This appeal has registered by Dr. DB Sarkar and Coochbehar Eye Care & Research Centre Pvt. Ltd.  Who were the Ops in CC No. 04/2015 and respondent of this appeal DC Barman was the  complainant of the same consumer complaint case.  The complaint case in nut shell is that the complainant with a problem of distant vision in his right eye which was gradually diminishing had consulted with the appellant no. 1 Dr. DB Sarkar at the Coochbehar Eye Care Centre Pvt. Ltd. that is appellant no. 2. Dr. Sarkar that is appellant no. 1 initially examined the complainant Dinesh Barman and detected that practically he was one eyed and his right eye vision was 6 by 36 (T) and also advised for pc stroke IOL (intraocularlense). After primary examination the complainant was assured that after  IOL operation he will get the normal visual activity in his right eye.  Accordingly, after some routine pathological tests complainant was admitted on the same Nursing Home on 8/9/2012 for cataract surgery with IOL. After surgery, the complainant was discharged with prescription of some medicines for post operating healing.

  In spite of such operation and medicines as prescribed his right eye could not be improved and practically he had no vision in his right eye and it was reported to the appellant no. 1. The appellant again prescribed some medicine. Again on 20/04/2013 complainant visited the appellant with all such problems and at that time the complainant was advised to go to a higher centre for better medical treatment. The complainant then filed the instant case before the Ld. Forum on the grounds that due to lack of organic care and skills at the time of RT Cataract surgery with IOL, the complainant has lost his vision and suffered various problems. The appellant that is op. 1 and op. 2 have contested the consumer complaint case by filing the WV and contended that the complainant was suffering with “pale optic dis” and also there was vitreous membrane (membrane in the jelly of eye ball and retina).

The further case of the Op in WV is that on 30/07/2012, the complainant was examined by appellant no. 1 in the said nursing home and found his right eye vision too poor. The further case of the Op No. 1 and 2 is that after examination and before said cataract operation the patient/complainant was referred to Vitreo Retinal surgeon Dr. Somnath Chakraborty who opinied that right eye of the complainant was on the verge of blindness due to Vtreo Macular Traxon and Neovascularisation. Accordingly, Dr. DB Sarkar the appellant and Dr. S Chakraborty the Vitereo Retinal Surgeon conducted the operation of the complainant the cataract with IOL. After operation by both the Doctors silicon oil injections applied for settlement of Taxanal Retinal. The further case of the Op is that the said operation was successful  and they have saved the loss of the right eye of the complainant and they had applied their full skill and expertise knowledge in the said operation by adopting the modern up-to-date methods and there was no negligence on their part and for this reason the case should be dismissed.

 In this case the Ld. Forum has asked the contesting parties to submit their evidences in chief and thereafter, the forum has heard the case in presence of both sides and delivered the impugned order. Being agreed with the order this appeal follows on the ground that Dr. S Chakra borty was part of the operation and he was the necessary party of the case and the Consumer Case suffers for want of necessary party. The ground of appeal further reflects that the Ld. Forum has  wrongly appreciated the evidences and could not understand the actual position and relying only upon the evidences of the complainant the instant order was passed which was irregular with full of errors. The appeal was admitted on merit and the respondent Dinesh Chandra Barman was surved notice of appeal who has contested the appeal through his Ld. Advocate appointed by him. The appeal was heard in presence of Ld. Advocate of both sides.

Decision with reasons

Having heard the Ld. Advocates of both sides, it has established beyond any doubt that the complainant Dinesh Chandra Barman had already lost the entire vision of his left eye due to his diabetes and other problems; he came to the appellant Dr. DB Sarkar to save his right eye vision which was going to be lost very soon. Dr. Sarkar again examined him thoroughly and after routine pathological tests, has operated the cataracts of right eye with IOL but the patient party was not satisfied with the treatment of the Doctor and their allegation is based on the ground that Dr. Sarkar who was only qualified having degree of Master of surgery regarding ophthalmology without having any specific qualification regarding disease of retina and vitreous. Ld. Forum also observed that vetreo retinal specialist are always ophthalmologists but all ophthalmologists are not vetreo retinal specialist. Here in this case, being not a vetreo retinal specialist, he has operated the right eye of the patient which is unethical and beyond the expertise skill of the doctor and for that reason Ld. Forum has based the decision on the ground that there was utter medical negligence on the part of Dr. DB Sarkar and the nursing home authority. During the course of hearing the argument, Ld. Advocates of the appellants pointed out very vital documents practically the consent to surgery where it was clearly inserted in the document that the entire operation would be conducted by Dr. DB Sarkar as eye specialist and Dr. S Chakraborty who was specialist at vetreo retinal surgery. The patient details check list, the discharge certificate and  all related documents clearly indicate that Dr. S Chakraborty as vetreo Retinal Surgeon has conducted the eye operation of the complainant along with Dr. DB Sarkar. Unfortunately the Ld. Forum has overlooked the matter while it was brought into the notice of the forum by WV and with cogent documents that Dr. S Chakra borty as vetreo retinal surgeon was involved in the alleged operation of the patient and without impleading him in the consumer complain case no adjudication was possible for the interest of fair justice and it was pointed out in the pleading of the Ops before the attention of Ld. Forum. But their contention was not attracted the attention of Ld. Forum which is serious mistake on their part. Secondly, during the course of argument highlighted the major defect in that particular case while the complainant submitted the affidavit-in-chief, the Ops to that case furnished some questionnaires  towards the affidavit-in-chief of the complainant. The Ld. Forum did not ask the complainant to reply the questionnaires and in this way the right of defence of the Ops to that case has completely ignored which is very unfair and unexpected from an adjudicating authority under the provisions of Consumer Protection Act.

So, in apparent the commission finds that the judgement and the final order of the Ld. Forum suffers from infirmity and invites the interference of this commission in the appellate stage. Accordingly, the appeal succeeds on its own merit.

 Hence, it is,  

Ordered

 That the final order of the Ld. D.C.D.R.F. Coochbehar dated 8/2/2016 in CC No. 4 of 2015 is hereby set aside. The consumer complaint case is hereby returned to the Ld. Forum to hear afresh and to give the opportunity to the consumer complainant to implead Dr. S Chakraborty in this case within a month and thereafter, Ld. Forum must issue a notice upon Dr. Chakraborty asking him to contest the case by WV and if Dr. Chakraborty fails to contest the case within 45 days from the date of receiving the notice, the Forum may adjudicate the dispute and if Dr. Chakraborty appears and he intends to contest the case he should be given the opportunity to file the documents and also evidences on his part. Ld. Forum is also further directed to ask the complainant to answer the questionnaires furnished by the appellant DB Sarkar and if the complainant side wants to put questionnaires upon the contesting Ops then such direction should also be given by the Consumer Forum who is asked to complete the process of adjudication expeditiously within 3 months as desired by the commission.

Let the copy of the order be supplied to the parties free of cost and also to be sent to the concerned Ld. D.C.D.R.F.