IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE       7^th   DAY OF DECEMBER 2022

Present: -         Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

            Smt.S.Sandhya   Rani. Bsc, LLB ,Member

            Sri.Stanly Harold, B.A.LLB, Member

    CC.No.133/2022

Rejani Sivakumar,W/o Sivakumar,

Puthenvila Veedu, Alimukku,

Vettithitta P.O., Punalur, Kollam                                           :           Complainant

V/s

1. Mr.Saifudeen,  Administrator,

          Bharat Eye Care & Surgery Centre,

         Power House Junction,

           Panamkuttimala, Punalur, Kollam                               :  Opposite parties

2. Dr.Veena,

         Bharat Eye Care & Surgery Centre,

        Power House Junction,

        Panamkuttimala, Punalur, Kollam

ORDER

Smt.Sandhya Rani, B.Sc, LLB, Member

          This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.

          The averments in the complaint in short are as follows:-

          On 07.05.2021 the complainant has approached the opposite party for testing her vision and changing spectacle.  After examining her eye by, the 2^nd opposite party doctor who was employed in the 1^st opposite party clinic Bharath Eye Care and Surgery Centre at Panamkuttimala, Punalur, suggested some medicines to the complainant and advised her to book for a new lens and frame.  Accordingly she has paid Rs.4,000/- as advance to the 1^st opposite party and she was directed to pay the balance amount Rs.5,000/- at the time of delivery of the lens and frames.  Though the 1^st opposite party assured that the lens would be given within one week, complainant had to wait for more than one month to get the same.  That on 11.06.2021 when she approached the 1^st opposite party for receiving the lens, she was directed to pay Rs.4,500/- instead of Rs.5,000/-, by providing a reduction of Rs.500/-.  But when the complainant started using the lens she felt some sort of discomfort that the lens was not suitable for her vision and reading purpose.  Thus the complainant approached the 1^st opposite party, after testing the lens the 2^nd opposite party advised her to use the lens continuously for one week, then the lens  would get adjusted with her vision.  But there was no change in her vision problem even after one week continuous using as directed by the 2^nd opposite party doctor.  Again the complainant has approached the 1^st opposite party for a recheck at that time the 1^st opposite party taken back the specs from the complainant and returned her by making her to believe the complainant that they have changed the lens but the same vision problem and connected discomforts were persisted.  Thereafter the complainant approached another eye specialist and conducted vision and lens power test there and found that the complainant had required the lens with a power of 2 diapers instead of 2.25 diapers used by her earlier.  According to the complainant the eye power test conducted by the 2^nd opposite party was without proper application of mind and who had erroneously came to the conclusion that the complainant needed lens with power of 2.25 diapers instead of 2 diapers diagnosed by a second opinion.  That the said mistake was happened only due to the professional incompetence, lack of expertise and lack of  application of mind of 2^nd opposite party.  Even though the complainant has approached the opposite parties to get it replaced the lens with power of 2.25 diapers or to return the price of the lens, they were not only willing but also have taken a recalcitrant attitude towards the complaint.  Thus the complainant was constrained to suffer the loss due to deficiency in service from the part of 2^nd opposite party and unfair trade practice adopted by the 1^st opposite party.  Due to the above mentioned irresponsible and unprofessional act on the part of opposite parties the complainant had to suffer much mental agony and a loss of Rs.8,500/- in addition to the incidental expenses for eye testing in another eye care hospital.  Thereafter the complainant had issued lawyer notice to the opposite parties on 15.07.2021 by demanding the value of the spectacle, hospital, expenses and compensation.  Though they have received the notice they have neither sent any reply nor complied with the demands made by the complainant.  Hence the complaint.

          Though notice was issued to the opposite parties they have not appeared before this commission hence they were set exparte.  The complainant filed proof affidavit by reiterating the averments in the complaint and got marked          Ext.A1 series, A2 to A6 documents.  Heard the counsel for the complainant and perused the records.  Ext.A1series are the cash bills dated 07.05.2021 issued by Bharath Eye Care and Surgery Centre.  Ext.A2 is the spectacle details dated 07.05.2021 issued by Bharath Eye Case and surgical centre.  Ext.A3 is the prescription of Dr.Anu Anna Paul dated 02.07.2021 issued by Royal Eye Clinic & Opticals.,  Ext.A4 is the photocopy of Ext.A2.  Ext.A5 is the photocopy of Ext.A3 and Ext.A6 is Advocate notice.

