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  • Ms
    Pushpaleela v. State of Karnataka (AIR
    1999 Karnataka 119)


        

    In Ms Pushpaleela v. State of
    Karnataka (AIR 1999 Karnataka 119) the
    High Court in a Public interest
    litigation under Article 226 of the
    Indian Constitution awarded
    compensation to patients who were
    blinded after cataract operation
    performed in an free eye camp. The
    organisers of the free eye-camp had
    not followed guidelines laid down by
    the government for organizing such
    camp. Carelessness was found to be
    evident in sterilization of
    instruments used during operation was
    most unsatisfactory and the
    paramedical staff who worked in the
    camp was not experienced in handling
    the sterilization and assisting the
    surgeons in the theatre. The entire
    camp lacked expert supervision and
    guidance.

          

  • Sri Bhajahari Chail v. Dr.Debasis Banerjee & another


    200 (2) CPR 299

        

    STATE CONSUMER DISPUTES

    REDRESSAL COMMISSION, WEST

    BENGAL : CALCUTTA

          

    Consumer Protection Act, 1986 – Section 2(1) (d) – Complaint alleging negligence in carrying cataract operation as complainant lost sight in operated eye – Forum dismissed complaint holding that Ops having not charged any amount as operation charges, complaint was not consumer – Appeal – Complainant had produced receipts for Rs.300/- which opposite Party had alleged was donation and not charges for undergoing operation was always done without any consideration in that hospital – Though receipts showed that it was donation but it was in reality charges for operation – Complainant was consumer and dismissal of complaint on maintainability was not justified.

    (Para 4 )

       

    Result : Appeal allowed. Matter remanded.

        

    ORDER

          

    S. C. Datta President – This appeal is directed against order dated 18-2-2000 dismissing the case on the ground that the complaint petition was not maintainable. The Appellant was the complainant before the Forum. He visited OP No.1 on 16-4-1997 for eye check up.OP No.1 advised the complainant to undergo operation for matured cataract in the right eye. OP No.2 is the Rotary Club of Purulia who runs an Eye Clinic in the name of Rotary Service Commission. On enquiry at the counter the complainant gathered that various charges have been prescribed for cataract operation. On 16th May 1997 he went to the said Control and deposited a sum of Rs.50/- as an advance towards the charges for operation of his right eye. On 7th July, 1997 he was admitted to the said Hospital on paying requisite fees Rs.30/- and on the next day the operation was done. On 9th July 1997 he was examined by OP No.1. He complained to the latter that his vision was not cleared. On 11th July, 1997 the Petitioner deposited the balance amount of Rs.250/- to the Sister in charge on duty and obtained a receipt. In all the complainant paid Rs.330/- in 3 instalments . The complainant thereafter visited the surgeon who referred him to Calcutta. There one doctor observed that his retina was totally defected. The Complainant alleges that the operation was carried on in haste and in most negligent manner resulting in the lose of sight in the right eye. According to him the Surgeon had failed to show fair reasonable and complete degree of skill while performing the operation. According he claimed compensation from the Surgeon. The Surgeon having not met his demand he brought this action before the Forum.

       

    2. However, the Forum by the impugned order dismissed the complaint on the sole ground of maintainability. According to the Forum the Ops. having not charged any amount as operation charges, the complainant could not be regarded as a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act. It is submitted that the Forum failed to take note of the money receipt showing deposit of money in advance for the services rendered by Forum, was wrong in holding that the Ops. rendered services free of charge.

