Haryana

StateCommission

A/1064/2017

MASTER ANKIT - Complainant(s)

Versus

M/S ASTER EYE HOSPITAL & ANO - Opp.Party(s)

ADARSH JAIN

23 Jan 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

APPEAL No.(I)

 

First Appeal No.1058 of 2017

Date of Institution:04.09.2017

                                                    Date of Decision:23.01.2020

 

1.      M/s Aster Eye Hospital, 5E/8, B.P. Railway Road, near Neelam Chowk, NIT, Faridabad-121001 through its Managing Director/ Principal Officer.

2.      Dr. Manoj Rai Mehta, Medical Officer, M/s Aster Eye Hospital, 5E/8, B.P. Railway Road, near Neelam Chowk, NIT, Faridabad-121001

….Appellants/Opposite parties.

Versus

Master Ankit S/o Shri Naresh through his father and next friend Naresh S/o Kharkan, R/o Village Machhgar, Tehsil Ballabhgarh, District Faridabad.

….Respondent/Complainant.

APPEAL No.(II)

 

First Appeal No.1064 of 2017

Date of Institution:05.09.2017

                                                    Date of Decision:23.01.2020

 

Master Ankit S/o Shri Naresh through his father and next friend Naresh S/o Kharkan, R/o Village Machhgar, Tehsil Ballabhgarh, District Faridabad.

….Appellant/Complainant.

Versus

1.      M/s Aster Eye Hospital, 5E/8, B.P. Railway Road, near Neelam Chowk, NIT, Faridabad-121001 through its Managing Director/ Principal Officer.

2.      Dr. Manoj Rai Mehta, Medical Officer, M/s Aster Eye Hospital, 5E/8, B.P. Railway Road, near Neelam Chowk, NIT, Faridabad-121001

….Respondents/Opposite parties.

 

CORAM:-            Shri Harnam Singh Thakur, Judicial Member.

                             Mrs. Manjula, Member.

 

Present:-            Shri Vineet Chaudhary, counsel for the appellants in First Appeal No.1058 of 2017 and respondents in First Appeal No.1064 of 2017.

Shri Adarsh Jain, counsel for appellant in First Appeal No.1064 of 2017 and respondent in First Appeal No.1058 of 2017.

 

O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

                   Both these appeals are being disposed of with this common order because these appeals are arising out of the impugned order dated 04.08.2017, passed by learned District Consumer Disputes Redressal Forum, Faridabad (in short “learned District Forum”)..

2.                Briefly stated, the facts narrated in the complaint are that the complainant sustained pencil injury in his left eye on 18.10.2014 and was admitted in the hospital of opposite party No.1 (in short “OP No.1”) for treatment. OP No.2 conducted surgery of left eye of complainant and complainant paid Rs.36,000/-. After said surgery, complainant felt that his eye sight was decreasing day by day so he again visited the Ops but they refused to attend the complainant. Thereafter, complainant visited All India Institute of Medical Sciences, New Delhi (AIIMS) on 03.12.2014, where the doctors found that OP No.2 had not operated the complainant properly as some pencil lid was left in the left eye of complainant and complainant spent approximately Rs.1,00,000/- on his treatment. Due to negligence on the part of Ops, complainant became permanently handicapped and loss of left eye sight. Thus, there was deficiency in service on the part of OPs.

3.                Complaint was resisted by the OPs by filing of written versions by OPs before learned Forum.

4.                OPs in their written version submitted that the Ops were insured with United India Insurance Company. It was further submitted that OP No.1/hospital had been closed at the address given in the complaint, however OP No.2 was running hospital in the name of Dr. Mehta Eye Care, Faridabad. It was further submitted that an amount of Rs.36,000/- was charged from the attendant of complainant on account of professional fee including general anesthesia, surgery and day care charges and OP No.2 operated the complainant and surgery was conducted for closure of corneal perforation as well as reconstruction of eye. The entire process of surgery was shown live through CCTV to all attendants. It was further submitted that the complaint was frivolous, false and after through as well as complaint was also bad in law as Shri Pawan had claimed father of Master Ankit as per record of the hospital. Thus, there was no deficiency in service on the part of Ops.

