BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 1538/2007 against C.C. 108/2006, Dist. Forum, Karimnagar
Between:
1). Dr. O. Muralidhar
S/o. O. Neelakantaiah
Age: 53 years,
C/o. Vitreo Retinal Institute
1-1-51, 4th Floor,
Sairam Towers,
Alexander Road,
Secunderabad-500 003.
2). Dr. Satish G. Agraharam.
S/o. G. Anand Rao
Age: 36 years.
C/o. Vitreo Retinal Institute
1-1-51, 4th Floor,
Sairam Towers,
Alexander Road,
Secunderabad-500 003. *** Appellants/
O.P. 1 & 2
And
1. Mod. Abdul Masood
@ Md. Masood
S/o. Mohd. Abdul Rasheed
Age: 22 years, C/o. Md. Naseer
H. No. 6-6-998, Beside Bilal Masjid
Subhashnagar,
Karimnagar-505 001. *** Respondent/
Complainant.
2. Syed Mujeeb Ahmed
S/o. Syed Mahamood
Age: 25 years,
Ex-Spectacle Frames Businessman
Lab Technician
C/o. Mohd. Najimuddin
H.No. 3-6-420,
Subhashnagar,
Karimnagar-505 001. *** Respondent/
O.P. No. 3
Counsel for the Appellant: Mr. D. Srinivasa Prasad
Counsel for the Resp: Mr. Mohd. Afzal. (R1)
F.A. 422/2008 against C.C. 108/2006, Dist. Forum, Karimnagar
Between:
1. Mod. Abdul Masood
@ Md. Masood
S/o. Mohd. Abdul Rasheed
Age: 23 years,
C/o. Md. Afzal, Advocate
Shivajinagar,
Karimnagar-505 001. *** Appellant/
Complainant.
And
1). Dr. O. Muralidhar
S/o. O. Neelakantaiah
Age: 53 years,
C/o. Vitreo Retinal Institute
1-1-51, 4th Floor,
Sairam Towers,
Alexander Road,
Secunderabad-500 003.
2). Dr. Satish G. Agraharam.
S/o. G. Anand Rao
Age: 36 years.
C/o. Vitreo Retinal Institute
1-1-51, 4th Floor,
Sairam Towers,
Alexander Road,
Secunderabad-500 003. *** Respondents/
O.P. 1 & 2
3. Syed Mujeeb Ahmed
S/o. Syed Mahamood
Age: 25 years,
Ex-Spectacle Frames Businessman
Lab Technician
C/o. Mohd. Najimuddin
H.No. 3-6-420,
Subhashnagar,
Karimnagar-505 002. *** Respondent/
O.P. No. 3
Counsel for the Appellant: Mr. Mohd. Afzal.
Counsel for the Resps: Mr. D. Srinivasa Prasad (R1& R2)
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT.
SMT. M. SHREESHA, MEMBER.
&
SRI K. SATYANAND, MEMBER
FRIDAY, THIS THE TWENTY NINTH DAY OF MAY TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President)
***
1) These are cross-appeals one preferred by the complainant F.A. 422/2008 against inadequacy of the amount granted, while the respondents filed F.A. 1538/2007 against the very order awarding compensation.
2) Since both parties have preferred appeals we describe the parties as arrayed in the original complaint before the Dist. Forum for felicity of expression and avoid confusion.
