KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.121/2023

JUDGEMENT DATED: 07.06.2024

(Against the Order in C.C.No.358/2016 of CDRF, Kannur)

PRESENT:

APPELLANT:

(by Advs. Shyam Padman & S. Reghu Kumar)

Vs.

 RESPONDENT:

(by Adv. Sriram R.B.)

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

          The opposite party in C.C.No.358/2016 is in appeal challenging the final order dated 03.11.2022 of the Consumer Disputes Redressal Commission, Kannur (the District Commission for short) allowing the complaint and granting compensation to the complainant.  The respondent herein is the complainant before the District Commission.

          2.       As per the order in appeal, the appellant herein has been directed to pay an amount of Rs.1,00,000/-(Rupees One Lakh only) as compensation for the physical and mental hardships caused to the complainant, along with medical expenses of Rs.21,500/-(Rupees Twenty One Thousand Five Hundred only), for the deficiency in service on the part of the appellant.  A further amount of Rs.10,000/-(Rupees Ten Thousand only) has been awarded as costs of the proceedings.

          3.       The appellant has filed this appeal, aggrieved by the said order.  For the sake of convenience, the parties shall be referred to hereinafter in accordance to their status before the District Commission.

          4.       According to the complainant, he had approached the opposite party with some problems in his eye.  On 13.05.2015 he was seen by the opposite party and was advised to have laser treatment.  He was assured that following the laser treatment, complete vision would be obtained.  Rs.5,000/-(Rupees Five Thousand only) was deposited as fee and surgery was conducted by the opposite party on his left eye on 30.10.2015 itself.  After surgery, the complainant felt some discomfort and pain in his left eye which he had brought to the notice of the doctor.  But the doctor did not give much importance to it and told him that the discomfort would subside after some time and discharged him on the same day.  He was advised to come for a review after one week.  The left eye was covered with bandage.

          5.       On the next day of the surgery, the complainant felt unbearable pain which he informed the opposite party over phone.  He was told that he would feel better after a day and advised him to visit him on 06.11.2015.  On 06.11.2015 when he reached the hospital of the opposite party, he was diverted to another doctor in the Eye Care Centre, Dr. Sreelatha.  When the said doctor examined him, his eye was red in colour and full of puss.  The doctor who examined him prescribed an eye drops and advised him to come for review on 16.12.2015.  The opposite party did not give any importance to the complainant’s condition.  Though the complainant felt severe pain in his left eye, the opposite party did not examine him.  On 16.12.2015 when he insisted on meeting the opposite party for further treatment, it was noticed that the red colour and puss in the eye had increased.  However, an eye drop was administered, the eye was bandaged and he was advised to return for review after ten days. 

          6.       As advised, the complainant again went to the hospital after ten days.  but he was seen by another consultant.  On 19.12.2015 the opposite party examined the complainant’s eye and changed the medicines.  But, his condition became worse and therefore, he was referred to the Aravind Eye Hospital, Coimbatore.

          7.       From Aravind Eye Hospital the complainant came to know that the opposite party had been negligent in treating him and that his left eye sustained injury during the surgery conducted at the opposite party hospital. According to him, he lost the vision of his left eye due to negligent treatment of the opposite party and he had to spent huge amounts for his treatment at Aravind Eye Hospital.

          8.       On 30.04.2016 he issued a notice to the opposite party through his lawyer claiming Rs.3,00,000/-(Rupees Three Lakhs only) as damages.  However, the opposite party caused the issue of a reply notice putting forward false contentions.  Therefore, he approached the District Commission by filing the complaint.

          9.       The District Commission admitted the complaint and issued notice to the opposite party.  On receipt of notice, the opposite party entered appearance and contested the case by filing version contending as follows:

          According to the opposite party, he is an eye specialist conducting a hospital by name Jyothis Eye Care at Kannur.  He is the Chief Medical Officer of the hospital.  On 13.10.2015 the complainant had come to the hospital with some problems in his left eye.  He was examined by Dr. Sreelatha who was a Senior Consultant.  He complained of defective vision and on examination, it was noted that eye surgeries had been conducted to both his eyes and intra-ocular lens implantation had been done, five years prior to his visit.  He had corneal opacity in both eyes.  The corneal opacity was assessed to be of long standing duration traceable as consequence of an old viral infection.  His vision recorded at that time even with glasses was 6/18P for his right eye and 6/9P for the left eye (which shows inability to read last three lines with the right eye and last one line with the left eye).  After examination, he was prescribed medicines and was asked to return for a review after three weeks.

