hospital for check up on 08.11.14. On 08.11.14, the Complainant went to the OP No. 1 hospital for check up and he was not checked up by the OP No.2. The Dr. who checked up the Complainant, assured that his right eye vision was o.k. and advised him to take medicines but the condition of the right eye of the Complainant was turned from bad to worse. On being asked, the OP No.1 informed the Complainant that the OP No. 2 stopped to come to Berhampore and he was attached with Salt Lake hospital of OP No.1. On 11.12.14, the Complainant went to the OP No. 2 at Salt Lak, Kolkata accompanied by his son and after examining the Complainant, the OP No.2 prescribed medicine and assured that the Complainant would get well soon. That in spite of the treatment by OP No.2, the right eye vision of the Complainant was not clear but it was started to deteriorate gradually which caused total blindness since such operation, a severe pain had to suffer by the Complainant in  his right eye. That ultimately, on 22.05.17, the Complainant visited Rotary Beldanga Eye Hospital and consulted with Dr. M. Chakraborty, and eye specialist who opined that the Complainant has lost his right eye vision permanently due to such negligent operation performed by OP No.2. That the operation performed by the OP No.2 upon the right eye of the Complainant was very negligent and careless manner causing loss of vision in his right eye and severe pain. The OPs have deficiency in service coupled with unfair trade practice. Hence, the Complainant prayed for a direction upon the OPs to pay Rs.50,000/- for medical expanses of the Complainant and to pay further compensation to the tune of Rs.5,00,000/- along with interest @ 12.5% per annum till realisation of the amount.

            The OP No. 1 filed written version on 25.07.18, inter alia, denying the allegations made out in the complaint contending that the Complainant admitted for his eye surgery on 01.11.14 and retina- Ant.- Vitrectomoy + IOL dialing surgery was performed by Dr. Banibrata Ghosh on the same day. The operation was successful and patient was discharged on the same day with diagnosis Vitreous hemarege + cataract (RE). Doctor treated the patient with procedure accepted by medical science with utmost skill and care. The OP No.1 has all modern facilities for treatment and operation of eye. There is no deficiency in service on the part of the OP No.1. The OP No.1 prays for dismissal of the case.

            The OP No.2 filed written version on 25.05.18 contending that the case is not maintainable and the case is barred under section 24 (a) of the Consumer Protection Act and the cause of action arose on 01.11.14 and the complaint case was filed in 2017. It is the specific case of the OP No.2 that the Complainant had a past history of Cataract surgery elsewhere in his right eye around one and half year prior to visiting the OP No.1 and petition is liable to be dismissed due to suppression of material facts. The statement of the Complainant that he was suffering from right eye retina problem is false as Dr. Bharadwaj himself is retina specialist and he never mentioned any surgical retina problem of the Complainant in his report. He suppressed the fact of decentred PCIOL of the Complainant and Dr. Bharadwaj never referred the Complainant to the OP No.2. It may be stated that on 25.09.14, the Complainant took the advice of Dr. Alok Agarwal who was available on that day and he is also a retina specialist and he also never referred any surgical retina problem and he also opined the problem as ‘’One Heptic in Anterior Chamber’’. On 10.10.14, the Complainant visited the OP No.2 when the OP No.2 found that heptic was touching the Cornea and no retina problem of the Complainant was diagnosed and retina was very hazily visible and there was some hard exudate at mocula and reported so in the Complainants record. That the OP No.2 advised the Complainant anterior vicrectomi and IOL dialing in right eye and accordingly, the OP No.2 performed vicrectomi in the right eye of the Complainant on 01.11.14 and dialed the IOL to bring it at central position and both heptics were placed posterior to eris. The OP No.2 never opined that the right eye vision of the Complainant was clear which is apparent from the discharge certificate of the Complainant. The Complainant was checked on 08.11.14 and 14.11.14 by Dr. Rishi Bharadwaj and vision in his right eye was same as pre operatively. Cornea was hazy and right eye IOL is on proper placed and the retina was hazily visible and normal. That on 20.11.14, the Complainant was examined by a anterior segment specialist, Dr. Arunabha Banerjee and his opinion was same as Dr. Rishi Bharadwaj. That on 28.11.14, the Complainant was again visited consulted by Dr. Bharadwaj and the Complainant came to Saltlake Branch of the hospital on 11.12.14 and found that the Complainant had bullous keratopathy and treated him sympathetically. On 02.01.15, the Complainant lastly visited the hospital and was checked by Dr. Subijay Sinha. It is very curious that the Complainant stated that his condition after a gap of two and half years from his last visit to the hospital i.e. on 22.05.17 which is very curious and crystal clear that the fact has been made out for the purpose of this case to avoid the period of limitation.

            That the concerned doctor of Rotary Hospital never opined that the Complainant has lost his right eye vision due to faulty operation of the OP No.2.

            The Rotary Beldanga Eye Hospital is a necessary party. The OP No.2 has prayed for dismissal of the Complaint.    

            On the basis of the above version the following points are framed for proper adjudication of the case :

Points for consideration

1. Isthe Complainant a consumer under the provision of the CP Act, 1986?

2. Has this Forum jurisdiction to entertain the complaint?

3. Have the OPs any deficiency in service, as alleged?

4. Is the Complainant entitled to get any relief, as prayed for?

Point no.1

The Ld. Advocate for the Complainant submits that the complainant is a consumer as he hired services of the OPs for consideration.

The Ld. Advocate for the O.P. No.1 submits that the case is not maintainable.