          The unchallenged averments in the affidavit coupled with Ext.A1 series A2 to A6 documents would establish the case of the complainant that on 07.05.2021the complainant had paid an advance amount Rs.4,000/- with 1^st opposite party Bharath Eye Care and Surgery Centre for getting lens and frame worth Rs.5,000/- after consultation with 2^nd opposite party doctor of the said eye care centre.  Ext.A1(a) cash bill indicates that the complainant had paid the Rs.4,000/- by way of advance for the lens with power 2.25 diapers and the Ext.A1(b) cash bill produced evidencing that the complainant had purchased medicine worth Rs.923/- from 1^st opposite party eye care centre as per the prescription of 2^nd opposite party doctor on the same day 07.05.2021.  Though the 1^st opposite party had assured the complainant that she would get the booked lens and frame within one week, she has received the same only on 11.06.2021 after one month of its booking.  While paying the balance amount the 1^st opposite party was directed to pay only Rs.4,500/- instead of Rs.5,000/-, that she was given a reduction of Rs.500/-.  But when she started using the lens the complainant could realize that the lens was not suitable for her clear vision and reading purpose.  When the complainant approached the 2^nd opposite party and complained of the vision problem, the 2^nd opposite party advised her to use the lens continuously for one week even then there was no change with her vision problem.  Again the complainant approached the opposite parties with the same complaint then the 1^st opposite party taken back the specs and made believe the complainant that the lens was replaced so that would be suitable for better vision.  But she didn’t felt any improvement in her eye site.  Thereafter the complainant approached another eye specialist Dr.Anu Anna Paul at Royal eye clinic and opticals at Punalur.  Ext.A3 prescription produced would indicate that Dr.Anu Anna Paul has prescribed lens with power of 2 diapers to the complainant and since the use of specs with lens power of 2 diapers as advised by the above said doctor, all her inconveniences in connection with her eye vision was cured.  By examining the power of the lens used by the complainant the above said Dr.Anu Anna Paul found that the complainant would have required the lens with power of 2 diapers instead of 2.25 diapers as advised by 2^nd opposite party.  Through the above second opinion made by Dr.Anu Anna Paul it would realize that the complainant had required eye lens with power of 2 diapers.  Instead of using lens power 2 diapers the 2^nd opposite party has suggested lens with 2.25 diapers to the complainant.  The above mentioned acts on the part of 2^nd opposite party establish the case of the complainant that there exists professional incompetence, lack of expertise and lack of application of mind which amounts to deficiency in service and unfair trade practice on the part of 2^nd opposite party doctor as well as the 1^st opposite party eye care centre.  It is clear from Ext.A6 advocate notice that though the complainant had demanded Rs.8,500/- being the price of the specs and hospital expense and Rs.50,000/- by way of compensation to the mental agony sustained by her, the opposite parties didn’t respond to the notice.  As far as Doctors are concerned correct diagnosis and correct prescription of medicines are very important and the defect in diagnosing of diseases and prescribing defective medicines etc are treated as grave dereliction of duties.  In this case the 2^nd opposite party doctor has failed in diagnosing the correct power point of lens which the complainant needed to improve her eye vision.  That the continues use of defective power lens may cause the reason for loosing vision itself. Moreover the opposite parties in this complaint had sufficient opportunity to realize their defects and rectify the same in an amicable way when they have received Ext. A6 notice.  But the opposite parties didn’t take any initiative to rectify their defects.  That by prescribing and issuing defective power lens having 2.25 diapers instead of giving power lens having 2 diapers to the complainant both of the opposite parties are jointly and severally liable for the above mentioned deficient and unfair acts from their part.  In the circumstances we are of the view that there is deficiency in service and unfair trade practice on the part of opposite parties         1 and 2.

          In the result the complaint stands allowed in the following terms.

1. The opposite parties 1 and 2 are directed to refund Rs.8,500/- along with interest @ 9% per annum from 20.04.2022 onwards.
2. The opposite parties 1 and 2 are directed to pay Rs.10,000/- by way of compensation for the mental agony sustained by the complainant.
3. The opposite parties 1 & 2 are directed to pay costs Rs.3,000/- to the complainant.
4. Opposite parties 1 & 2 are directed to comply with the above direction within 45 days from today failing which the complainant is at liberty to recover the amount covered by relief No.(a) and (b) with interest @ 12% per annum along with costs from opposite parties 1 & 2 jointly and severally and from their assets.  

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 7^th  day of  December 2022.                                                                    

S.SANDHYA RANI:Sd/-

E.M .MUHAMMED IBRAHIM:Sd/-

                                                                              STANLY HAROLD:Sd/-

                                                              Forwarded/by Order       

                                                       Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1   series      : The cash bills dated 07.05.2021 issued by Bharath Eye Care

                            and Surgery Centre.

Ext.A2                   : The spectacle details dated 07.05.2021 issued by Bharath Eye Case and surgical   centre. 

Ext.A3                   : The prescription of Dr.Anu Anna Paul dated 02.07.2021 issued by Royal Eye Clinic & Opticals.

Ext.A4                   : Photocopy of eye testing result

Ext.A5                   : Advocate notice

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil