DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.96/2009

Sh. Madan Lal

R/o 303, Friends Apartment,

Kandhari Church Road,

Agra, UP

Presently residing at Flat No.137,

Vikas sheel Apartment, Sector-13,

Rohini, Delhi- 110085

….Complainant

Versus

Dr. Rajneesh Talwar

Eye Surgeon

Prop. Of M/s Talwar Eye Care,

Res.cum clinic 493, Sainik Vihar,

Delhi- 110034

        ….Opposite Party

 Date of Institution    :     28.05.2008 

 Date of Order            :    30.11.2022 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

1. The complainant has filed the present complaint seeking compensation of Rs. twenty lakhs for loss of vision, loss of business, physical and mental agony, harassment suffered by the complainant at the hands of OP. Further, the complainant is also seeking an amount of Rs. five lakhs towards cost of medicines, fees of doctors/hospital, cost of surgical treatment conveyance and miscellaneous expenses.
2.  The complainant approached the OP, Dr Rajnish Talwar on 17.03.2006 for treatment of his left eye as he was having some problem.  The complainant was diagnosed of suffering hard brown cataract in the left eye and was prescribed various medicines and advised to undergo cataract surgery.
3.  On 20.03.2006, surgery on the complainant was conducted and interocular lenses were affixed, immediately thereafter, the complainant started to feel persistent pain and decreasing of vision in the left eye.
4.  Complainant then approached the OP on 24.03.2006 and was prescribed various medicines and eye drops and was assured that the pain will subside during the normal course of time.
5.  It is the case of the complainant that the pain persisting in his left eye and the vision kept decreasing which on 13.04.2006, became zero.
6.  The complainant, having no other option consulted the OP on 14.04.2006.  The OP was advised retina damage surgery and the complainant was referred to Dr. Sanjay Khanna of Khanna Clinic, Model Town-1 for the purpose of retina damage surgery.
7.  The complainant went to Khanna Clinic, as prescribed and was given various medicines and eye drops and discharged without any advice regarding retina damage surgery.
8.  It is stated by the complainant that at that time he was advised independent expert opinion regarding loss of vision after cataract surgery on 20.03.2006.
9.  The complainant then met Dr. Harbans of Dr. Lal’s Medicare who advised on 17.04.2006 that retina of left eye was damaged and that he had to undergo retina damage surgery but was not given any assurance regarding the success of said surgery.
10.  It is stated that on 18.04.2006 complainant approached Dr. Neeraj Chadha Senior Consultant, Eye Surgeon who stated in his prescription “poor vision after cataract surgery”.
11.  It is averred by the complainant that he was told by Dr. Chadha that vision in his left eye became zero after the cataract surgery conducted on 20.03.2006 on account of the said surgery being not conducted in a proper manner and with due diligence.
12.  The complainant then approached “Centre for Sight”  where it was again advised to undergo retina damage surgery thereafter the retina damage surgery was conducted on 20.04.2006, another surgery was conducted on 25.08.2006 was discharged from “Centre for Sight”.
13. It is stated that after the aforesaid operation, the problem started in the right eye and the complainant consulted Shroff Eye Centre on 29.10.2008 so that at least vision of the one eye could be saved.
14.  It is stated by the complainant that on account of opinion of various experts “poor vision after cataract surgery, sequential retina damage and advice for retina damage surgery”, it is crystal clear that due to negligence of the OP, the retina of the complainant was damaged who is now suffering from irreparable loss.
15.  In its reply, the OP has taken preliminary objections that this Commission does not have the territorial jurisdiction to try the present case.  It is stated that the territorial jurisdiction for filing the present complaint lies with the District Forum, Shalimar Bagh, Delhi or Agra.  It is also stated that this case was registered as complaint No. “163 of 2009 Madam Lal Vs. Dr. Rajnish Talwar” before that Forum. This matter came up for hearing on 17.03.2009 before the said District Forum, Shalimar Bagh on which date the counsel of the OP has appeared and filed his Vakalatnama.  Thereafter, it is stated that neither the complainant nor his counsel appeared and the matter was dismissed for non-appearance of the complainant by the Hon’ble Consumer Forum, Shalimar Bagh.
16. On merits, the OP does not deny that the complainant’s surgery was performed, however, it is stated that it was done with due diligence and care and after having proper consent of the complainant. It is further stated by the OP that the complainant made the technical call on 12/13.04.2006 with complaint of black spots in front of his left eye and decreased vision. He was advised for immediate examination.  The complainant was then on 14.04.2006, diagnosed of retinal detachment which required a Retinal Specialist.
