ORDER

(Per: Mr. D.K. Tyagi, Member):

          These two appeals filed under Section 15 of the Consumer Protection Act, 1986 arise out of the order dated 21.10.2013 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 25 of 2008.  By the impugned order, the District Forum has partly allowed the consumer complaint against the opposite party No. 1-Dr. Devendra Chandra and directed the opposite party No. 1 to pay to the complainant a sum of Rs. 10,000/- within one month from the date of order, failing which the complainant shall be entitled to get simple interest @ 8% per annum on the said amount from the date of order till the date of actual payment.  The opposite party No. 2 shall reimburse the said amount to the opposite party No. 1. Since both the two appeals arise out of the same order passed by the District Forum, therefore, these appeals are being disposed of by this Common order.   

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Yograj Arora, aged about 65 years, is a teacher by profession.  Due to some problem in complainant’s eye, he went to opposite party No.1-Dr. Devendra Chandra.  The opposite party No.1, after examined the eye, told the complainant that the operation of the eye will be conducted.  The complainant asked the doctor whether vision of eye can be restored, the doctor assured him that his eye will be alright and he will be able to see again.  Trusting on doctor, the complainant became ready for operation, therefore, the doctor operated complainant’s eye on 31.08.2007 in his Hospital and the complainant paid Rs. 3,800/- to the opposite party No. 1 as expenses of operation.  The complainant obeyed the directions given by the doctor-opposite party No. 1, even then no improvement was seen in his eye.  The complainant has stated that after operation condition of his eye worsen and he is facing problem of irritation and watering from the operated eye.  The complainant apprised the doctor-opposite party No. 1 regarding these problems, but          the opposite party No. 1 said that there is no need to worry.  It is a normal phenomena and his eye will be alright.  The opposite party No. 1 prescribed some medicines, which were used by the complainant, but no improvement was seen in the operated eye.  The complainant again met the opposite party No. 1 with above noted problem on 10.09.2007, 17.09.2007, 24.09.2007, 02.10.2007, and 09.10.2007, the doctor again prescribed several medicines, but no improvement took place in the complainant’s eye.  Later on, on 02.11.2007 the complainant visited Sitapur Eye Hospital, where doctor examined complainant’s eye and said that his eye was not properly operated and treated, therefore, this problem shall remain persist in future.  Later on, in the month of December, 2007 the complainant again met opposite party No. 1, but he became furious.  The complainant requested him to advise him, but the opposite party No. 1 did not reply the same.  The opposite party No. 1 has committed negligence during operation of complainant’s eye, therefore, committed deficiency in service on his part.  The complainant has already spent Rs. 25,000/- on treatment of his eye and also suffering physical and mental agony.  The complainant sent a legal notice to the doctor-opposite party No. 1 through his advocate Sh. Ramkumar Sharma, which was served on opposite party No. 1 on 15.01.2008, but he did not reply the same and also not paid the compensation sought. The complainant again on 28.02.2008 visited Sitapur Eye Hospital, but no improvement has seen in his eye.  The opposite party No. 1 is responsible for the deficiency caused.  The complainant demanded a sum of Rs. 25,000/- spent in operation as well as for medicines and Rs. 2,20,000/- for mental agony. 