        

    3. The appeal is resisted by the Ops. supporting the judgement of the Forum.

       

    4. It is not disputed that the OP No. 1 is a Eye Surgeon who is attached to the Rotary Service Centre (Eye Clinic) Rotary Club of
    Purulia. It is also not disputed that the operation was not performed by the said Surgeon on the right eye of the Complainant for removing the cataract. The Complainant claimed that he paid Rs.330/- in all as charges for the eye operation. He has produced receipts to show the payment made to the said Service Center by
    instalments. Counsel for the OP submits that amount paid by the complainant is donation and not charges for undergoing operation. On the other hand the Complainant claims that the Ops have realized the charges for operation and accommodation as well in the name of donation which is in reality charges for operation and accommodation. There is no material to show that operation is always done without any consideration. It may be remembered that the Complainant approached to the said Service Centre for operation of the cataract in his right eye and made payment voluntarily though no charge is levied. Though the receipts show that it was a donation but, we think that it is in reality charges for operation. The complainant having hired services of the Ops for consideration, it cannot be urged that the Complainant does not come within the meaning of the word `consumer’ as defined in the Consumer Protection act. In view of the above we think that the Complainant falls within the definition of the word `consumer’ and as such he can maintain an action for compensation under the Consumer Protection Act. We have no hesitation to conclude that the Forum was not justified to hold that the case is not maintainable. For the reasons aforesaid we set-aside the impugned order holding that the case is not maintainable.



    5. The Forum is directed to decide the case afresh merit after allowing opportunity to both the parties to put forward their respective cases. The question regarding the maintainability of the case should not be reopened.

      

    Since the case is very old the Forum is directed to dispose of the case as expeditiously as possible preferably within a period of 6 months from the date of communication of the order.

         

    With this observation the appeal be disposed of.

        

    Appeal allowed. Matter remanded.

         

  • K.
    Kuttapan v. Benigar Hospital &
    Ors.

    1996(1)
    CPR 462 (Ker SCDRC)

      

    the complaint was that while treating
    marginal ulcer of the left eye by eye
    washing, some acid (carbolic acid) was
    dropped in the eye by mistake
    resulting in damage to cornea and loss
    of vision of left eye. The Commission
    awarded Rs.100000/- as damages and Rs.
    15000/- as costs to be borne jointly
    by the doctor and the hospital where
    the doctor was employed.

      

  • K.N.
    Lal v. Dr. R.K. Akhaury

    197(3)
    CPJ 112 Bihar (SCDRC)

     

    the complainant, a practising lawyer
    got this right eye operated for
    cataract, but he developed
    complications and lost vision of his
    right eye. Ophthalmologist was held
    grossly negligent for not checking his
    vision and IOP (Intra-Ocular Pressure)
    before surgery.

     

    The basis of the quantum of
    compensation awarded is being
    reproduced for the benefit of the
    readers to understand how these
    calculations are made:

      

    · a sum of Rs.2 lacs as compensation
    for loss of eye-sight in the R.E.
    rendering the complaint disabled to
    the extent of 30%;

     

    · the complainant, on affidavit had
    stated that before loss of eye-sight
    in the right eye he was an Income-Tax
    assessee which after the operation he
    was not. He was not in a position to
    strain only the left eye and his
    professional income had gone down
    considerably; this had not been denied
    by the appellant; assuming monthly
    loss of Rs. 1500/- against his claim
    of Rs. 2000/- per month he would
    suffer a loss of Rs. 180000/- in ten
    years of active life; a sum of Rs.
    180,000/- was allowed on this account
    as a fair recompense for loss of
    profit of his profession;

     

    · although detailed vouchers in
    support of Rs.100000/- as per revised
    claim for expenditure on account of
    treatment at various places had not
    been furnished a sum of Rs.50000/- was
    considered reasonable to meet the cost
    on account of travel, stay, treatment
    and medicines;

      

    · a sum of Rs.25000/- on account of
    mental agony suffered by the
    complainant was allowed;

     

    · the complainant maintained a car
    and with the disability that he had,
    he himself could not drive the same or
    more on foot unattended; he
    necessarily had to engage a driver or
    an attendant for which he rightly
    deserved to be compensated. A sum of
    Rs. 1 lac was allowed on this count.

      

  • Laxmi
    Joy Prasad v. Dr. Cameroon & Ors.

