STATE CONSUMER DISPUTES REDRESSAL COMMISSION

Bihar Patna

Appeal No. 233 of 2017

1. Anil Kumar Pathak, S/o- Umanath Pathak, Resident of Village- Lachhuar, PS- Sikandra, District- Jamui, in the capacity of Manager, Bhagwan Mahabir Hospital, Lacchuar, Sikandra, PS- Sikandra, District- Jamui
    
2. Shree Atam Ballabh Jan Kalyan Trust, Kolkata, who manage and maintain Bhagwan Mahabir Hospital, Lachhuar, Sikandra, through it Manager, Anil Kumar Pathak, S/o- Umanath Pathak, Resident of Village- Lachhuar, PS- Sikandra, District- Jamui                                                          

                                                                                                                                       .... Opposite parties/  Appellants

Versus

Pyare Das, Son of Late Dwarika Das, Resident of Village- Nandanama, PS- Ramgarh Chowk, District- Lakhisarai                                                                       

                                                                                                                                        .  ... Complainant/ Respondent

Counsel for the appellant: Adv. Prabhat Ranjan Singh

Counsel for the respondent: Adv. Sanjay Kumar Pandey

Before:

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Order

Dated-03.05.2023

Per: Hon’ble Mr. Justice Sanjay Kumar, President

1. The present appeal has been filed by appellants/Opposite parties for setting the order dated 05.07.2017 passed by Ld. District Consumer Forum, Jamui in Complaint Case no. 54 of 2013 whereby and whereunder the Ld. District Forum has allowed the complaint case and has directed appellants to pay compensation of Rs. 2,00,000/- to the complainant within 3 months from the date of order.
2. Briefly stated the facts of the case is that complainant on the advice and assurance of opposite party no. 2 that after operation vision of his right eye will be restored, complainant under went operation of his right eye on 25.01.2013 at Bhagwan Mahavir Hospital, Lacchuar, however, after operation he completely lost his vision of right eye and thereafter he was treated by the doctor from 30.01.2013 to 09.02.2013 but his vision could not be restored and they assured to compensate him by the trust but no compensation was paid to him. He send legal notices on 03.05.2013, 21.05.2013 & 07.06.2013 but did not receive any response from the opposite parties as such he approached District Consumer Forum, for payment of compensation of Rs. 6,10,000/-.
3. On notice opposite party no. 1 and 2 appeared and filed and their written statement stating therein that opposite party is a charitable Trust and on donations given by Jain devotees, the hospital treats poor people free of cost. It is further stated that opposite party received legal notice from complainant and same was replied and papers of operation was called for and he received medical documents on 07.06.2013 which included (1). Registration Card of Bhagwan Mahavir Hospital dated 30.01.2013 having registration no. 7919  (2). Medical prescription of hospital dated 30.01.2013, (3). Medical prescription of hospital dated 07.02.2013, (4). Registration Card No. 8987 dated 01.03.2013.
4. It was further stated in the written statement that complainant did not submit any document with respect to eye operation performed on 25.01.2013. Selected patient to be operated for eyes in the hospital, eye operation card coupon is provided at the cost of Rs. 30/-. It was further stated that on 25.01.2013 no eye operation camp was organised by Bhagwan Mahavir Hospital.
5. Complainant got himself examined on 30.01.2013 in Bhagwan Mahavir Hospital for infection in right eye which is apparent from the registration card and medical prescription dated 30.01.2013. Treatment of infection of right eye was done in Bhagwan Mahavir Hospital and thereafter one spectacles free of cost was also provided for protection and clear vision of left eye which is mentioned in registration card dated 30.01.2013.
6. In support of his claim case complainant has filed evidence on affidavit of himself his wife Usha Devi and his mother Rohini Devi who have been crossed examined also. Witnesses have supported the case of complainant as made out in complaint petition. Complainant has also filed documentary evidence in support of his claim. Medical prescription of treatment of right eye infection dated 30.01.2013 and subsequent check up on 01.02.2013, 07.02.2013 & 09.02.2013 at Bhagwan Mahavir Hospital. Copy of legal notices dated 21.05.2013, 07.06.2013 & 27.05.2013. During pendency of complaint case, complainant further filed medical prescription dated 07.10.2013 of PMCH, Patna where complainant got his right eye examined.
7. Opposite party no. 1 Anil Kumar Pathak Manager of Bhagwan Mahavir Hospital and Santosh Kumar Pathak, medical store dealer have filed their evidence on affidavit and have also been cross examined. As documentary evidence (i). two registration cards of complainant dated 30.01.2013 and 01.03.2013 have been submitted. (ii). Two medical prescription of complainant dated 30.01.2013 showing examination of right eye infection of complainant which further continued on 01.12.2013, 07.02.2013 & 09.02.2013. (iii). Blank and cancelled coupon of Rs. 50/- of eye operation camp (iv). two original register showing name of patient and dates of organising eye operation in eye camp has been placed on record.
8. Anil Kumar Pathak (O.P. no. 1) working as Manager of Bhagwan Mahavir Hospital has stated that the patients are operated without any fee in camp organised 2-3 times for cataract with prior notice of camp after permission granted by Civil Surgeon and District Magistrate. Pathological test are conducted prior thereto and complainant was not operated on 25.01.2013. No document has been filed by complainant to show that he was operated on 25.01.2013. Complainant was treated for infection on 30.01.2013 followed by review check up.  
9. Heard counsel for the parties. The judgment and order passed by District Consumer Forum, Jamui is not sustainable for the following reasons:

1. Complainant no where had stated that he had paid any fee for operation/treatment of his right eye to the Bhagwan Mahavir Hospital as such the complaint petition itself was not maintainable before the Consumer Forum.
2. Anil Kumar Pathak who is Manager of the Hospital has stated in clear terms that eye camp is organised by the charitable trust which organises eye operation for poor patient free of cost from the fund donated by the jain devotees and same has not been controverted anywhere as such the complaint petition was not maintainable.
3. Complainant had neither filed any chit of document that he was operated in the Bhagwan Mahavir Hospital on 25.01.2013 nor has given any prior date on which advice and assurance was given by the doctor of Bhagwan Mahavir Hospital that his vision will be restored as stated in his complaint petition.
4. Case of complainant is to be decided on the basis of evidence adduced by complainant in support of his claim and District Consumer Forum can not rely on the evidence of opposite parties and allow the complaint case of complainant.
5. The judgment and order of District Consumer Forum that operation of complainant was performed on 25.01.2013 is based upon presumptions and assumption as well as conjecture and surmises and based upon no evidence.
6. There is no material available on record which even remotely suggests that complainant was operated of his right eye on 25.01.2013 in Bhagwan Mahavir Hospital.
7. District Consumer Forum ought to have not allowed any document to be placed on record created after filing of the complaint case.
8. Even assuming that complainant was operated for his right eye on 25.01.2013 and operation was not successful that by itself can not amount to Medical negligence as chance of failure of operation is recognised in Medical profession.
9. There is no allegation that reasonable care and caution was not observed while performing operation and doctor who performed operation was not qualified. There is no allegation that required skill and competence was not exhibited by the operating doctor. There is no allegation that medical protocol was not followed at any stage during treatment.

10.  For the reasons as stated above the judgment and order dated 05.07.2017 passed by District Consumer Forum, Jamui in Complaint Case no. 54 of 2013 is neither sustainable in law nor on facts and is accordingly set aside. The appeal is allowed and the complaint case no. 54 of 2013 filed before the District Consumer Forum is set aside.
11.  District Consumer Forum, Jamui ought to have been more cautious before issuing notices to such voluntary/charitable organisation/Trust which are under taking voluntary service by treating and helping poor and needy persons free of cost from the donations received from Jain devotees. They have been unnecessarily dragged in  this uncalled for litigation, which has demoralizing effect on charitable trust providing free medical care and help to poor and needy.

          Ram Prawesh Das                                                                                                     Sanjay Kumar, J

             (Member)                                                                                                                  (President)

Md. Fariduzzama