3.       The opposite party No. 1-Dr. Devendra Chandra has filed his written statement before the District Forum and has admitted only this fact that he had examined the complainant’s eye and also admitted that he operated the same.  Rest of the facts of the consumer complaint are denied.  In additional pleas, the answering opposite party has pleaded that the complainant had come to him as O.P.D. patient with a problem in his eye and he had apprised that he has some problem with right eye.  The complainant can’t see clearly from his right eye.  The answering opposite party examined the complainant’s eye and found that the complainant was suffering from cataract in his right eye.  On 31.08.2007, the answering opposite party operated complainant’s right eye by PCIOL operation procedure through Small Incision Cataract Surgery (Stichless) with care and caution after some pathological tests and discharged the patient-complainant.  After operation of the eye, no infection occurred and no problem was found in the IRIS of the eye. After operation, the complainant visited the answering opposite party for follow up and during that time the answering opposite party prescribed best antibiotic medicines.  There was no infection in the eye.  Fundus of the eye was normal and IOL Lense was correct. When after operation of the eye, the visibility in the eye did not increase, then the answering opposite party came to the conclusion that complainant’s eye is suffering from Amblyopia.  Amblyopia is defined as (Blunt) and Amaruses (dark) are the terms used for partial and complete loss of sight respectively in one or both eyes in the absence of opthalmoscopic or other marked objectively signed. In the case of Amblyopia the vision of the patient is low without any pathological changes in eye.  In a patient of cataract the condition cannot be diagnosed preoperatively and is detected only after surgery when visual outcome of the surgery is low without any cause. When complainant visited Sitapur Eye Hospital in this regard, where it was diagnosed that it is a case of Pusedophalie Right Eye and not due to operation conducted by answering opposite party.  The complainant has filed bills on the file, but there is no slip of O.P.D. of Sitapur Eye Hospital to show whether the bills are related to the eyes or bones, because the bills submitted by the complainant are regarding medicines given in the diseases relating to bones. There is name of Dr. R.K. Sundaryal, as referral doctor on the bills, who is Orthopedic doctor in the Kashipur Government Hospital.  The burden lies on the complainant to prove his case.  There is no deficiency in service on the part of the answering opposite party.  The answering opposite party is insured with the opposite party No. 2-National Insurance Co. Ltd., Branch Meerut, therefore, in case any liability is fastened over answering opposite party, then the opposite party     No. 2-insurance company will be liable to pay the compensation. 

4.       The opposite party No. 2- National Insurance Co. Ltd. has filed written statement and has denied para Nos. 1 to 10 of the consumer complaint. In additional pleas, the answering opposite party has pleaded that the opposite party No. 1-Dr. Devendra Chandra has conducted operation of the complainant’s eye with care and caution and also prescribed essential medicines and given directions to the complainant to use these medicines. It is the complainant, who has committed carelessness by not obeying the directions of the opposite party No. 1. The complainant is not a consumer of the answering opposite party, therefore, answering opposite party is not responsible for the payment of any amount. Even then, if the Forum fastened any liability, then the compensation will be paid according to the policy conditions.

5.       The opposite party No. 2-insurance company has filed additional written statement before the District Forum and pleaded that the complainant has increased the amount of compensation after  amending the complaint without any basis.  The complainant has not filed any expert report of any specialized doctor regarding medical negligence committed by opposite party No. 1-Dr. Devendra Chandra.

6.       Similarly, the opposite party No. 1-Dr. Devendra Chandra has also filed additional written statement before the District Forum and has pleaded that in para No. 2 of the complaint, the complainant has stated that at the time of filing the consumer complaint, he was taking treatment of eye from Sitapur Eye Hospital, Kashipur and in support of the contention, he has filed a slip of O.P.D. dated 24.03.2009 of Sitapur Eye Hospital and at the time of filing the consumer complaint, the complainant has also filed O.P.D. slip dated 28.02.2008 of Sitapur Eye Hospital.  On the O.P.D. slip dated 24.03.2009 it is written “vision RE 2/60 right eye” and on O.P.D. slip dated 28.02.2008 it is written “vision RE 6/36”.  In fact right eye of the complainant was operated on 31.08.2007 and it was found on 28.02.2008 on Sitapur Eye Hospital that vision of right eye of the complainant was 6/36, which indicates that after six months of operation, the complainant was able to see clearly by his right eye.  The complainant has produced another O.P.D. slip dated 24.03.2009, i.e. after one year of previous O.P.D. slip and he had not produced any O.P.D. slip before the District Forum in between 28.02.2008 and 24.03.2009.  The complainant has misguided the District Forum.  The complainant has neither adduced any affidavit of any doctor of Sitapur Eye Hospital, nor affidavit of any other eye specialist, which can prove that the opposite party No. 1 has committed negligence during operation or treatment of the eye of the complainant. 