    1998(1)
    CPJ 336 1998 (2) CPR 450 (WB SCDRC)

     

    the complalinant’s 7 year old son,
    studying at St. Andrews School, Ranchi
    as a boarder injured his right eye and
    was operated upon at Kashyap Eye
    Hospital. The following day he was
    handed over to the parents by opposite
    party No.1, who had come with the
    child to Calcutta by train. It was
    alleged that it was negligent to
    discharge the boy and bring him back
    to Calcutta in a most uncomfortable
    and cruel manner, with blood oozing
    from his eyes, despite further
    treatment he still has diminution of
    vision of his right eye.

      

    The State Commission held that the
    school authorities should have
    informed the parents and taken the
    initiative to treat him at a proper
    eye hospital. The poverty of the boy’s
    parents was too well known to the
    Principal of the School and the boy
    was very cruelly treated to meet the
    present pathetic condition. Both the
    Principal and Dr. Kashyap were held
    negligent and asked to jointly and
    sevrally pay a sum of Rs. 50000 as
    compensation.

      

  • Ram
    Babu v. Dr. Anjani Kishore Pd

    1998
    (2) CPR 224: 1998(2) CPJ 684 Bihar
    SCDRC

       

    the complainant was operated for
    cataract in his right eye by Dr. R.P.
    Gupta, on 23.2.94. Due to some
    problems persisting in his eye he was
    referred to Dr. Anjani Kishore who
    diagnosed retinal detachment (RD) and
    operated upon him. His condition
    rather deteriorated and he was
    referred to Dr. Ahuja in Aligarh, who
    noted aphakia with total retinal
    detachment and opined that it was a
    hopeless. Dr. G. K. Nagpal, Aligarh
    also expressed similar views.

     

    The State Commission applied the maxim
    resipsa loquitur but the opposite
    party failed to explain as to how the
    patient’s eye-sight was damaged. Dr.
    Anjani’s findings in the prescription
    were recorded very miserably. The
    finding of vitreous hemorrhage
    recorded in this prescription dated
    29.3.94 was not followed by what
    treatment was to be taken and when the
    patient was to consult him later. A
    compensation of Rs. 1.90 lacs was
    awarded.

      

  • Dr.
    S. B. Jain v. Moon Devi & Anr

    1998(2)
    CPJ 239 (Haryana SC DRC)

     

    the complainant had contacted Dr. S.B.
    Jain for the treatment of her right
    eye. She was advised operation for her
    cataract within the next 3 weeks, as
    it was already too late. The doctor
    conducted the operation, but
    complications occurred and ultimately
    she lost her right eye-sight
    completely. The District Forum, Hissar
    had held deficiency in service on part
    of Dr.S.B. Jain as he had himself
    admitted that it was already too late,
    and it was not a fit case for surgery,
    but he had conducted it on the asking
    of the complainant hereself. Rs. 50000
    was awarded as compensation.

      

  • Christian
    Medical Centre v. A Shahjahan

    1998(3)
    CPJ 242 (AP SCDRC)

      

    the State Commission upheld the
    decision of the District Forum in
    finding deficiency in service on the
    part of the appellant and awarding
    Rs.25000/- as compensation.

     

    Mr. A. Shahjahan aged 65 years was
    operated for cataract of the left eye,
    but complications developed and
    ultimately his eye had to be removed.
    Negligence was held on the ground that
    the doctor cannot take shelter on the
    fact that the complainant himself did
    not reveal the fact before the
    cataract operation was performed.
    Doctors treating illiterate patients
    coming from villages have to question
    about their health and general
    condition. In fact this is the normal
    practice adopted by doctors in respect
    of all patients.

      

    As a result of this omission the
    precaution that had to be taken in the
    case of a diabetic while operating for
    cataract were not taken resulting in
    complications and loss of his eye.

       

  • DR. J. P. GOEL v. SMT. PUSHPA VERMA

    I (2002) CPJ 28

      

    (i) Consumer Protection Act, 1986 – Section 14(1)(d)
    – Compensation – Medical Negligence – Eye operated
    – Stitches found loose – Restitched – Vision lost
    – Negligence on part of opposite party established
    – Complainant entitled to compensation.