          10.     On 3010.2015 the opposite party examined the patient and noted that his vision was decreasing and was only 6/18P in both eyes. He was found to have branch retinal vein occlusion to blockage of one of the branches of the retinal vein in right eye and thickening of the posterior capsule behind the lens in the left eye.  In view of the progressive diminishing vision, the opposite party advised OCT (Optical coherence tomography) to rule out any other pathology in the retina and the OCT did not show any pathology.  So the patient was advised Yag Capsulotomy left eye, i.e. cutting off the thick posterior capsule with laser rays in the left eye. 

11.     According to the opposite party, before the said procedure, the complainant was informed about the pros and cons of the Yag Capsulotomy and explained the risk, complications and guarded prognosis.  The complainant is stated to have consented to undergo the procedure, fully aware that it was not a surgery as meant in common parlance and that due to inherent disease condition and prognosis the procedure may not be effective in improving the vision, in some cases.  The said procedure was done free of cost and does not require bandage application to the eye.  The patient was asked to come after one week for follow up review.  The patient was examined by Dr. Sreelatha when he came for review.  She noted epithelial defect in the left eye and bandage contact lens was given for symptomatic relief.  Medicines were also prescribed.  The complainant reported for follow up on 16.11.2015 and again consulted
Dr. Sreelatha.  The patient conveyed that he was feeling better and on examination, epithelial defect was seen healing.  The patient again came for review consultation on 09.12.2015 and was seen by the opposite party.  Secondary infection was noted at the epithelial defect and treatment was reinforced.  On 11.12.2015 when the patient again came for review it was found that the infection was not responding to treatment.  It was also found that the infection was moving into the deeper layer of the cornea.  Therefore, he was referred to the Aravind Eye Hospital, Coimbatore for second opinion.

12.     It is the case of the opposite party that he had treated the complainant with due diligence and care on the basis of proper diagnosis and the problem caused to the complainant was attributable to the disease condition and its guarded prognosis.

13.     The parties went to trial on the above pleadings.  The complainant examined himself as PW1.  Dr. Sreelatha who had examined and treated him was examined as PW2.  The opposite party examined himself as DW1.  Dr. Arjun V., Medical Officer of the Aravind Eye Hospital was examined as DW2.  On the side of the complainant, Exhibits A1 to A10 documents have been marked and on the side of the opposite party Exhibits B1 to B10 have been marked.  No expert evidence was adduced by the complainant in support of his allegations.

14.     After the close of evidence, the District Commission heard the respective counsel and passed the order against which this appeal has been filed.  The District Commission found that at the time when the complainant consulted the opposite party for the first time, the vision in his left eye was better than that in his right eye.  Finding that the complainant was suffering from a complication of cataract surgery, known as posterior capsule opacification  (PCO), Yag Capsulotomy procedure was done on him.  Soon after the said procedure, the complainant developed redness in his left eye.  However, he was examined by Dr. Sreelatha.  The omission on the part of the opposite party to examine the complainant when he approached the hospital with complication in his eye has been considered to be a lack of care on the part of the 1^st opposite party.  On examination, Dr. Sreelatha noted epithelial defect in the left eye and bandage contact lens was given for symptomatic relief.  He was also prescribed medicines.  Later, on 16.11.2015 when the patient consulted Dr. Sreelatha, he conveyed that he was feeling better.  It was found on examination that the epithelial defect was healing.  It was in the above circumstances that, on 09.12.2015 the opposite party examined the patient and noted secondary infection at the epithelial defect and treatment was reinforced.  But, on 11.12.2015 when the patient came for review consultation, it was found that the infection was not responding to the treatment and that the infection was spreading into the deeper layers of the cornea.  Therefore, he was referred to Aravind Eye Hospital for further treatment.

15.     The District Commission finds lapses on the part of the opposite party in providing proper treatment to the complainant and comes to the conclusion that, the loss of vision in the left eye of the complainant was a direct consequence that followed the Yag Capsulotomy procedure performed by the opposite party on the complainant.  On the above grounds, deficiency in service has been found on the part of the opposite party.  Therefore, the opposite party has been held liable to compensate the complainant.  Accordingly, opposite party has been directed to pay a compensation of Rs.1,00,000/-(Rupees One Lakh only) for the physical and mental hardship caused to the complainant, to pay the amount of Rs.21,500/-(Rupees Twenty One Thousand Five Hundred only) incurred by him as expenses for his treatment and to pay a further amount of Rs.10,000/-(Rupees Ten Thousand only) as costs of the proceedings.  Aggrieved by the said order, the opposite party filed this appeal.