7.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint vide its judgment and order dated 21.10.2013 in the above manner.  Aggrieved by the said order, the complainant has filed First Appeal No. 312 of 2013 for enhancement of compensation, whereas the opposite party    No. 1 has filed First Appeal No. 331 of 2013, thereby assailing the propriety and the legality of the impugned order passed by the District Forum.   

8.       We have heard Sh. Vaibhav Jain, learned counsel for the appellant-      Sh. Yograj Arora in First Appeal No. 312 of 2013 and respondent No. 1 in First Appeal No. 331 of 2013; Sh. Vijaypal Tiwari, learned counsel for the appellant-Dr. Devendra Chandra in First Appeal No. 331 of 2013 and respondent No. 1 in First Appeal No. 312 of 2013 and Sh. Deepak Ahluwalia, learned counsel for respondent No. 2 in both the appeals. We have also perused the entire record of the District Forum as well as case laws produced before this Commission.  

9.       There is no dispute regarding the fact that the appellant-complainant-Sh. Yograj Arora had problem with his right eye and he approached respondent No. 1-opposite party No.1-Dr. Devendra Chandra, Surgeon, Bhagwati Devi Eye Hospital, Bajpur, Kashipur, Udhamsingh Nagar for treatment.  It is also not disputed that on 31.08.2007 opposite party No. 1 operated the cataract of right eye of the complainant and for which he charged Rs. 3,800/- from the complainant. The main dispute is that whether after operation of the complainant’s right eye and treatment by the opposite party No. 1, there was no improvement in the vision of complainant’s right eye and there was any medical negligence as well as deficiency on the part of the opposite party      No. 1. 

10.     Learned counsel for the appellant-complainant in First Appeal No. 312 of 2013 has submitted that the Forum below has not properly appreciated the pleadings as well as documents filed by the appellant-complainant in evidence and the impugned judgment is against the law and facts. The Forum below has passed impugned order beyond its jurisdiction, which was not vested in it.  The Forum below has given finding that the opposite party No. 1-respondent No. 1 has not informed the appellant-complainant prior to the operation that his eye is suffering from Amblyopia and due to this problem, vision shall be improved for a some extent/little bit.  It is negligence on the part of the doctor and comes within deficiency of service. In spite of inference drawn by the Forum below compensation granted is very low, which is against the law.  The Forum below ought to have granted in the light of evidence adduced by the appellant-complainant. The appellant-complainant had adduced complete evidence on record, which was not controverted by respondent No. 1-opposite party No. 1 by adducing any evidence.  The Forum below has ignored the fact that after operation of the complainant’s eye, vision of the eye was decreased, so that the appellant-complainant became unable to do his work and to earn livelihood. 

11.     Learned counsel for the appellant-opposite party No. 1 in First Appeal No. 331 of 2013 has submitted that the impugned judgment and order is against the facts and law. The Forum below has ignored the written statement, affidavit and evidence adduced by the appellant-opposite party No. 1.  The Forum below has ignored the fact that respondent No. 1-complainant has not submitted any expert report of any doctor or specialist by adducing any affidavit or certificate. This proves that the appellant-opposite party No. 1 has not committed negligence during the treatment of complainant’s eye at the time of operation. The Forum below has agreed in the judgment that no negligence has been proved against the appellant-opposite party No. 1 during operation, but in the same judgment the Forum below has passed such impugned order against the appellant-opposite party No. 1, which is against the law. The Forum below has also agreed in the impugned judgment that according to the medical science in case of a disease of Amblyopia even after treatment vision of the eye of the patient does not increase and disease Amblyopia is diagnosed after operation of cataract and due to some changes in any part of the eye, vision of the eye decreases.  But on the other hand, the Forum below has wrongly found the appellant as negligent and give finding in the impugned judgment that because the appellant-opposite party No. 1 did not give any information/advice to the respondent No. 1-complainant before operation that his eye is suffering from Amblyopia disease resulting reduction in vision of his eye.  In fact during treatment after operation of the eye, it was diagnosed that this eye is suffering from the disease Amblyopia and the appellant-opposite party No. 1 informed the respondent No. 1-complainant about the fact of Amblyopia disease.  The respondent No. 1-complainant has not adduced any evidence, which can prove that the appellant-opposite party No. 1 did not inform him about the disease Amblyopia in the eye of respondent No. 1-complainant.  The Forum below has failed to appreciate the fact that on 24.03.2009 it was written on the slip of the doctor that vision RE 2/60 right eye, again on 28.02.2008 it was written as vision RE 6/36 and on 22.01.2008 vision of the eye was RE 6/24.  Right eye of respondent No. 1-complainant was operated on 31.08.2007, which proves that the vision of the eye of respondent No. 1-complainant has increased gradually and respondent No. 1-complainant was able to see clearly.  It is denied that the vision of eye of respondent No. 1-complainant did not increase after operation.  The impugned judgment and order dated 21.10.2013 is against the law and facts and is liable to be set aside.