                


    Held:
    In view of the above discussion, the present appeal, filed by the appellant, in our opinion, is devoid of substance. As a result of negligence on the part of the appellant, the respondent has lost vision in her right eye and looking to the gravity of the consequences flowing from the negligence on the part of the appellant, the amount of compensation and relief granted by the District Forum to the respondent also appears to be adequate.

      

    For the above reasons, the present appeal, filed by the appellant, in our opinion, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.    
    (Para 10)

      

    (ii) Consumer Protection Act, 1986 – Section2(1)(o)
    – Service – Services rendered free of charge at non-government hospital/nursing home, would be a service, recipient would be a consumer under the Act.

       

    Held: As regards the preliminary objection, taken by the learned Counsel for the appellant to the effect that as no payment was received by the appellant, the appellant was not rendering any service within the meaning of Section 2(1)(o) of the Act, the position is that this very question came up for consideration before the Hon’ble Supreme Court in case Indian Medical Association v. V. P. Shantha & Ors., reported as III (1995) CPJ 1 (SC)=1986-96-Con. 1569 (NS), and Their Lordships of the Hon’ble Supreme Court in the above said landmark decision, while considering the question of medical negligence, have inter alia held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay, and persons who cannot afford to pay, the same are rendered service free of charge, would fall within ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the ‘service’ is rendered free of charge to persons who are not in a position to pay for such services. It was held by Their Lordships that in such a situation ‘free service’ would also be a ‘service’ and the recipient would be a ‘consumer’ under the Act.   
    (Para 7)

      

    Result: Appeal dismissed.

      

    ORDER

      

    Mr. Justice Lokeshwar Prasad, President
    – The present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), is directed against order dated 8.12.2000, passed by District Forum No.-IV, in Complaint Case No. 476/1999
    – entitled Smt. Pushpa Verma v. Dr. J. P.
    Goel.

      

    2. The facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent
    Smt. Pushpa Verma had filed a complaint under Section 12 of the Act before the District Forum averring that the respondent was under the treatment of the appellant, who advised the respondent to get her right eye operated at her residence by him.

      

    It was stated in the complaint, filed by the respondent, that as advised by the appellant, the operation on the right eye of the respondent was performed by the appellant on 23.4.1999 at the residence of the respondent and for the above said operation, the appellant charged an amount of
    Rs. 3,000/- by way of fees. It was stated in the complaint, that after operation when the appellant, on 25.4.1999, at the residence of the respondent was directed to have the same re-stitched at the hospital run by the appellant. It was stated that the process of re-stitching was performed at the hospital of the appellant on 26.4.1999. It was stated that finally the stitches were removed on 17.5.1999. The allegation of the respondent, in the complaint, filed by her was that the respondent suffered pain, swelling in her right eye and when there was no relief, she contacted another doctor, who opined that there was no vision in the right eye. It was stated that the respondent also visited the All India Institute of Medical Sciences, where the Authorities of that hospital also finally informed the respondent that there was no possibility of vision in her right eye. On the basis of the above facts, the respondent filed a complaint against the appellant in the District Forum alleging negligence on the part of the appellant and claimed a compensation of
    Rs. 5,00,000/- for the loss of vision in her right eye due to the negligence on the part of the appellant.

      

    3. The claim of the respondent, in the District Forum, was resisted by the appellant. The appellant, while admitting the fact that the respondent was under his treatment and he had operated the right eye of the respondent, contended that no fees was paid by the respondent to the appellant for the treatment given to her.

      

    4. The learned District Forum, vide impugned order, has held that there was negligence on the part of the appellant resulting in loss of vision in the right eye of the respondent and on the basis of the above findings, the learned District Forum has passed the order being impugned in the present proceedings.

      

    5. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.