16.     We have heard the counsel appearing for the respective parties, elaborately.  We have also carefully perused the lower court records of the case called for and produced before us.  We have bestowed our anxious consideration to the contentions advanced before us.  The question that arises for consideration in this appeal is:

“Whether the opposite party was negligent in providing medical care and treatment to the complainant”?

17.     According to the counsel for the appellant, there is no evidence available in this case to support the contention of the complainant that there was negligence in the treatment that was provided to him by the opposite party.  No evidence of any error or shortcoming in the treatment provided by the opposite party has been adduced or placed on record by the complainant.  The opposite party has followed the standard medical procedure in treating the complainant and the treatment was given taking all necessary care.  The opposite party cannot be blamed for the only reason that vision in the left eye of the complainant had diminished.  The cause for the loss of vision was an infection, viral keratitis from which the complainant had been suffering earlier.  Such infection could recur at any time again, without any reason.  Exhibit A7 issued by Aravind Eye Hospital specifically mentions that there was no injury to the complainant’s eye.  Therefore, it is contended that no injury had been caused by the procedure, Yag Capsulotomy that was provided to the complainant. 

18.     According to the learned counsel, the complainant had problem in both eyes even at the time of his first visit.  He he was found to have branch retinal vein occlusion to the blockage of one of the branches of the retinal vein in the right eye and thickening of the posterior capsule behind the lens in the left eye.  He was also found to have progressive diminishing vision.  In the absence of any evidence to show that there was negligence or lack of care on the part of the opposite party in a specific aspect of the treatment provided by him, it is contended that no liability could be fastened on the opposite party.  The opposite party could not be made liable for the only reason that the vision of the complainant in his left eye had diminished after the Yag Capsulotomy procedure.  No expert evidence to show that there was any error or lack of care in the conduct of the said procedure is available.  Therefore, the opposite party could not be blamed for the loss of vision of the complainant.  The Hon’ble Supreme Court has held that a doctor cannot be blamed for the only reason that the patient had died.  There should be evidence of negligence on the part of the treating doctor before any liability could be fastened on him.  The District Commission has therefore erred in making the opposite party liable to compensate the complainant for the only reason that the vision in the left eye of the complainant had diminished.

19.     The contentions of the appellant are met by the counsel for the respondent pointing out that no error has been committed by the District Commission in finding negligence on the part of the opposite party and awarding compensation.  All the material aspects have been considered elaborately by the judgement appealed against and therefore, no interference therewith is either called for or warranted.  The complainant who was a senior citizen and a person who had undergone an intra ocular lens implant surgery for his cataract condition five years prior to his first consultation had approached the opposite party complaining of vision problems.  The medical records show (Exhibit A1) dated 13.05.2015 that the vision in his right eye was 6/18P with glasses and 6/24P without glasses.  In his left eye, the vision was 6/9P with glasses and 6/18P without glasses.  The reason for his lack of vision was diagnosed as PCIOL (Posterior Chamber Intra Ocular Lens Thickening).  The said clinical diagnosis has been recorded in Exhibit A1.  It was to treat PCIOL that the procedure, Yag Capsulotomy was done.  The complainant expected that his vision would improve after the said procedure.  But, his vision did not improve.  Instead, fresh complications started occurring.  He had complained of discomfort in his left eye immediately after the Yag Capsulotomy.  But according to him, the opposite party did not take it seriously.  The complainant was sent home assuring him that the said discomfort would subside and disappear.  But, his condition only worsened.  He developed redness in both eyes.  He had complained about the said developments over telephone to the opposite party but he asked the complainant to wait.   When he came for the next review, he was seen by Dr. Sreelatha who prescribed medicines and eye drops.  It was only after a month on 09.12.2015 that the opposite party had seen him.  At that time secondary infection was noted in his eyes and medicines were prescribed.  It is stated that since epithelial defect was noticed, the treatment was reinforced.  On 11.12.2015 when the patient again came for consultation, it was found that he was not responding to the medicines and that the infection was going into deeper layer of Cornea. 

20.     In the above circumstances, he was referred to the Aravind Eye Hospital, Coimbatore.  He had to incur additional expenditure for his treatment there.  But even the treatment there could not save him and he lost his vision in the left eye.  His vision has reduced to merely recognition of hand movements.  It is clear from the sequence of events, that the vision of the complainant had only diminished with the treatment provided by the opposite party.  Despite the steady reduction in the vision in the left eye of the complainant, no serious effort was taken by the opposite party to either control or contain the infection.  Therefore, the District Commission was fully justified in making the opposite party liable for the lapses in his treatment and ordering payment of compensation to the complainant. The counsel therefore seeks dismissal of the appeal.

21.     It is no doubt true that the complainant who is a senior citizen had lost his vision in the left eye.   However, what requires to be enquired into is whether such loss of vision is attributable to some negligence in the treatment provided by the opposite party.  In the first place, it is necessary to notice that no expert evidence is available in this case.  No expert has examined either the complainant or the records relating to his treatment and ascertained whether there was any negligence in the treatment provided to him.  The Supreme Court has cautioned the adjudicatory authorities repeatedly not to cast liability on a medical professional for the only reason that a patient had suffered an adverse consequence as a result of the treatment provided by the doctor.  It has been emphatically laid down that specific allegation regarding the nature of the negligence alleged and an identification of the particular procedure to which such negligence was attributable also has to be established by acceptable expert evidence.  In Chanda Rani Akhouri (Dr.) & Ors. Vs M.A. Methusethupathi (Dr.) & Ors. II (2022) CPJ 51 (SC) where the husband of the appellant had died after a long period of illness, appellant no.1 along with her children had initiated legal proceedings against the doctor alleging that the death of her husband was due to post operative medical negligence and follow up care.  This was a case where the husband of the 1^st appellant had undergone a kidney transplantation surgery conducted by Dr. Methusethupathi.  He was a Surgeon with high reputation of having conducted 900-1000 renal transplants with good results.  But there were cases where the patients had died even after successful kidney transplants for various reasons which are not under the control of the doctors.  Despite all post operative medical treatment and care of the patient, he passed away on 03.02.1996.  After considering the rival contentions put forward, the Apex Court has held as follows:

“The doctors are expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis.  At the same time no evidence has come on record at the behest of the appellants which in any manner could demonstrate that it was a case of post-operative medical negligence or follow up care on the part of the treating doctors and both the doctors who have recorded their statements on behalf of the appellants, Dr. Ashok Chopra and Dr. Sophia Ahamed are not expert doctors in the field of kidney transplantation.  Merely because they are doctors by profession, what is being expressed by both of them in the affidavits filed before the Commission would not be an opinion of experts”.

22.     On the above reasoning, the appeal was dismissed by the Supreme Court.  In the above case, though doctors had been examined to let in expert evidence, the court found such evidence to be insufficient since they were not experts in the particular procedure, kidney transplantation.  In Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 SCC 1 which is the basic decision dealing with the medical negligence in respect of medical professionals prophesying special skills it has been held as follows:

“Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution.  But there could be no assurance of the result.  No doctor would assure a full recovery in every case.  At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task he would exercise his skills to the best of his ability and with reasonable competence”.

Therefore, a liability would arise only if – either a doctor did not possess the requisite skills which he professed to have possessed or he did not exercise with reasonable competence in given case the skill which he did possess. 

          23.     In Dr. Harish Kumar Khurana Vs. Joginder Singh and Ors. (2021) 10 SCC 291 the Apex Court has held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances.  However, in an unfortunate case death may occur.  It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that death was due to medical negligence.  Even death of a patient cannot, on the face of it, be considered to be medical negligence. 

          24.     In a recent decision, Prakash Bang Vs. Glaxo Smithkline Pharmaceuticals Ltd. & Anr. I (2024) CPJ 16 (SC) the Apex Court has reiterated that, the onus to discharge the initial burden was heavy on the appellant to establish his case in facts of present nature.  Neither affidavit of doctors who had subsequently treated appellant with specific reference to shoulder pain has been filed nor has the doctor who has filed affidavit indicated any reference in medical terms or with regard to his medical research on subject to place it on affidavit that vaccination was the cause due to which appellant had suffered Miosytis and had led to disablement as stated by the appellant seeking compensation.  In short, before liability on the ground of medical negligence could be fastened on a doctor, there has to be clear and cogent evidence with respect to the act of the negligence alleged. 

