Heard learned counsel for the appellant. None appears for the respondent.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The factual matrix leading to the case of the complainant is that while his son Sanjib Kumar Barik was playing on the road on 21.6.2009, he suddenly got pain in his left eye for which he took the son to Kalinga Eye Hospital & Research Centre where the concerned doctors were there in the hospital. The doctor checked the eye of Sanjib and put bandage on the eye with the instruction to treat with prescribed medicines. The doctor advised Sanjib to visit on 28.6.2009. On 25.6.2009 when the left eye of Sanjib was opened, the eye has not been cured. So the concerned Doctor of OP No.1 Hospital referred Sanjib to L.V.Prasad Eye Institute, Bhubaneswar where he was found to have lost the left eye ball and accordingly, the operation took place and the concerned Sanjib was treated an indoor patient from 25.6.2009 to 28.6.2009. The complainant alleged inter alia that due to negligence of the doctor at OP No.1’s hospital the eye ball of the left eye of Sanjib has become damaged. So he squarely found negligence on the part of the OPs. Thereafter, complaint was filed showing negligence on the part of the OPs.
4. OP No.1 filed written version stating that the case is not maintainable. There is no cause of action to file the case and the complainant is not a consumer. It is admitted that son of the complainant was treated in his hospital on 21.6.2009 by one Dr.Susanta Kumar Jagadala who is the visiting Ophthalmologist to their hospital. It is further admitted that on 25.6.2009 Sanjib was referred to L.V.Prasad Eye Institute, Bhubaneswar by OP No.1 to take better treatment in the hospital of L.V.Prasad Eye Institute as the condition of the patient became serious. OP No.1 further stated that the complainant is responsible for loss of eye of his son because the complainant was not given early treatment. So he denied about any deficiency of service on their part.
5. Learned District Forum after hearing both parties passed the following impugned order:-
“xxx xxx xxx
In the result the case is allowed on contest against the OP No.1. The opposite party No.1 is directed to pay compensation of Rs.3,00,000/- (Rupees three lakhs) together with cost of Rs.5000/- (Rupees five thousand) to the petitioner within one month from the date of receipt of this order failing which it shall carry interest @12% per annum from the date of order till final payment is made.”
6. Learned counsel for the appellant submitted that the learned District Forum committed error in law by directing OP No.1 to pay compensation with litigation cost by not considering the case of OP No.1 with proper perspective. According to him, learned District Forum has not referred the patient for any expert opinion to find out whether the treatment meted out by the doctor of OP No.1 hospital had negligence on his part while treating Sanjib. He also cited the deciosn of the Hon’ble Supreme Court passed in Martin F. D’ Souza vrs. Mohd. Ishfaq AIR 2009 SC 2049. Since expert opinion has not been obtained, the conclusion arrived by the learned District Forum is illegal and improper. Learned District Forum is not expert to find out the negligence of doctor of OP No.1. So he submitted to set aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.
8. It is for the complainant to prove the deficiency of service on the part of OP No.1.
9. It is admitted fact that the Sanjib the son of the complainant was treated in the OP No.1’s hospital by Dr.Susanta Kumar Jagadala. It is not in dispute that on 25.6.2009 the doctor at OP No.1’s hospital referred Sanjib to L.V.Prasad Eye Institute as there was no improvement to the left eye of Sanjib. It is not in dispute that Sanjib was treated at L.V.Prasad Eye Institute from 25.6.2009 to 28.6.2009.
10. Complainant in order to prove the case has filed the prescription issued by doctor at OP No.1’s hospital. It appears from the prescription dated 21.6.2009 that the doctor concerned only prescribed medicines but the name of the disease has not been mentioned therein. It also appears from the documents that on 25.6.2009 the patient was referred to L.V.Prasad Eye Institute but no reason was assigned. However, the document of L.V.Prasad Eye Institute shows that on 25.6.2009, he was admitted on 27.6.2009 his eye was operated and on 28.6.2009 he was discharged. The name of the disease has also been written there. Those documents were admitted by both parties. The complaint has only stated in the complaint petition that due to negligence of doctor of OP No.1’s hospital the left eye of Sanjib became defective and as such he lost the eye sight. Learned District Forum only held that as the OPs have not sufficiently explained whether the proper treatment was given to the complainant’s son and reason for referring the patient to L.V.Prasad Eye Institute for which the OP is careless and negligent on their part. Further, non-examination of Dr.Jagadala is a stigma with OP as found by learned District Forum. Further, the learned District Forum has only observed at para 7 that since the Op failed to substantiate that there is no negligence, no expert opinion is necessary in this regard.
11. In the decision reported in Martin F. D’ Souza vrs. Mohd. Ishfaq AIR 2009 SC 2049 where Their Lordships have observed that in the event of allegation of negligence on the part of the doctor at hospital, the report of the expert committee or the medical board should be called for by the learned District Forum to find out negligence of doctor concerned. In the instant case, the reason for not referring expert committee as mentioned by the learned District Forum is not sound one. Here, in this case, the report of the expert committee was necessary in view of the decision of the Hon’ble Supreme Court as stated above.
12. In the instant case, there is already allegation of loss of left eye sight of Sanjib. So the expert opinion is necessary to find out whether the treatment meted out by the doctor at OP No.1’s hospital was adequate without any sort of negligence attributed by the doctor. Therefore, it is felt necessary that expert opinion should be obtained by the learned District Forum to decide the case afresh. Hence, this Commission is of the view that the case should be remanded to the learned District Forum for obtaining the expert opinion and dispose of the case along with other evidence within a fixed period.
13. From the forgoing discussions, the appeal is allowed by remanding the same to the learned District Commission to call for the expert opinion from the Professor and Heads of the Department of Ophthalmology, SCB Medical College and Hospital, Cuttack as per the procedure and then hear both the parties on the expert opinion and dispose of the case in accordance with law afresh within 60 days from the date of receipt of this order. It is made clear that this Commission has not expressed any opinion on the merit of the case. It is also made clear that none of the parties would be allowed to lead evidence further but if there is any objection to the report of the expert, the same should be taken into consideration while evaluating the expert opinion.
14. Thus, the matter is remanded to the learned District Commission for denovo hearing and disposal afresh within the stipulated period as stated above and both the parties are directed to down load the order of this Commission from the Confonet or Website of this Commission and produce the same before the learned District Commission on 10.8.2021 to take further instruction from it.
DFR be sent back forthwith.
Statutory amount deposited be refunded to the appellant with interest accrued thereon if any on proper identification.
