31/05/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This Appeal is directed against the judgment and order passed by Learned District Forum, Purba Medinipur in case no.CC 66 of 2013 dismissing the complaint.

            The case of the Complainant/Appellant, in short, is that he was advised by OP No.2 for cataract operation of the left eye.  Accordingly, he got himself admitted on 10/03/13 in OP No.1 Hospital and paid Rs.19,700/- for the cataract operation.  The operation was done on 11/03/13 by OP No.2.  On 12/03/13 the Complainant was unable to see with his left eye.  The OP No.2 disclosed that negligently the retina of the eye was perforated by the needle and, as a result, there was haemorrhage.  The Complainant was treated at B. B. Eye Foundation, Kolkata and it was opined that there was retina detachment in the left eye. Thereafter the Complainant was treated at L. V. Prasad Eye Institute, Hyderabad and it was also diagnosed that the left eye was damaged with deep haemorrhage and it was also told that the right eye of the Complainant will be damaged in future.  Under such circumstances, the complaint was filed before the Learned District Forum. 

            The Learned Counsel for the Appellant/Complainant has submitted that at the stage of admission hearing the Learned District Forum called for report from the expert and after the receipt of the expert opinion dismissed the complaint.  It is submitted that there was globe perforation as per the opinion of L. V. Prasad Eye Institute, Hyderabad.  It is submitted that there was retina tear in the left eye as a result of the cataract operation.  It is contended that it was opined by B. B. Eye Foundation, Kolkata and L. V. Prasad Eye Institute, Hyderabad that there was vitreous haemorrhage.  It is submitted that an opportunity should be given to the Complainant to prove his case before the Learned District Forum.

            The Learned Counsel for the Respondent has submitted that the Complainant did not raise any objection against the opinion of the expert before the Learned District Forum and considering the expert opinion Learned District Forum dismissed the complaint.  It is submitted that according to the expert report there is no negligence on the part of the Eye Surgeon and the Appeal is not maintainable.  It is submitted that the total cost of the treatment was borne by the OP Hospital and all steps were taken by the Hospital for the subsequent treatment.  It is contended that under such circumstances, the complaint was not maintainable.

            We have heard the submission made by both sides.  We have gone through the report of the expert submitted by the C.M.O.H., Purba Medinipur and also by Medical Superintendent-cum-Vice Principal, IPGME&R-SSKM Hospital, Kolkata.  In both the reports it has been held that there was no negligence on the part of the Hospital and the Eye Surgeon.  The Respondents have filed the BNA wherein it has been stated in paragraph 7 that the post operative follow up and further check up before the B. B. Eye Foundation, Kolkata as well as L. V. Prasad Eye Institute, Hyderabad the entire expenses of the Appellant were borne by the Respondents and, under such circumstances, the Appeal is liable to be dismissed with cost.  Such contention about the entire expenses borne by the Respondents has not been denied by the Appellant/Complainant.  Having regard to this aspect of the matter, we are of the considered view that the Complainant ceases to be a consumer. 

            Secondly, both the expert reports reveal that there was no negligence on the part of the Hospital and the Eye Surgeon.  It appears that after the receipt of the report the Complainant did not file any written objection against such report.  Under such circumstances, we are of the view that there is no ground to interfere with the impugned judgment and order. 

            The Appeal is dismissed.  The impugned judgment is affirmed.