DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.624/2013
ROHIT KATYAL
S/o Shri N.K. Katyal
R/o C-8/8763,
Vasant Kunj,
New Delhi-110070
….Complainant
Versus
DR. JAYEETA BOSE,
CONSULTANT CORNEA SERVICES,
VENU EYE INSTITUTE & RESEARCH CENTRE
1/31, PRESS ENCLAVE MARG,
SHEIKH SARAI INSTITUTIONAL AREA, PHASE-2,
NEW DELHI-110017
VENU EYE INSTITUTE & RESEARCH CENTRE,
1/31, PRESS ENCLAVE MARG,
SHEIKH SARAI INSTITUTIONAL AREA, PHASE-2,
NEW DELHI-110017
THE ORIENTAL INSURANCE CO. LTD.
ORIENTAL HOUSE, P.B NO.7037,
A-25/27, ASAF ALI ROAD,
NEW DELHI-110002
….Opposite Parties
Date of Institution : 26.12.2013
Date of Order : 25.04.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
- Briefly put, the Complainant, Rohit Katyal approached Dr. Jayeeta Bose (OP-1) and Venu Eye Institute & Research Centre (OP-2) on 26.09.2013 with the complaint of watering and sometimes heaviness in his eyes. After investigation the Complainant was advised medicine for the same. The complainant was recommended to go for Lasik Surgery to correct the vision and removal of his spectacles along with permanent cure for watering and heaviness in both the eyes of the Complainant.
- Convinced of the fact that the problems in the eyes of the Complainant would be resolved after getting the Lasik Surgery done and he will have hundred percent correction in both eyes, Complainant deposited an amount of Rs.30,000/- in cash with OP-2 . Receipt of the same is annexed as Annexure –‘3’. Thereafter Complainant was advised to reach Spectra Eye Centre for getting the Lasik Surgery done by OP-1 as OP-1 had its tie-up arrangement with them and also due to non-availability of any senior doctor with OP-2.
- It is stated that the false and tall claims made by OP-1 & OP-2 proved disastrous in the case of the Complainant as his vision remained blurried till the new eye sight number was given by OP-1 on 19.10.2013. The Complainant could not see properly even after Lasik Surgery from 27.09.2013 to 26.10.2013 due to some Flap complications as told by OP-1 to the Complainant. It is next stated that the new eye sight number after the surgery was given on 19.102013 which was recorded as R/E as +1.25 and L/E as +0.75 whereas prior to the Lasik Surgery the eye sight of the Complainant was -2.50 (R/E and -2.25(L/E). Documents confirming the same are annexed as Annexure-‘7’ (Colly.) It is alleged there was no improvement in the vision of the Complainant after the Lasik Surgery and he could not read without using the spectacles. Feeling cheated and lured by OP-1 and OP-2 to get the Lasik Surgery done, which was not required for the treatment of watering and heaviness in eyes, under the guise of removing the spectacles OP-1 and OP-2 made false representations.
- Thus, aggrieved Complainant approached this Forum to refund the amount of Rs. 30,000/- paid towards Lasik Surgery with the interest @12% per annum and to refund Rs.1,521/- towards medicine charges, Rs.15,000/- towards mental agony and pains, and Rs. 42,000/- being the loss of amount of paid leave for 28 days.
- OP-1 and OP-2 jointly resisted the complainant stating interalia that the Complainant, who is a well educated person has signed a written consent after going through and understanding all the consequences/risk factors, which are clearly mentioned in the consent form including the chances of over and under correction of vision. It is stated that Lasik Surgery was successfully performed by the OPs as no untoward finding was seen on the next day during the follow up visit of the Complainant.
- It is also stated that OP-2 has a tie-up with Spectra Eye Centre as it has world class Lasik Machine and upgraded medical facility in the centre where number of Lasik Surgeries are performed daily by the owner of the centre itself and by OP-1. Therefore it was in the interest of the patient that OP-1 and OP-2 advised the Complainant to get his Lasik Surgery done in Spectra Eye Centre.
- It is next stated by OP that the Complainant was advised to come for follow up visit next week but the Complainant did not come. The Complainant came for checkup on 14.10.2013 and was prescribed certain medicines. The Complainant thereafter came on 19.10.2013 and was prescribed glasses for near vision with advice to come for the next visit after one month. It is stated that Complainant did not come for the regular follow up visit thereafter.