      

    6. We have heard the learned Counsel for the appellant at length on the question of admission of present appeal and have also carefully gone through the documents/material on record. During the course of arguments, it was stated by the learned Counsel for the appellant that as no fees was paid by the respondent, the appellant had not rendered any service to the respondent within the meaning of Section 2(1)(o) of the Act and therefore, the complaint, filed by the respondent before the District Forum was not maintainable before a
    Fora, established under the Act. On merits, it was stated by him that there was no negligence on the part of the appellant in treating the respondent. It was stated by him that in view of the above submissions made by him, the present appeal, filled by the appellant, deserves to be allowed and the order being impugned in the present proceedings is liable to be quashed.

      

    7. As regards the preliminary objection, taken by the learned Counsel for the appellant to the effect that as no payment was received by the appellant, the appellant was not rendering any service within the meaning of Section 2(1)(o) of the Act, the position is that this very question came up for consideration before the Hon’ble Supreme Court in case Indian Medical Association v. V. P. Shantha & Ors., reported as III (1995) CPJ 1 (SC)=1986-96-Con. 1569 (NS), and Their Lordships of the Hon’ble Supreme Court in the above said landmark decision, while considering the question of medical negligence, have inter alia held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay, and persons who cannot afford to pay, the same are rendered service free of charge, would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the ‘service’ is rendered free of charge to persons who are not in a position to pay for such services. It was held by Their Lordships that in such a situation ‘free service’ would also be a ‘service’ and the recipient would be a ‘consumer’ under the Act. The above decision of the Apex Court virtually clinches the issue finally because even if the contention advanced by the learned Counsel for the appellant that no payment was received by the appellant, is accepted even then, it is not the case of the appellant that he is rendering free service to all and not charging any fees from anyone whether rich or poor.

      

    8. On merits also, the contention being advanced by the learned Counsel for the appellant, is devoid of substance because it is an admitted fact that operation on the right eye of the respondent was performed by the appellant. It is also not in dispute that the stitches were found loose after the operation on 25.4.1999. The plea taken by the appellant that under pressure from the respondent, the appellant performed the operation at the residence of the respondent, is also devoid of substance because paramount consideration for the appellant while rendering services to his patients is the interest of the patient and in case the appellant felt that it would not be possible for him to operate upon the eye of the respondent successfully at her residence in that event he should have refused to operate the right eye of the respondent at her residence and should have told the respondent in clear-cut terms that the operation cannot successfully be performed at the residence of the respondent.

      

    9. No other point was pressed or urged before us by the learned Counsel for the appellant.

      

    10. In view of the above discussion, the present appeal, filed by the appellant, in our opinion, is devoid of substance. As a result of negligence on the part of the appellant, the respondent has lost vision in her right eye and looking to the gravity of the consequences flowing from the negligence on the part of the appellant, the amount of compensation and relief granted by the District Forum to the respondent also appears to be adequate.

       

    For the above reasons, the present appeal, filed by the appellant, in our opinion, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.

      

    Appeal dismissed.

          

  • ASHPAL SINGH KOHLI v. SHER SINGH

    I (2002) CPJ73

      

    Consumer Protection Act, 1986 – Section 15
    – Appeal – Medical Negligence – Deficiency in Service
    – Loss of vision after cataract operation
    – District Forum held opposite party deficient in service, awarded compensation
    – Hence appeal – Contention, surgery not performed by opposite party
    – Contention not acceptable – Operation performed by opposite party in the presence of witness,
    Rs. 9,000/- paid for that purpose
    – Appeal devoid of substance – Dismissed.