3) The case of the complainant in brief is that he was 22 years of age and was a Immam teacher in Arabic and Urdu languages. The mosque was paying Rs. 2,000/- per month in addition to other benefits. After he took treatment in L.V. Prasad Eye Institute, Hyderabad for his eye sight, when he intended to get his eye tested R3 a business man in spectacles referred him to R1 & R2 Vitero Retinal Institute. He informed about the earlier treatment given to him in L.V.Prasad Eye Institute and on that R1 had advised him to undergo operation to his right eye in the first instance, and demanded Rs. 15,000/- which he had paid. After R1 & R2 had operated his right eye, he complained loss of eye sight. On that they demanded Rs. 8,000/- for second operation to the left eye promising that he would get good eye sight which he had paid. They informed him that they had replaced with a new high power lens. Later he visited several times spending huge amount of Rs. 2 lakhs, however, he could not regain his eye sight. At their instance, he returned all the original cash receipts, bills etc. to them. Later, they referred him to Dr. Chandrasekhar of L.V. Prasad Eye Institute, Hyderabad for further treatment. Dr. Chandrasekhar after examining him opined that due to negligent treatment of R1 & R2 he lost his eye sight and it was impossible to retrieve. He lost his eye sight in both of the eyes due to negligent treatment administered by the respondents. He became totally blind. Therefore, he claimed Rs. 8 lakhs towards compensation, Rs. 25,000/- towards mental agony and costs.
4) R1 filed a counter adopted by R2 resisting the case. They alleged that the Dist. Forum at Karimnagar had no jurisdiction as they are residents of Hyderabad. Without taking the leave, he filed the complaint before the Dist. Forum. While putting the complainant to prove that he was Immam earning Rs. 2,000/- per month etc., denied that they were negligent in treating the complainant for his eye treatment. They alleged that the complainant suffered congenital eye problem. He underwent surgery in his child hood. The allegation that R3 was a dealer in spectacles and he referred the complainant to them was made in order to confer jurisdiction of Dist. Forum at Karimnagar. They alleged that when they tested him on 4. 11. 2004 the vision in the right eye was very poor. He had only perception of light in the right eye. There was doubtful perception of light in the left eye. He revealed that he was operated for cataract with IOL implantation in the right eye at the age of 10 years, and Corneal transplantation in the left eye in the year 2000 in L.V. Prasad Eye Institute. He was on anti -glaucoma medication IOTIM 0.5% drops. He was found having unstable eye sight (NYSTAGMUS), indication of poor vision, since his child hood. The right eye had intraocular lens (IOL) partially displaced forward touching the cornea, thick posterior capsule membrane behind the intraocular lens. Left eye had total corneal opacity. After examining him, he was advised ultrasound scan in the right eye which indicated vitreous cavity behind the capsule membrane and attached retina. He was accordingly advised pars plana membranectomy to create an opening in the thick capsule membrane to assess the retina optic nerve and possibility of navigational vision, at least with a very guarded visual prognosis, and if operated, at least he would gain navigational vision This was clearly explained to him. An amount of Rs. 16,000/- was received from him for the operation. On 1.12.2004 pars plana membrectomy was conducted in his right eye. R2 had nothing to do with the said surgery.
The complainant was informed about the operation, and about the condition of optic nerve which was pale (opticatrophy, chorio retinal astrophy, seclerosed retinal blood vessels, indicating unhealthy ratina, and optic nerve was poor). He was given oral and topical steroids during post operative care. However, it requires three weeks check up. On 11.1.2005 he was advised to undergo removal of IOL on IOL touching the cornea. Thereafter IOL ex-plantation was advised. When the complainant had contacted R2 he also advised removal of lens inserted in the right eye. At no time he advised operation to the left eye. He did not fix any new lens much less new high power lens in the right eye. They never requested for return of the bills issued to him. They referred the complainant to Dr. G. Chandra Sekhar for management of the uncontrolled glaucoma in the right eye with laser photocoagulation, a facility available only at Dr. L. V. Prasad Eye Institute. This was suggested as it was found that cornea was oedematous with raise in IOP. They were not aware, whether he met Dr. Chandrasekhar. They denied that Dr. Chandrasekhar observed that they treated him negligently and as such he lost his eye sight. The complainant suppressed that he underwent corneal transplant in the left eye in the year 2000 in Dr. L. V. Prasad Eye Institute, and the same was failed. By the time, he came to them he was already on anti-glaucoma medication. In fact when the complainant visited them the vision in the right eye was in the perception of light only, while there was doubtful perception of light in the left eye. They never treated him negligently. They treated him in his best interest only. Therefore they prayed that the complaint be dismissed.
