DR. S. M. KANTIKAR, MEMBER

1.      This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 25.6.2007 passed in appeals No. 112 of 2005 and 151 of 2005 by H.P. State Consumer Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) whereby the appeal No. 112 of 2005 filed by the complainant, for enhancement of compensation was dismissed and another appeal No. 151 of 2005 filed by the OPs, was allowed and the order passed by the District Consumer Disputes Redressal Forum, Una, (in short, ‘the District Forum’) granting compensation of Rs. 1 lakh to the complainant, was set aside.

2.      The complainant, Sukhdev Gill, (in short, ‘patient’) a practising advocate at Chandigarh visited Rotary Eye Hospital at Dhusara for his eye check-up on 14.7.1999.  OP-3/Dr. Rajat Mathur , examined him and found the cataract in the left eye and also squint in the left eye.  Accordingly, OP-3 advised him to undergo squint operation initially, then the cataract operation.  The complainant got admitted on the same day and operation was performed by OP-3 on next day.  No one/hospital staff was present to take care of the patient.  It was alleged that injection was given by Chowkidar.  On the next day i.e. 16.7.1999, he was discharged.  OP-3 removed the stitches on 24.7.1999 and advised some medicines.  The squint was not corrected and complainant had diminished vision in left eye.  Therefore, the complainant visited OP/hospital on 25.8.1999, but OP-3 after examining the left eye asked the complainant to forget about his left eye forever.  On 29.9.1999, the complainant visited Grover Eye and ENT Hospital at Chandigarh wherein it was diagnosed that retina of left eye of the complainant had been detached; it was incurable.  Thereafter, the complainant visited number of other doctors and eye hospitals but there was no avail.   Thus, due to the alleged negligence of OP-3/doctor and OP-1/hospital, the complainant filed a complaint before the District Forum, Una, H.P. claiming damages to the tune of Rs.4,85,000/-.

3.      The OPs resisted the complaint before the District Forum and denied any negligence on their part.  It was submitted that right eye vision of the complainant was 6/60 and correction with glasses was 6/12.  The vision of left eye was almost zero, i.e. as per WHO standard, it was blind.  The left eye was having no vision except perception of light, but projection of rays was inaccurate.  There was squint in left eye having outward deviation of 30 degree.  Fundus examination revealed that there was old Retinal Detachment (in short, ‘RD’) in the left eye.  Accordingly, patient was advised that, there was no chance of vision in left eye, but for cosmetic purpose, squint could be corrected.   The operation for squint correction was conducted on 15.7.1999 and patient was discharged on 16.7.1999.  There was no fault in the operation.   It was denied that the operation was unsuccessful, OP did not charge for diagnosis, but only material costs was charged.  The complainant was well aware about condition of left eye and RD prior to the surgery for correction of his squint. 

4.      The District Forum on the basis of averments of the parties and medical record, allowed the complaint and directed the OPs jointly and severally to pay a sum of Rs. 1 lakh to the complainant within one month and Rs.1,000/- as costs.

5.      Being aggrieved, both the parties filed cross appeals before State Commission, Shimla.  The complainant filed F.A. No. 112 of 2005 for enhancement of compensation, whereas, F.A. No. 151 of 2005 was filed by OPs 1 and 3 for dismissal of the complaint.  The State Commission allowed the appeal filed by OPs and set aside the order passed by the District Forum, consequently dismissed the complaint.

6.      Being aggrieved by the order of State Commission, the complainant filed this instant revision petition.

7.      We have heard the learned counsel for both the parties.  Learned counsel for the complainant vehemently argued that RD  was not existing previously.  Also, OP-3 did not inform about the RD prior to the squint correction surgery.  The complainant suffered RD after operation only.  The counsel brought our attention to the various prescriptions issued by OP-3 wherein the findings of RD were not mentioned.  The counsel submitted that the complainant lost his vision in left eye and therefore, his professional career was ruined.  His income came down from Rs.15,000/- to Rs.4,000/- per month, therefore, he has engaged a junior for Rs.2,000/- per month.  The treatment given by OP-3 was not as per standard of practice.  On the basis of prescription slips of different hospitals and doctors, it proves that the RD occurred during the squint surgery. 

8.      Learned counsel for OPs argued that patient’s left eye was totally blind.  There was only perception of light and no vision.  It was correction surgery for the squint eye, performed by OP-3, therefore, there was no chance of  RD  during surgery.  He further stated that, the RD was already pre-existing, which was made aware to the complainant before surgery.  The squint surgery  was for cosmetic reason.  He further submitted that RD was not due to any negligence or carelessness during the squint operation.

9.      We have given our thoughtful consideration to the arguments advanced by both the parties before us and perused the entire medical record available on the file, also gone through medical literature and the books of Ophthalmology.  We have perused the prescription slips of different hospitals.  None of these doctors mentioned about RD was due to negligence or carelessness during squint correction surgery performed by OP-3.  Annexure R-1, which was filed before the District Forum i.e. OPD record revealed that Dr. Rajat Mathur after Fundal examination of the left eye mentioned that Old RD (Retina Detachment) Poor Visual Prognosis Explained i.e. operative notes.  Therefore, in our view, OP-3 treated the patient only for cosmetic squint correction of left eye.  The complainant failed to provide any cogent evidence that RD was due to outcome of squint correction surgery.  Even, the complainant has not produced any expert evidence to prove his case.

10.    Hon’ble Supreme Court in a catena of judgments have made elaborate observations on the medical negligence.  For the complainant to succeed in the claim of alleged medical negligence, he has to prove the essential ingredients of medical negligence like Duty, Dereliction of duty of care (breach) and resultant Damage (injury).  In the instant case, the complainant failed to prove those elements.  It should be borne in mind that merely because the patient did not respond favourably to the treatment, cannot be a ground to fasten the liability upon the medical professional.  Therefore, based on the above discussion, we do not find any merit in the instant revision petition and the same is ordered to be dismissed.  There shall be no order as to costs.