          25.     In the light of the above exposition of the law on the point, it is necessary to examine the evidence in the above case to find out whether the complainant had succeeded in proving that there was medical negligence on the part of the opposite party/the appellant herein.  It is not in dispute that the opposite party had treated the complainant.  The complainant had approached the opposite party’s hospital for the first time on 13.10.2015.  On that date, he was examined by Dr. Sreelatha Vinod.  She has checked the vision of the complainant in both eyes and recorded the same.  Without glasses, his vision in the right eye was 6/24P and 6/18P and in the left eye it was 6/18P without glasses.  Exhibit A1 is the treatment record of the said date.  The clinical diagnosis noted therein is PCIOL.  It has also been recorded that he had corneal opacity.  The fact that an IOL implant has been done prior to the said date is also seen recorded.  It was thereafter that the opposite party was consulted on 30.10.2015.  The treatment record is Exhibit A2.  It is seen noted therein that the complainant had side vision defect in both eyes, redness in left eye and the clinical diagnosis is PCIOL.  In order to rule out any pathology OCT (Optical Coherence Tomography) was done.   Since OCT did not reveal any pathology, Yag Capsulotomy was done to the left eye of the complainant.  The Yag Capsulotomy was a procedure that is performed on patients with PCIOL, which is only cutting off the thick posterior capsule with laser rays in the left eye.  The allegation of the complainant is that, he sustained injury in the left eye in the course of the said procedure, which he has misunderstood to be a surgery.  Yag Capsulotomy is not a surgery in medical terms and is a painless procedure of putting a small hole in the posterior capsule to improve the vision of the patient.  The procedure is done as an outpatient procedure and the patient is allowed to go home immediately.  The allegation that bandage was applied to his left eye after the procedure is not true and is not borne out from the treatment records.  Exhibit A2 has recorded that it was done without any charge.  He was asked to return for follow up.   Exhibit A2(a) refers to the follow up on 06.11.2015.  It has been recorded that he was having corneal opacity.  After examining him, it is seen that bandage contact lens (BCL) was applied.  Therefore, going by the treatment records bandage was applied only on 06.11.2015. 

          26.     The District Commission has mistaken the Yag Capsulotomy to be a surgical procedure.  Medical personnel do not consider Yag Capsulotomy to be a surgery for the reason that, no incision is made while performing the procedure.  The patient does not feel any pain or discomfort and the entire procedure would be over in a few seconds.  After that the patient is allowed to go home.  In the present case also there is no evidence to show that any bandage was applied to the complainant’s left eye.  He was also allowed to go home on the same day.  It is alleged by him that he was feeling pain in his left eye after the procedure.  But, when he came for review the redness in his eye was diagnosed to be because of viral keratitis, which is a viral infection from which he had suffered previously.  In such patients, viral infection could recur at any time, without any reason. 

          27.     The District Commission has proceeded to fix liability on the opposite party on the impression that the redness and the infection in the eyes of the complainant was a consequence of the Yag Capsulotomy procedure.  It has also been held that the opposite party had not taken proper post surgical care of the complainant.  The District Commission has seriously erred in both its conclusions.  In the first place, as already noticed above, the Yag Capsulotomy is not a surgical procedure.  Admittedly, the patient has not been treated as an inpatient for the said procedure.   He had left the hospital immediately after the said procedure, without feeling any discomfort.  According to the complainant, the redness in his eyes and discomfort had arisen on the next day.  The said discomfort was diagnosed as the result of an infection, viral keratitis.  He had suffered from the said infection earlier and the medical opinion is to the effect that such infection could recur at any time without any reason.  It is seen from the records that the said infection was also diagnosed properly and treated by prescribing antibiotics.  Exhibit A7 which is the treatment summary of Aravind Eye Hospital has referred to the infection in the eyes of the complainant as keratitis.  It has also been recorded that there was no history of trauma or any systemic illness in the eyes of the complainant.  The District Commission has ignored the fact that in the complainant, corneal sensation was significantly reduced in both eyes and the presence of corneal scar has also been noted in Exhibit A7.   Corneal scar is caused by the improper healing of an injury to the cornea caused years back.  Such a scar would impair vision, according to medical literature.  Yag Capsulotomy is a procedure that is done to the posterior chamber at the back of the cornea.  No injury in the posterior chamber has been detected or recorded in Exhibit A7.  The infection that was noticed has been diagnosed in Exhibit A7 as follows:

“Hence a provisional diagnosis of reactivation of viral keratitis with secondary infection in left eye was made”.