5) R3 did not choose to contest the matter and therefore he was set-exparte.
6) The complainant in proof of his case examined himself as PW1 and his mother as PW2, and residents of Karimnagar Sri Javeed, President of Mosque and Sri Azeemoddin as PW3 & PW4 respectively and got Exs. A1 to A27 marked. Refuting his evidence R1 was examined himself as RW1, R2 as RW2 and one Sri Anil Kumar Mandal as RW3 and got Exs. B1 to B6 marked.
7) The Dist. Forum after considering the evidence placed on record opined that proper consent was not taken from the complainant and R1 & R2 are not trained anaesthetists, and as such conducting operation without anaesthetist amounts to negligence and awarded a compensation of Rs. 3 lakhs together with interest @ 9% p.a., from the date of complaint together with costs of Rs. 1,000/-.
8) Aggrieved by the said order, the respondents 1 & 2 preferred F.A. 1538/2007 contending that the Dist. Forum did not appreciate the facts in correct perspective. It did not consider the fact that the complainant had undergone earlier surgery and the same was suppressed. There was no negligence on their part in treating the complainant. Eye surgeons are trained to administer local anaesthesia while conducting the operation to the eye. Since the complainant has already lost his eye sight and there was remote chance of getting back the eye sight even after operation, compensation could not have been awarded against them. They prayed that the compensation awarded against them be set-aside and consequently dismiss the complaint.
9) The complainant preferred F.A. 422/2008 contending that the Dist. Forum ought to have granted compensation of Rs. 8 lakhs as claimed by him in toto. It ought to have seen that he spent huge amounts for treatment, and consequently lost his source of livelihood and as such entitled to entire compensation of Rs. 8 lakhs as claimed by him.
10) The points that arise for consideration are :
i) Whether R1 and R2 are guilty of medical negligence in treating the complainant?
ii) Whether the complainant is entitled to any compensation? If so, to what amount?
11) It is an undisputed fact that R1 & R2 are qualified ophthalmologists, did their MS as well as D.O. While R1 was Head of the Department of Sarojini Devi Eye Hospital, R2 was working in R1 hospital, he having worked at Sankara Nethralaya, Chennai for two years.
12) It is also not in dispute that complainant when he was a boy of 7 years had poor vision and admitted in L.V. Prasad Eye Institute, Hyderabad on 25.2.1994. Dr. A. K. Mandal, and Dr. Subhadra Jalali, Ophthalmologists examined PW1 and found that there was total cataract in the right eye. They also observed that left eye was pale and the optic nerve in the left eye was very weak. They found that retina was damaged in both eyes. On 2.4.1994 a cataract surgery with IOL implantation was done in the right eye. Later when PW1 developed retinal detachment in the left eye though operation was conducted on 28.2.2002, the same could not be attached. ERG test was done in the year 2003. Later, when tests were conducted, it was found that right side vision was recorded at a distance of 10 cms and the right eye was having light perception. Ex. B5 reveals that Dr. Subhadra Jalali advised the patient to undergo Laser Capsulotomy .However, since PW1 did not approach, they could not conduct the said operation.
13) For the first time PW1 visited the clinic of R1 and R2 on 4.11.2004. RW1 observed that IOL lens was touching the cornea superiorly and there was a thick membrane behind the intraocular lens in the right eye. There was total corneal opacity in the left eye. According to him, PW1 had perception of light in the right eye. However, there was no perception of light in the left eye. He did B-Scan and found that the retina in the right eye was attached, and therefore he advised right eye operation of membranectomy with a very guarded visual prognosis. Accordingly, consent of PW1 and his mother PW2 was obtained evidenced under Ex. B1 for the surgery conducted on 1.12.2004. He also conducted second operation on 1.2.2005 after obtaining consent from PWs 1 & 2 to control corneal oedema of right eye for removal of intraocular lens. On 10.3.2005 RW1 referred PW1 to Dr. Chandrasekhar of L.V. Prasad Eye institute for laser treatment for uncontrolled glaucoma in the right eye as they do not have requisite machinery evidenced under letter Ex. A19.