8. It is stated that as no deficiency in service has been caused to the Complainant by Opposite Parties, Complainant is not entitled to any relief. It is thus prayed that Complaint be dismissed with cost.
9. OP-1 and OP-2 jointly moved an application to implead Oriental Insurance –Company as OPs were covered under the Professional Indemnity Doctors Policy valid for the period 14.10.2012 till 13.10.2013. It is stated the Insurance Company being a necessary party should be impleaded as Opposite Party No.3. The said application was allowed and Oriental Insurance Company was impleaded as Opposite Party No.3.
10. OP-3 filed its written version stating that no cause of action has arisen against OP-3 and there is no privity of contract between the Complainant and OP-3. Therefore OP-3 cannot be held liable for any negligence towards the Complainant and it is not under any obligation to make payment to the Complainant as per the Terms & Conditions of the Policy. It is thus prayed that complaint be dismissed being not maintainable.
11. Rejoinder is filed on behalf of the Complainant. Evidence by way of affidavit and written arguments are filed on behalf of the Complainant, OP-1 and OP-2. Submissions made on behalf of the Complainant are heard, material placed on record is perused.
12. It is the case of the Complainant that Complainant visited OP-1 and OP-2 for occasional heaviness and water flowing from the eyes. However the Complainant was lured into getting the Lasik Surgery done from the OPs, which did not give desired results.
13. Complainant’s grievance that OP-1 performed the surgery at Spectra Eye Centre is baseless as OP-1 clearly states that Spectra Eye Care Centre had better Lasik Machine and facilities and it was in the interest of the Complainant that the Lasik Surgery was performed in the said centre.
14. Complainant has next alleged that Complainant’s Eyes Sight number after the surgery was recorded as R/E and L/E as +1.25 and +0.75 respectively whereas prior to the Lasik Surgery Eye sight of the Complainant was -2.50 (R/E) and -2.25 (L/E). Complainant alongwith his complaint has filed ‘Instructions for Refractive Surgery/ Lasik’ as Annexure – ‘4’. The Relevant portion of the said document under the head ‘Lasik Risks and Benefits’ appended at Page -16 are reproduced below for ready reference –
XXXXXX not everyone who has Lasik Surgery can completely eliminate the need for glasses or contacts. However Lasik may reduce your dependence on vision correction devices.
Not everyone is a suitable candidate for Lasik Eye Surgery. Certain conditions and anatomical factors can put you at an increased risk of an undesirable outcome or limit optimal Lasik results. These include:
- Thin or irregular corneas
- Large pupil size
- Degree of refractive error
- Whether you suffer from dry eyes
- Your age
- Whether your vision is stable
- Whether you are pregnant
- If you have certain degenerative or autoimmune disorders.
Common Lasik complications and side effects are listed below and most can be resolved with medical treatment or additional enhancement surgery-
1 Temporary discomfort and vision disturbances. Discomfort during the first few days following LASIK surgery, such as mild irritation and light Sensitivity is normal and to be expected.
- Flap Complications. The Lasik procedure involves the creation of thin hinged flap on the front surface of the cornea. This lifted during surgery for laser reshaping of the eye. The flap is then replaced to form a natural bandage. If the Lasik flap is not made correctly, it may fail to adhere properly to the eye’s surface or cause microscopic wrinkles in the flap called corneal striae.
15. We are of the opinion that Complainant being an educated and informed person had consented to Lasik Surgery of his own free will and without any coercion therefore the plea that the Complainant was induced or lured to get the Lasik surgery done is rejected. It is not complainant’s case that he was not informed regarding the risks and benefits of the Lasik Surgery, mere reading of the instructions above, on refractive surgery there is no ambiguity regarding the risks /complications and the benefits of the same. Therefore as the complications alleged by the Complainant fall in the category of the above mentioned risks/benefits we find no deficiency in service of OPs.
16. It is also noticed from the material placed before us that the Complainant never took a second opinion or visited any other Lasik Eye Surgery Expert for any complications thereafter.
17. It is settled that loss or injury if any, must flow from negligence. In the instant case Complainant has failed to establish any negligence on part of OPs, therefore OP-1, OP-2 and OP-3 are all absolved of any liability towards the Complainant.
18. In view of the aforesaid discussion complaint is dismissed being meritless.
File be consigned to the record room after giving a copy of the order to the parties.