On going through the complaint, written version and other materials on record and on a careful consideration over the submission of both sides, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P.Act, 1986 as he hired services of the OPs for consideration.

Point No.2

                    The Ld. Advocate for the Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.

On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint.

Point Nos.3&4

            The Ld. Advocate for the Complainant submits that the Complainant went to the OP No.1 in 2014 for treatment in his right eye and ultimately the OP No.2 operated the right eye of the Complainant on 01.11.14 and the Complainant paid Rs.7,000/- to the OP No.1for his treatment.It is urged that the vision of the right eye of the Complainant had ultimately lost and the doctor at Rotary Beldanga Eye Hospital treated the patient on 22.05.17 and opined that the patient has lost right eye due to PBK in right eye. It is urged that the loss of right eye of the Complainant was due to negligence and deficiency in service on the part of the OPs. It is urged that the Complainant went up to Kolkata to meet the OP No.2 for treatment but his right eye vision  had not improved. He prays for compensation of Rs.5,00,000/- against the OPs and medical expenses to the tune of Rs.50,000/-.

            In reply, the Ld. Advocate for the OP No.1 submits that the OP No.1 has every facility for eye treatment and operation and the Complainant got his right eye operated on 01.11.14 at the OP No.2 and the operation was conducted by the OP No.2. It is urged that the operation was successful and the Complainant was discharged on the same day i.e. on 01.11.14 with diagnosis victorious hemarage + cataract/(right eye) and type of surgery retina – ANT. Vitrectomy + IOL dialing. It is contended that the Complainant suppressed the fact of his cataract surgery and the OP No.2 preformed retina – ANT. Vitrectomy + IOL dialing surgery which is accepted in medical practice for treatment of victorious hemarage + cataract/(right eye). It is submitted that the OP No.1 has no deficiency in service. He prays for dismissal of the complaint against the OP No.1.

            The OP No.2 filed written version but he did not file any evidence or did not take part in hearing of argument.

            Admittedly, the Complainant came to the OP No.1 for his problem in his right eye on 20.09.14.  On 10.10.14, the OP No.2 advised admission for  RE (vitrectomy + IOL dialing. We find from the discharge certificate dated 01.11.14 that the OP No.2 performed ANT Vitrectomy + IOL dialing surgery in the right eye of the Complainant and discharged the patient on 01.11.14 with advice for review on 08.11.14. It appears from the reverse page of the discharge certificate that the Complainant attended the OP No.1 on 08.11.14, 14.11.14 and 21.11.14 for check up and he was examined by different doctors. On going through the advice of the doctors dated 08.11.14, 14.11.14 and 21.11.14, we find no diagnosis and prognosis. It is not understood why the doctors did not mention any diagnosis or prognosis after examining the patient on 08.11.14, 14.11.14 and 21.11.14. If the attending doctors noted  diagnosis and prognosis, the condition of the right eye after operation might be understood but unfortunately, the doctors of OP No.1 did not care to mention diagnosis and prognosis after examining the patient on 08.11.14, 14.11.14 and 21.11.14.

            The OP No.2 performed the operation on 01.11.14 and he examined the patient on 11.12.14 at Susrut Eye Foundation and Research Centre, Saltlake, Kolkata but unfortunately, he also did not care to note diagnosis and prognosis. It is not mentioned in the prescription dated 11.12.14 whether there was any improvement or deterioration in the right eye of the Complainant after operation on 01.11.14.

On a careful consideration over the materials on record, we have no hesitation to hold that the OP No.2 has negligence and deficiency in service as he did not mention diagnosis and prognosis of the treatment of the Complainant.

We are unable to accept the allegation of the Complainant that the loss of vision in the right eye of the Complainant was due to operation by the OP No.2 on 01.11.14 as there is no expert evidence to establish that the surgery of retina victorious + IOL dialing is not accepted medical practice for treatment of victorious hemarage + cataract. We also find from the prescriptions issued by different doctors of OP No.1 that they did not care to mention diagnosis and prognosis after examining the Complainant on different dates.

We think that the OP No.1 has also deficiency in service as the doctors under his control have not followed the accepted principle of medical practice by noting diagnosis and prognosis in their advice after examining the complainant on 20.09.14,08.11.14,14.11.14,21.11.14,28.11.14 and 08.11.15. Considering the facts and circumstances, we find that the Complainant has been able to establish deficiency in service and negligence against the OP No.1 and 2.

In our considered opinion, the Complainant  has suffered much for deficiency in service and negligence on the part of the OPs for which he is entitled to get compensation of Rs.50,000/- for deficiency in service and negligence on the part of the OPs.

Reasons for delay

The Case was filed on 06.07.17 and admitted on 09.07.17 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day order.

Fees paid are correct.

In the result, the Complaint Case is succeeds. Hence, it is

                                                            ORDERED

that the Consumer Complaint Case No. CC/109/2017 be and the same is hereby allowed on contest against the OP No.1 without cost and allowed  exparte  against the OP No.2 without cost.

The OPs are directed to pay compensation of Rs.50,000/- jointly and severely for deficiency in service and negligence to the Complainant within 60 days from the date of this order, in default, the OPs are liable to pay interest @ 10% p.a. to the complainant from the date of this order till realization .

Let plain copy of this order  be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand  /by post under proper acknowledgment  as per rules, for information and necessary action.

The Final Order will also be available in the following Website:

    confonet.nic.in

Dictated & corrected by me.

                                                              President

  Member                                Member                                                      President.