12.     Learned counsel for respondent No. 2-National Insurance Co. Ltd. has submitted that respondent No. 1-Dr. Devendra Chandra is a qualified doctor and he has treated the appellant-complainant with care and caution and no negligence has been committed by respondent No. 1-Dr. Devendra Chandra.

13.     Admittedly, the appellant-complainant approached to Dr. Devendra Chandra, MBBS, M.S., an eye surgeon for operation of cataract in right eye on 31.08.2007. Dr. Devendra Chandra-opposite party No. 1 operated complainant’s right eye and advised him to take rest at home for six weeks.  The respondent No. 1-Dr. Devendra Chandra charged Rs. 3,800/- as operation expenses.  The respondent No. 1-Dr. Devendra Chandra in his written statement (paper Nos. 13/1 to 13/3 on the District Forum’s record) has specifically mentioned that he operated right eye of the complainant with care and caution for surgery of cataract and after operation, there was no infection in the operated eye as well as no problem in the IRIS of the eye.  The respondent No. 1-Dr. Devendra Chandra had given best antibiotic and in follow-up of the operated eye, fundus of the eye was normal and IOL Lense was also normal.  According to the respondent No. 1-Dr. Devendra Chandra, he diagnosed Amblyopia disease in the operated eye after operation during follow-up.  The respondent No. 1-Dr. Devendra Chandra has placed reliance on medical literature “Parsons’ Disease of the eye Ed. 16 Stephen J. H. Miller Publisher”, in which Amblyopia is defined as partial and complete loss of sight respectively in one or both eyes in the absence of opthalmoscopic or other marked objectively signed.  It is submitted by the learned counsel for respondent No. 1-Dr. Devendra Chandra that in the case of Amblyopia the vision of the patient is low without any pathological changes in eye.  In a patient of cataract the condition cannot be diagnosed preoperatively and is detected only after surgery when visual outcome of the surgery is low without any cause.  In other medical literature “Principal and Practice of Opthalmology Volume 3”, Amblyopia is defined as “The decreased vision in an otherwise normal eye that cannot be improved with glasses.” Learned counsel for respondent No. 1-Dr. Devendra Chandra has submitted before us that Amblyopia disease cannot be diagnosed prior to the operation of cataract of eye.  In the case of appellant-complainant Amplyopia was diagnosed after his operation of cataract in right eye. The District Forum has also gave its finding that none of doctors at Sitapur Eye Hospital have given any opinion that the operation of the complainant done by Dr. Devendra Chandra was not up to the mark or there was any negligence on the part of Dr. Devendra Chandra, an eye surgeon.  There is no expert opinion regarding this fact that there was any negligence in the operation of right eye of the complainant.  The District Foum has also found that there is no negligence on the part of the opposite party     No. 1-Dr. Devendra Chandra. But the Forum below has given his finding that on the basis of record of the operation presumed that the doctor had diagnosed cataract with Amblyopia, though the opposite party No. 1-Dr. Devendra Chandra has specifically mentioned in his written statement in para No. 17 that Amblyopia cannot be diagnosed in case of cataract before operation. The appellant-complainant has not proved any negligence of respondent No. 1-Dr. Devendra Chandra in the operation of cataract of his right eye by adducing any expert evidence.  We have gone through the operation record as well as consent letter of the patient.  The appellant-complainant has given consent to the doctor on 31.08.2007 about some risks as well as decrease in vision after operation of the eye.  From the perusal of operation record on page No. 4 of the consent letter, disease Amblyopia in right eye is written on 24.09.2007.  In this way, according to the medical science, Amblyopia was diagnosed after 24 days of operation during follow up and, therefore, according to the medical literature, it was not possible for the doctor to diagnose the disease Amblyopia in the right eye of the complainant before operation of cataract.  Admittedly, the appellant-complainant was 65 years old man having heavy cataract in his right eye.  It is possible that this was an old cataract and the right eye of the complainant was non-functional due to disuse and due to this reason disease Amblyopia occurred.  This supports the version of doctor that in the patient of cataract, the condition cannot be diagnosed preoperatively and is detected after surgery when visual outcome of the surgery is low without any cause.  The Forum below though has given finding that there was no negligence in conducting the operation by the opposite party-Dr. Devendra Chandra, even then the compensation was awarded on the basis that the disease Amblyopia was diagnosed at the same time when operation of cataract was performed.  But in our opinion, this finding of the District Forum is against the facts and medical literature filed by the respondent-Dr. Devendra Chandra.  In the case of cataract, no one can diagnose the disease Amblyopia preoperatively.  Therefore, the District Forum has committed illegality on this point.

