Before:    Hon’ble President, Biswanath De.

                                            Hon’ble Member, Debi Sengupta.

                                            Hon’ble Member, Samaresh Kumar Mitra.                                                                                

FINAL ORDER

   Samaresh Kumar Mitra, Member:

      The fact of the complainant case in a nutshell is that, the complainant is an elderly woman and is also a house wife.  She was facing some problem in her left eye and for that she came to the OP 2 / Dr. S. K. Baidya in his chamber on 29.11.2011.Op 2 after several medical tests told her that the complainant had been suffering from cataract problem and prescribed some medicines and advised her to go on surgery of her left eye in Midland Nursing Home i.e. OP 1. After discussion the OP No. 2 told the complainant to give an advance of Rs.1000/- to the Op 1/ Midland Nursing Home.  The compt. states that she obeyed all the advices of the Op 2 and the date of operation fixed on 5.12.2011 in the nursing home OP No.1. After surgery the OP No.1 & 2 prescribed one medicine and discharged her by saying that the operation is successful and she is to take precautions as per direction of the op 1. The compt. further states that all on a sudden the compt. was feeling pains in her left eye and the colour of the left eye became red and she also facing some vision problem after observing al the directions of op 1 and 2. The compt. states and contained that she visited several times to the op 2 but the op No. 2 advised the compt. that there is nothing wrong in her eye and no medicine prescribed for the recovery of the eye of the compt. After some days the left eye of the compt. became dark red and a white spot appeared in the eye ball and at the same time the compt. getting pains in her eyes. The compt. visited the op 2/ Dr.S.K. Baidya who prescribed some medicines and referred her to one Dr. D.N. Chatterjee of Alokon Nursing Home situated at Lake Town, Kolkata. But Dr. D.N. Chatterjee ignored to take this case and denied to make treatment to the compt. The compt. understood that the op 1 and 2 did not perform their duties and willfully neglected the compt. thereafter, having no alternative the compt admitted to the Medical College Hospital  under the care of Dr. Ajoy De Sarkar. After several tests the doctor detected that the left eye of the compt. is infected with post operative Endopthalmitis and told the compt. it is too late and if the compt. could come early stage it would be totally cured. The Dr. of the Medical college started treatment and totally it cured. The complainant states that this is due to unhygienic atmosphere of operation theater the  complainant lost the vision of her left eye and on 24.12.2011 the complainant was discharged from Medical College Hospital. The complainant states and contained that due to willful negligence she lost her vision of her left eye.

The complainant incurred huge expense of Rs.160000/- for her treatment, medicine and operation. Therefore, the complainant suffered immense mental agony, pecuniary loss and irreparable loss by the negligence of op 1 and 2 and there is gross deficiency on the part of ops and prays before the Forum for relief.

The ops contested the case by filing written objection denying all the material allegations. Op 1 in his written version states that there is no cause of action and the instant case is harrassive, speculative and misconceived one. Op 1 states in paras 1,2 and 3 of the complaint petition is the matter of record and in the written objection op 1 states that he has no personal knowledge about the interaction between op 2  and the compt.  But he knows the date of the cataract operation of the complainant Para 7 of the complaint petition is the matter of record. Op 1 states that the operation of the complainant was made under the care of op 2/ Dr. S.K. Baidya and the operation was successful for which she was discharged on the same day. The allegations of the op against the complainant that the complainant did not follow and obey all the precautions and did not take the medicine as per direction of the Op 1 & 2.  The op 1 further submits that it is not true that the complainant’s eye was infected due to unhealthy condition of the operation theatre or also due to the carelessness of the op 1 & 2. The op 1 alleges that compt. filed a false case against the op 1 & 2 only to harass them. There is no negligence on the part of op 1.So the complainant would not get any relief due to lack of proof and the instant case should be dismissed against the complainant. Op2/ Dr. S.k. Baidya filed his written version & written argument also.  In the written version the OP 2 denies all the allegations made against him and states that he has rendered the all necessary services to the complainant. So there is no negligence on the part of the op 2. Op 2 states that the complainant came to op 2 with difficulty of vision in her left eye and he examined the complainant and detected that the complainant is suffering from cataract grown in the left eye of the complainant. Thereafter, with the consent of patient party the op 2 operated the surgery of the left eye of the complainant and after operation the ops declared that the operation was successful and thus she was discharged on the same day after prescribing some medicines.  Op 2 strictly denies in para 10 & 11 of the complaint petition .Op 2 also denies the para 21 of the petition of complaint and states that the op 2 never acted in any sort of negligent manner or without any proper medical care or attention towards the compt. or that reason the complainant is suffering and further states that the case is liable to be dismissed with cost for entangling him/op 2 as there is no sort of deficiency or negligency on the part of op 2.