14) PW1 deposed that when he went to Dr. Chandrsekhar of L.V. Prasad Eye institute as recommended by R1, Dr. Chandrasekhar informed him that the operation conducted by R1 was a failure. He imputes negligence on the part of R1 & R2 in conducting the operation, due to which he totally became blind.
15) The complainant did not examine Dr. Chandrasekhar or file any document in order to prove that Dr. Chandrasekhar opined that R1 has conducted the operation negligently due to which he became blind. Though according to him, Dr. Chandrasekhar informed him on 10.3.2005 that the operation conducted by R1 & R2 was not proper, he issued a legal notice Ex.
A23 on 3.4.2006 almost one year after the opinion expressed by Dr. Chandrasekhar that the operation conducted by R1 & R2 was improper and negligent. In the meantime he visited several hospitals and took treatment. Leaving all those doctors the complainant had chosen to file complaint against the appellants alleging that they conducted faulty surgery. There is no proof or basis for stating so.
16) We may state that the complainant except examining himself as PW1 and his mother as PW2 and neighbours who spoke in general terms that PW1 was having good eye sight and after the operation conducted by R1 & R2 he became blind, no documentary evidence was filed in order to establish the same. On the other hand, this version is undoubtedly introduced in order to claim compensation against R1 & R2.
17) The imputation by complainant against R1 & R2 was that “you have conducted the operation and arranged lens which were high power do not adjust to my client eyes, as a result my client has lost total vision at the age of 21 years even unable to perform imam duty of mosque.” He further alleged that “you have inserted high power lenses, which does not require and those high power lenses damaged his eyes and now no remedy to recover at any cost up to death.” Before appreciating his observation, we may recapitulate that R1 had performed the operation on PW1 on 1.12.2004 where he performed the surgery of membranectomy with a very guarded visual prognosis to the right eye. On 11.1.2005 he was advised to undergo removal of IOL due to touching of cornea. On 1.2.2005 IOL ex-plantation was conducted. In fact no lens was fixed as alleged by the complainant.
18) At the cost of repetition, we may state that PW1 did not let in any evidence to prove that the doctors in various super speciality hospitals opined that there was insertion of IOL and that due to insertion of high power lens his eyes were damaged. In fact, all this was his imagination without any basis. What all he did was he removed the lens already inserted in the right eye by L.V. Prasad Eye Institute which according to him was touching the cornea. As IOL was touching the cornea it had become oedematous . Later on 10.3.2005 when he examined PW1 he found that corneal oedema was persisting and advised to undergo cyclophotocoagulation in L.V. Prasad Eye Institute as his clinic was not having necessary wherewithal to do such treatment. As we have earlier pointed out PW1 did not go to Dr. Chandrasekhar of L.V. Prasad Eye Institute though a referral letter Ex. A19 was issued to him. As we can see from the record that he went to L.V. Prasad Eye Institute on 1.3.2006 almost 7 months after RW1 referred him. On 1.3.2006 PW1 was examined by Dr. A. K. Mandal. He opined that he complained of ‘watering and pain in right eye for the past 3 months.’ He was not using any medication. “ His vision was HM+, PL+PR accurate in right eye and no light perception in left eye. Finally they concluded that anterior chamber was deep in right eye and flat in left eye, pupil was irregular and sluggishly reacting in right eye and further view was not possible in left eye. Right eye view was hazy due to corneal oedema. There was aphakia. Intraocular pressure was 16mm Hg in right eye and digitally low in left eye. Fundus could not be seen in right eye because of micro cystic epithelial corneal edema. The poor visual prognosis was explained to the patient and referred to Rehabilitation department. He was subsequently lost to follow up.”