14.     Dr. Devendra Chandra-respondent No. 1 is a qualified eye surgeon having degree of MBBS and M.S.  He has conducted operation of cataract of right eye of complainant with care and caution and has given best antibiotic to the patient.  There is no expert evidence of any expert eye surgeon or of any doctor of Sitapur Eye Hospital against Dr. Devendra Chandra. There is no other documentary evidence filed by the complainant to prove the negligence of the Dr. Devendra Chandra.  So far decrease of vision or no improvement in vision is concerned, it was due to disease Amblyopia, which was diagnosed by the eye surgeon Dr. Devendra Chandra after conducting operation of cataract during follow-up. 

15.     Learned counsel for the appellant-Dr. Devendra Chandra has placed reliance on the judgment of Hon’ble National Commission in the case of Vasant Mehta vs. Dr. Kullin J. Kothari Medical, Bombay; 2007 (1) CPR 338 (NC).  In this case, the Hon’ble National Commission has held that nothing shown that medicines were not proper or line of treatment not proper – No expert evidence or medical literature to counter the material on record – Complainant has completely failed to prove any case of medical negligence – Complaint dismissed.  This citation is fully applicable in the present case.  The complainant has not proved beyond doubt that there was any negligence on the part of Dr. Devendra Chandra or there is any deficiency in service on his part.  The complainant has also not proved the expenditure as stated in the complaint.  There is only evidence on record to show that only Rs. 3,800/- were paid by the complainant to the opposite party No. 1-Dr. Devendra Chandra.

16.     For the reasons aforesaid, we are of the view that the District Forum has not properly considered the facts and circumstance of the case and has recorded an incorrect finding and erred in allowing the consumer complaint.  Impugned order being not sustainable in the eyes of law, is liable to be set aside and First Appeal No. 312 of 2013 filed by the complainant-Sh. Yograj Arora is liable to be dismissed, whereas the First Appeal No. 331 of 2013 filed by the opposite party No. 1-Dr. Devendra Chandra is fit to be allowed.

17.     In view of the above, the First Appeal No. 312 of 2013; Sh. Yograj Arora vs. Dr. Devendra Chandra (Surgeon) and another is dismissed.  The First Appeal No. 331 of 2013; Dr. Devendra Chandra vs. Sh. Yograj Arora and another is allowed.  Order impugned dated 21.10.2013 passed by the District Forum, Udhamsingh Nagar is set aside. No order as to costs. The amount deposited by the appellants at the time of filing the appeal be released in appellants’ favour.

18.     Let the copy of the order be kept on the record of First Appeal No. 331 of 2013.