5.                After hearing both the parties learned District Forum allowed the complaint of complainant vide order dated 04.08.2017 and directed as under:-

“Opposite parties No.1 & 2 jointly & severally are directed to refund the amount of Rs.36,000/- charged from the complainant alongwith interest @ 9% p.a. from the date of its payment till its realization and to pay Rs.10,00,000/- as compensation for mental tension, agony as well as harassment besides Rs.5100/- towards litigation expenses to the complainant within 30 days from the date of receipt of this order.”

 

6.                Feeling aggrieved therefrom, opposite parties have preferred the appeal No.1058 of 2017 for dismissal of the complaint of complainant and complainant has preferred the appeal No.1064 of 2017 for enhancement of compensation as awarded by learned District Forum.

7.                Arguments have been advanced by Shri Vineet Chaudhary, counsel for the appellants in First Appeal No.1058 of 2017 and respondents in First Appeal No.1064 of 2017 (hereinafter referred as “appellants”). Shri Adarsh Jain, counsel for appellant in First Appeal No.1064 of 2017 and respondent in First Appeal No.1058 of 2017(hereinafter referred as “cross appellants”).

8.                During the course of arguments, it is contended by learned counsel for the appellants that learned District Forum has erred while holding the medical negligence on the part of appellant by granting compensation to the cross appellant/complainant. Learned District Forum while passing the impugned order has not appreciated that cross appellant/complainant was suffering serious injury in the left eye and attendant of the complainant was specifically told that there was delay in bringing the complainant/patient after a few days after the incident of injury on left eye, who was hit by another child in the school. Consent letter Ex.RW-1/2 was duly signed by the complainant’s father as there was risk of blindness in the left eye due to the injury by a pencil. So, ultimately, surgery for closure of corneal perforation and reconstruction of eye was conducted successfully by the appellants and eye was shown to the attendants live through CCTV. Attendants were also told that the chances to save the eye were minimal and they were explained prognosis (the likely course of a medical condition) in detail.

9.                It is further argued by learned counsel for the appellants that appellant No.2 is a competent and expert eye surgeon, who has performed thousands of eye surgeries and there is no evidence of medical negligence available on record. In support of his case, learned counsel for the appellants has placed reliance upon in case titled as:-

(i)      “Atul Mishra (Dr.) & Anr. Vs. K.C. Jain IV (2009) CPJ, 119”.

(ii)     “Abdul Gaffar (Tailor) Vs. Dr. Dinesh Sharma & Anr. II (2010) CPJ, 439”.

(iii)    “Sharwan Kumar Vs. Ganga Ram Hospital & Anr. IV (2011) CPJ 315 (NC)”.

(iv)    “Ushashi Mukhaerjee & Anr. Vs. Coal India Ltd. & Ors., IV (2009) CPJ 56 (NC)”.

 Lastly, it is argued by learned counsel by the appellants that there is an insurance policy Ex.RW-1/1, but the insurance company was not impleaded as a party. This fact          was also brought into the notice of learned District Forum in the written statement. Hence, it is submitted by learned counsel for the appellants that impugned order passed by learned District Forum be set aside by accepting the appeal preferred by the appellants.

10.              On the other hand, it is contended by learned counsel for the cross appellant/complainant that although, learned District Forum has granted compensation of Rs.10,00,000/-(Rs. Ten lacs) for mental tension, agony as well as for harassment besides Rs.5100/- (Rs. Five thousand one hundred)  towards the litigation expenses and ordered to refund an amount of Rs.36,000/- (Rs. Thirty six thousand) alongwith interest at the rate of 9% p.a. from the date of payment till realization. The amount of compensation for mental tension, agony as well as for harassment is on the lower side. Complainant has lost eye sight of left eye and became handicapped to the extent of 50% due to negligence of appellants. The tip of pencil lid  lying inside the left eye of the complainant/ cross appellant, had not been removed by the respondents and for this negligence complainant/cross appellant had to get further treatment from All India Institute of Medical Science, New Delhi (in short “AIIMS”), where an amount of Rs.1,00,000/- has been spent to remove the tip of pencil lid. Hence, it is submitted by learned counsel for the cross appellant/complainant that appeal filed by the appellants is without any merits, whereas cross appeal filed by the complainant/cross appellant be accepted and amount of compensation be enhanced to Rs.15,00,000/- and litigation expenses to the tune of Rs.51,000/- by accepting his appeal.