17. It is stated that retinal detachment is a known complication following cataract surgery.  There are 3 to 5 % incidences of retinal detachment following cataract surgery.
18. It is stated by the OP that in case there was no improvement in the vision of the complainant then it is the inexplainable why the complainant did not approach the OP for 21 days between 24.03.2006 to 14.04.2006.
19. It is stated that the present complaint has only been filed with illegal motive to grab money from the OP and that the onus to prove medical negligence is on the complainant as per the judgment of Hon’ble National Commission  in “Dr. Harkanwaljeet Singh vs. Gurmukh Singh” and “Seturaman Subramanium vs. Triveni Nursing Home 1997 (2) CPR 144” and “Dr. S. Raghunathan (Dead) vs. Vijaya Health Care 2003(1) CPR 222 NC.  It is stated that in the absence of any expert evidence to prove negligence in performance of operation, the complaint is liable to be dismissed.
20. In its rejoinder, the complainant has reiterated that he visited the OP on 24.03.2006 and apprised the OP that he has having no relief in his left eye and rather having a persistent pain. The complainant has reiterated all the events thereafter.
21. It is stated by the complainant that the OP did not take the complaint of the complainant seriously when he was well aware the damage to the retina has been caused from day one of the operation.  It is stated by him that the OP kept on experimenting with the complainant without realising the serious consequences which the complainant had to do undergo and in contrast of the faith which the complainant had reposed in the OP considering him next to God.
22. It is stated that the OP has indulged in money making business and has nothing to do with welfare of the mankind.
23. It is stated by the complainant that the allegations of the OP that this Commission does not have the territorial jurisdiction is not sustainable in view of the order dated 28.05.2008 passed by the Hon’ble State Commission of Delhi in the complaint wherein Hon’ble State Commission held that “we instead of returning the complaint, are transferring the complainant to the District Forum. The complainant shall appear before the District Forum on 09.07.2008”.
24. It is further stated by the complainant that keeping in view the order passed by the Hon’ble State Commission it was mandatory in nature, the complainant received notice of this complaint from the present District Commission whereby the complainant was directed to appear before this Forum on 09.03.2009.
25. It is stated by the complainant that reliance of the OP on “Martin F. D’souza vs. Mohd. Ishfaq” passed by the Hon’ble Supreme Court is not applicable to the present facts and that reference to a committee of doctors is required only when there is likelihood to such an error being committed by a reasonable competent professional man acting under similar circumstances. In this regard the complainant has placed its reliance on “M/s Spring Meadows Hospital vs. Harjot Ahluwalia AIR 1998 SC” and it is stated that the degree of negligence  shown by the OP while conducting cataract surgery dated 20.03.2006 speaks for itself.  It is stated by the complainant that had the OP performed his duties in diligent  and sincere manner, the complainant would not have been deprived of his vision in the left eye.
26. Both the parties have filed their respective evidences as well as written arguments. It is noticed from the material on record that though the OP is stating that the matter had come up for hearing on17.03.2009 before the District Commission Shalimar Bagh, however, it is seen that the case was received from the Hon’ble State Commission on 31.01.2009 and that both the parties were present on 09.03.2009.  It is also noticed that the record of the Hon’ble District Commission Shalimar Bagh has not been produced.
27. In the absence of such an order from the Shalimar Bagh Disputes Redressal Commission and in view of the order passed by the Hon’ble State Commission dated 28.05.2008 and order dated 10.03.2010 of this Commission,  this matter is being decided.
28. Before we go into the merits of the case, the issue of territorial jurisdiction is to be decided.
29. In the present case, neither complainant nor OP resides or works for gain within the jurisdiction of this Commission and no cause of action has arisen within the jurisdiction of this Commission, this Commission is of the considered view that this Commission does not have territorial jurisdiction to entertain this complaint and hence direct the same to be returned to be presented in court of competent jurisdiction.

One copy of the complaint be retained and other copies be returned to the complainant. Copy of the order to be provided to the parties as per rules. Order be uploaded on the website.