Obviously, when he was informed about it on 1.3.2006 without going to the rehabilitation centre as suggested by L.V. Prasad Eye Institute, instead he went to an advocate on 3.4.2006 and got issued a legal notice to R1 & R2 claiming compensation of Rs. 8 lakhs on the ground that R1 and R2 had inserted a high power lens which damaged his eyes. Absolutely, there is no evidence to show that R1 had inserted a new high power lens which resulted in blindness.
19) This was rebutted by R1, R2 & RW3 a specialist who has earlier examined PW1, swore on oath and deposed that PW1 was having poor vision right from his child hood. His evidence that he examined PW1 when he was 11 years old in the year 1994 with problem of whitish opacity in the right eye which was noticed by the parents 2 to 3 months ago. Parents informed them that the child was having poor vision noticed by the teachers. It was about four years ago i.e., at the age when he was 7 years old. They observed that the colour of optic nerve of the left eye was pale. They could not examine other eye optic nerve as there was total cataract in the right eye. On 2.4.1994 IOL implantation was done in the right eye while in the left eye they observed there was weakness in optic nerve. There was retinal destropy in both the eyes. Later he developed retinal detachment in the left eye. He was operated, however, it was not successful. Later retina operation was conducted on 28.2.2002 in the left eye with a fond hope of recovery but there was poor prognosis. He categorically stated that ERG test was done and both the eyes response was extinguished. Later several tests were conducted. Even in the year 2002 they opined that there was no vision in the left eye.
He further opined that laser capsulotomy was suggested to him to the right eye, since he did not appear, the same could not be done. Finally, he observed that left eye had no light perception and the right eye was aphakic (lense which was implanted was removed). It was explained to the patient that the visual prognosis was poor and patient was suggested to visit rehabilitation centre. They saw the patient on 1.3.2006. Probably the patient might have not gone to rehabilitation centre. RW3 categorically stated that there was no negligence on the part of R1 & R2 in treating PW1 or operating on him
20) In the teeth of evidence of RW1 and RW3, the version of PW1 that IOL was implanted with high power lens and therefore he became blind had no substance. This was all illusionary. No evidence has been let in to establish that R1 had implanted IOL with high power lens. In fact there was no lens implanted. No doubt PW1 had paid altogether Rs. 24,000/- for various treatments evidenced under receipts Exs. A5 & A12. R1 undoubtedly conducted the operation, treated him when he found that laser treatment could be of some help referred him to L.V. Prasad Eye Institute in view of the fact that his clinic was not having the necessary equipment. PW1 did not go to L.V. Prasad Eye Institute immediately. After 7 months, he went there, however did not follow the instructions. Importantly, he never complained that R1 & R2 had conducted improper surgery on him. He did not even disclose the fact. At any rate, R3 who examined him did not find any negligence on the part of R1 & R2. He is an expert. No contrary evidence is furnished to refute his evidence.
21) At this juncture, it is important to note that recently the Supreme Court in Martin F.D’ Souza Vs. Mohd. Ishfaq reported in I (2009) CPJ 32 (SC) considered various aspects of medical negligence. We excerpt some of the passages from the said judgement for benefit.
34) The law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood.
35) Before dealing with these principles two things have to be kept in mind :
(1) Judges are not experts in medical science, rather they are lay men. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective, since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand, particularly in complicated medical matters, for a layman in medical matters like a Judge; and (2) A balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
36) Keeping the above two notions in mind we may discuss the broad
general principles relating to medical negligence.
General Principles Relating to Medical Negligence
37). As already stated above, the broad general principles of medical negligence have been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab and Anr. However, these principles can be indicated briefly here :
38) The basic principle relating to medical negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
“Where you get a situation which involves the use of some
special skill or competence, then the test as to whether there
has been negligence or not is not the test of the man on the
top of a Clapham omnibus, because he has not got this
special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill.
A man need not possess the highest expert skill….. It is well-established law that it is sufficient if he exercises the ordinary
skill of an ordinary competent man exercising that particular art.”