11.              After hearing both the parties and careful perusal of record of learned District Forum as well as authorities relied upon before this Commission, we are of the considered view  that both the appeals are without merits. So far as the appeal (No.I) preferred by M/s Aster Eye Hospital and Dr. Manoj Rai Mehta is concerned, the main plea taken by learned counsel for the appellants is that medical negligence is not proved at all. However, this contention of learned counsel for the appellants is without any legal force because admittedly, the complainant received injury on his left eye with tip of pencil lid by other child in the school. So, complainant was operated by opposite party No.2 in the hospital of opposite party No.1, but despite that injury could not be recovered and ultimately the complainant was taken to AIIMS, where he was again operated on 05.12.2010 in AIIMS, Delhi. It is evident from the medical record of AIIMS (Ex.P-10) that after surgery, foreign body from the left eye of complainant was removed and complainant lost vision of his left eye in the age of 09 years. No doubt there is no expert opinion regarding medical negligence, but it is amply clear from the medical record of AIIMS that appellant No.2 Dr. Manoj Rai Mehta failed to remove the tip portion of pencil lid, which was inside the left eye of complainant. This fact speaks volumes about the medical negligence on the part of appellant No.2. Thus, the authorities (i)          “Atul Mishra (Dr.) & Anr. Vs. K.C. Jain IV (2009) CPJ, 119” (ii)      “Abdul Gaffar (Tailor) Vs. Dr. Dinesh Sharma & Anr. II (2010) CPJ, 439” (iii)    “Sharwan Kumar Vs. Ganga Ram Hospital & Anr. IV (2011) CPJ 315 (NC)”  (iv) “Ushashi Mukhaerjee & Anr. Vs. Coal India Ltd. & Ors., IV (2009) CPJ 56 (NC)”. (Supra) relied upon by learned counsel for the appellants are not applicable to the facts and circumstances of the case in hand because when apparently the medical negligence is established while not removing the broken tip of pencil lid of complainant by the opposite party No.2. So, there is no need of any expert opinion. Learned District Forum has rightly placed reliance upon case titled as “V. Krishna Rao Vs. Nikhil Super Specialty Hospital & Anr.” Reported in III (2010) 1 SC, wherein it has been held that in most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the For a is not bound in every case to accept the opinion of the expert witness.

12.              Similarly, the other contention of learned counsel for the appellants that complainant’s father has given consent for surgery is also devoid of any legal force because consent never means that doctor should handle the patient carelessly and negligently.

13.              More so, the last contention of learned counsel for the appellants that United India Insurance Company was not impleaded as a party in the present complaint also does not hold water because this insurance contract was between the appellants and insurance company and complainant was not knowing this fact of contract between the parties. Moreover, no application under Order 1 Rule 10 CPC for impleading the insurance company as a party moved by the appellants. If at all, there is such valid policy between the appellants and United India Insurance Company, then no prejudice is caused to the appellants because they are at liberty to recover the said amount of compensation granted to the complainant from the insurance company, if advised so.

14.              So far as cross appeal preferred by the complainant is concerned, it is also bereft of substance because cross appellants/complainant has failed to prove that Rs.1,00,000/- has been spent by him while conducting the second surgery in AIIMS. No case for enhancement of compensation is made out as learned District Forum has already granted just fair and reasonable compensation for expenses, mental harassment, agony and litigation expenses.

15.              As a sequel to the above discussion, we do not find any illegality in the findings of impugned order passed by learned District Forum. So, both the appeals are dismissed being devoid of any merits.

16.              Statutory amount of Rs.25,000/- deposited at the time of filing of the appeal bearing No.1058 of 2017 be refunded to the cross appellant (complainant) against proper receipt and identification as per rules after the expiry of period of limitation for filing of appeal or revision, if any.

 

January,  23rd, 2020             Manjula                        Harnam Singh Thakur                                                        Member                        Judicial Member                                                                 Addl. Bench                 Addl. Bench

R.K

 

 

F.A. No.1064 of 2017

 

 

Present:-  Shri Adarsh Jain, counsel for the appellant.

                           Shri Vineet Chaudhary, counsel for the respondents.

 

                   Vide separate order of the even date in First Appeal No.1058 of 2017, present appeal is also dismissed.

 

 

January,  23rd, 2020             Manjula                        Harnam Singh Thakur                                                        Member                        Judicial Member                                                                 Addl. Bench                 Addl. Bench

R.K