Complainant filed Xerox copies of documents by firisti and also filed evidence in chief, interrogatories & BNA.

OP filed evidence in chief, W/V, Interrogatories, WNA but on three occasions i.e. at the stage of argument was absent on call and no steps taken on her behalf.

POINT FOR DETERMINATION

1).Whether the complainant is a Consumer?

2).Whether there is any deficiency in service on the part of the ops.?

3).Whether the complainant is entitled to get relief as prayed for?

DECISION WITH REASONS :

All the points are taken together for the easiness of the discussion.

Point – 1.      The compt. was suffering from some cataract problems she came to the Op 2 / Dr. S.K. Baidya in his chamber and op 2 prescribed her some medicines and advised her for  left eye cataract surgery in Midland Nursing Home i.e. Op 1 and she gave  an advance payment of Rs.1000/- . So the complainant is a Consumer as per Sec 2 (1) (d) (ii) of the C.P. Act, 1986.

Point – 2 & 3 .

Both the points are taken together for discussion. It is admitted fact that that Smt. Rama Sharma / the complainant visited the chamber of op 2 i.e.  Dr. S. K. Baidya on 29.11.11 and  he advised the complainant to meet with Midland Nursing Home for left eye cataract surgery and thereafter, complainant has given advance for  payment of Rs.1000/- to op 1 on 3.12.2011. On the fixed date  op 1 and op 2 made a cataract surgery carefully and thereafter, the op 1 discharged the complainant at 5 p.m. on the same day. Before operation the complainant‘s local guardian Santanu Sharma filled up operation consent form and at the time of discharge the complainants local guardian took the patient /Smt. Rama Sharma from Midland Nursing Home in satisfactory good health condition with prescription of some medicines. Thereafter, the complainant felt some problem in her left eye that the colour of the operated eye became red and the complainant was feeling pain and was facing vision problem and she was advised by the doctor to take rest but doctor did not prescribe any medicine. When the problem of the left eye of the complainant worsening day by day the complainant met Dr. S.K. Baidya and he instead of providing her any treatment referred her to Dr. D.N. Chatterjee of Alokan Nursing Home for better treatment. The complainant states that Dr.Baidya ignored to take the case. This is why the complainant assailed that Dr. Baidya neglected to perform duty and the O.T. instruments were unhygienic.

So, in view of the above discussion and on perusal of all documents of complainant, written version. Evidence in chief, interrogatories and BNA of the parties we are of the opinion that the complainant failed to prove her case by adducing sufficient evidence from which we can infer that the opposite party is negligent in providing service to this complainant. The documents filed by the complainant is not sufficient to prove the negligent act of the op 1 and op 2 and the complainant could not produce any evidence in support of her complaint that there is deficiency of service on the part of the ops . No expert opinion filed. As the deficiency of service and medical negligence is not established against the Ops so they are not under obligation to pay damages as well as compensation to this complainant. As such the complainant is not entitled to get any relief or reliefs as prayed for.    

ORDER

Hence, ordered that the complaint case being No.61/2012 be and the same is dismissed on contest against the opposite party, with no order as to cost.      

The Opposite Party No. 1to3 are exonerated from their liability.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.

  Dictated and Corrected by me; Samaresh  Kr. Mitra, Member.