Bolam’s test has been approved by the Supreme Court in
Jacob Mathew’s case.
39) In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is stated as follows :
“The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”
(emphasis supplied)
41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free
person. An error of judgment may or may not be negligent. It depends on the nature of the error.
43. It is not enough to show that there is a body of competent professional opinion which considers that the decision of the accused professional was a wrong decision, provided there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. As Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
“In the realm of diagnosis and treatment there is ample scope for
genuine difference of opinion and one man clearly is not negligent
merely because his conclusion differs from that of other professional men…. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care….”
(emphasis supplied)
47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.
53. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be liable if he prescribes Allopathic treatment which causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332. In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National Consumer Commission held a homeopath liable for negligence for prescribing allopathic medicines and administering glucose drip and giving injections.
Finally it held “Hence Courts/Consumer Fora should keep the above factors in mind when deciding cases related to medical negligence, and not take a view which would be in fact a disservice to the public. The decision of this Court in Indian Medical Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. In fact in the aforesaid decision it has been observed (vide para 22) :-
“In the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control.”……………
The courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.
It must be remembered that sometimes despite their best efforts the treatment of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the patient dies. That does not mean that the doctor or the surgeon must be held to be guilty of medical negligence, unless there is some strong evidence to suggest that he is.
22) Coming to the facts there is no dispute that R1 & R2 are competent orthopaedic surgeons competent to conduct surgery on eyes. The complainant’s contention that R1 & R2 while conducting the operation had implanted IOL with high power lens is ex-facie false. RW3 as expert besides R1 who performed the operation had categorically denied having implanted any IOL with high power lens. The complainant could not establish that high power lens was implanted due to which he lost his eye sight. On the other hand Ex. B4 shows that PW1 was having congenital disease in both eyes, and he has been taking treatment in L.V. Prasad Eye Institute right from 11 years of age. However, when RW3 advised him to undergo some more treatment, instead, he went to R1 & R2 who conducted the surgery with a further direction to go to L.V. Prasad Eye Institute for laser treatment which he did not pursue. Though he went in March, 2006, when RW3 referred him to rehabilitation centre in the hospital for further treatment, he did not pursue. Obviously, he lost his eye sight as he himself did not take proper treatment as advised to him. For his own fault, he cannot impute negligence on the part of doctors and claim compensation. The Dist. Forum was not correct in stating that R1 & R2 ought not to have administered anaesthesia while conducting the operation which was nobody’s case. On that score compensation could not have been awarded. The Dist. Forum did not appreciate the facts in correct perspective. It did not record any finding as to why RW3 an expert’s evidence should not be given weight. PW1 did not examine any expert in order to allege that there was negligence on the part of R1 & R2. The complainant undoubtedly lost his eye sight at his tender age, however, R1 & R2 cannot be find fault for his plight for the loss of eye sight. We do not see any negligence on the part of R1 & R2 in this regard. Therefore the order of the Dist. Forum is liable to be set-aside.
23) Since we have considered the matter on merits, undoubtedly the question of jurisdiction was raised by the respondents at the threshold of the proceedings. While the respondents are residents of Hyderabad where PW1 underwent operation, he filed the complaint before the Dist. Forum at Karimnagar solely on the ground that R3 a resident of Karimnagar where the complainant resides introduced R1 & R2 to him. Obviously, this could not have been the ground on which territorial jurisdiction could be conferred. However, we may state that the respondents did not question this by way of revision. At this point of time, we do not intend to pronounce on this aspect as the very negligence could not be proved by the complainant.
24) In the result F.A. 1538/2007 is allowed setting aside the order of the Dist. Forum Dt. 25.8.2007, consequently the complaint is dismissed. As a corollary F.A. No. 422/2008 filed by the complainant is dismissed. However, in the circumstances of the case both parties are directed to bear their own costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
3) ________________________________ MEMBER
Dt. 29. 05. 2009.