28.     On the basis of the above diagnosis, he was treated with topical fortified antibiotics and antiviral and oral medicines.  It is recorded that he responded well with medical management and was discharged on 28.12.2015.  Exhibit A7 is the record of the treatment given to him at the Aravind Eye Hospital.  Though the complainant’s case is that the Yag Capsulotomy procedure had caused an injury to his eye, it is pertinent to note that according to Exhibit A7 there was no trauma in his eyes which means that there was no such injury as alleged. 

29.     As we have already noticed, no expert evidence has been adduced in this case.  The documentary evidence Exhibits A1 to A10 and B1 to B10 are all records of the treatment provided to the complainant by the opposite party, except for Exhibit A7, which relates to the treatment provided by Aravind Eye Hospital.  The oral evidence consists of only the interested testimony of the complainant as PW1 and Dr. Sreelatha Vinod as PW2.  PW2 has deposed in terms of the case pleaded by the opposite party.  The only independent evidence is that of DW2 who is the Medical Officer at Aravind Eye Hospital,
Dr. Arjun V.  In his chief examination, he has explained the reason why it is mentioned in Exhibit A7 that the corneal sensation of the complainant was reduced in both eyes.  He has also explained that what is meant by reactivation of viral keratitis is that the viral infection that had occurred in the cornea had become reactivated.  He has emphatically opined that reactivation of viral keratitis was not a laser induced complication.  It is a complication that occurs in persons who had viral infection in their eyes at an earlier point of time.  He has further explained that such infection would recur at any time.  According to DW2 there were no injuries in the eyes of the complainant.  He has stated that the loss of vision was due to the corneal scars.  Since Yag Capsulotomy procedure was done to remove the thickening behind the posterior chamber, taking into account the fact that no injury had been recorded to have been caused to any part of the left eye of the complainant, it has to be held that the allegation of the complainant that injury has been caused to his left eye by the negligence on the part of the opposite party in conducting the Yag Capsulotomy procedure has to fail.  The finding of the District Commission to the said effect is not supported by the evidence available in this case. 

30.     To sum up, in the light of Exhibit A7 and the oral evidence of PW2 and DW2, the procedure Yag Capsulotomy that was done to the left eye of the complainant free of charge has not caused any injury or adverse effect to the complainant’s vision.  The loss of vision according to DW2 was due to the scar on his cornea which was there for more than two decades and the viral keratitis infection that got reactivated.  According to DW2 the reactivation of viral keratitis infection was not attributable to the Yag Capsulotomy procedure.  All other allegations regarding the lack of attention provided to the complainant by the opposite party and deputing another doctor, PW2 are all denied by the opposite party and remains unsupported by any evidence.  Therefore, the conclusion drawn by the District Commission that some junior doctor was experimenting with the eyes of the complainant is unwarranted and unsustainable.  The District Commission erred in discarding the evidence of DW2 as an interested testimony, without any basis.  There is nothing on record to prove that proper treatment was not extended to the complainant by the opposite party or that proper care was not taken to arrest the infection in his left eye.  The District Commission has proceeded on the presumption that the complainant had approached the hospital of the opposite party with the specific intention of consulting him.  It is pertinent to note that, the complainant on his first visit on 13.10.2015, had consulted PW2 Dr. Sreelatha.  It was only on 30.10.2015 that the opposite party had seen him for the first time.  In the state of the evidence available in this case, we find no reasons to hold that the opposite party was negligent in treating the complainant and to sustain the finding of the District Commission that the loss of vision in the left eye of the complainant was because of deficiency in service of the opposite party. 

31.     In the light of the foregoing discussion, the appellant is entitled to succeed.  This appeal is therefore allowed and the order dated 03.11.2022 of the Consumer Disputes Redressal Commission, Kannur in C.C.No.358/2016 is set aside.  The complaint is consequently dismissed.  The parties shall suffer their respective costs.  

Refund the amount of statutory deposit made at the time of filing this appeal to the appellant on proper acknowledgement.  The amount deposited by the appellant before the District Commission as condition for stay shall also be refunded to the appellant.

SL