      

    Held – On a perusal of the order, being impugned in the present proceedings and the material on record, it is apparent that on the basis of prescription dated 28.8.1997, Receipt No. 40269 dated 30.9.1997 indicating the payment of
    Rs. 500/- and the affidavit of said Shri Sher Singh coupled with the affidavit of Shri Mahender Singh, the District Forum had arrived at the finding that the operation in question was performed by the appellant and the respondent Sher Singh, in the presence of witness Shri Mahender Singh, had paid a sum of
    Rs. 9,000/- to the appellant for the above said purpose. In our opinion, in the presence of the above facts, no fault can be found with the above findings of the learned District Forum and the same call for no interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.   
    (Paras 7)

      

    ORDER

      

    Mr. Justice Lokeshwar Prasad, President
    – The present appeal, filed by the appellant, named above under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), is directed against order dated 30.5.2000, passed by District Forum No. II in Complaint Case No. 2291/1999
    – entitled Shri Sher Singh v. Shri Ashpal Singh
    Kohli.

      

    2. The facts, relevant for the disposal of the present appeal, briefly stated are that the respondent Shri Sher Singh (respondent No. 1) had filed a complaint under Section 12 of the Act, before the District Forum, averring that he on 28.8.1997 got his right eye operated for cataract from the appellant at his Clinic situated at H-3/18, Model Town, Delhi. It was stated by the respondent in the above said complaint that he had undergone the above said operation on an assurance given by the appellant that after the operation his eye sight would be normal and he would not be required to use spectacles. It was stated that as against the above assurance, after the operation, respondent, said Shri Sher Singh, felt more trouble in his right eye, which was operated upon by the appellant. The respondent, said Shri Sher Singh, contacted another Eye Surgeon, Dr. D. K.
    Patnaik, who found loss of vision in his right eye following the surgery. The respondent contacted other Eye Surgeons/Eye Specialists for the treatment of his right eye, stated to be spoiled by the appellant due to negligence on his part. The respondent Shri Sher Singh, in the complaint filed by him, for the alleged negligence on the part of the appellant, claimed a compensation of
    Rs. 5 Lacs for deficiency in service leading to loss of vision in his right eye.

      

    3. The claim of the respondent, Shri Sher Singh, was resisted by the appellant in the District Forum. The stand taken by the appellant before the District Forum was that the appellant had not performed any surgery and had simply advised the respondent for surgery an year back at the Malkaganj
    Clinic.

      

    4. The learned District Forum, vide impugned order, has held the appellant guilty of deficiency in service and has passed the order being impugned in the present appeal.

       

    5. Feeling aggrieved, the appellant has preferred the present appeal, under Sanction 15 of the Act.

      

    6. We have heard the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. During the course of arguments before us also it was stated by the appellant that he had not performed the operation in question and he simply gave an advice to respondent Shri Sher Singh for surgery, when said Shri Sher Singh contacted him at his Clinic at
    Malkaganj, Delhi. It was stated by him that as he had not performed any surgery on the eye of respondent, said Shri Sher Singh and had not charged any fees from him, there was no question of any deficiency in service on his part and the learned District Forum was not justified in granting the relief to the respondent, as he has been granted by the learned District Forum, vide impugned order.

      

    7. As already stated, the above plea was taken by the appellant before the District Forum also and the same was rejected by the learned District Forum. It was contended by the appellant that there was no material before the District Forum to arrive at the conclusion that the operation in question was performed by him. In our opinion, the above submission, made by the appellant, is devoid of substance. On a perusal of the order, being impugned in the present proceedings and the material on record, it is apparent that on the basis of prescription dated 28.8.1997, Receipt No. 40269 dated 30.9.1997, indicating the payment of
    Rs. 500/- and the affidavit of said Shr Sher Singh coupled with the affidavit of Shri Mahender Singh, the District Forum had arrived at the finding that the operation in question was performed by the appellant and the respondent Sher Singh, in the presence of witness Shri Mahender Singh, had paid a sum of
    Rs. 9,000/- to the appellant for the above said purpose. In our opinion, in the presence of the above facts, no fault can be found with the above findings of the learned District Forum and the same call for no interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no orders as to costs.

       

    Appeal dismissed.

         


         


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Ophthalmologist
       

  • Ms Pushpaleela v. State of Karnataka (AIR 1999 Karnataka 119)
        
    In Ms Pushpaleela v. State of Karnataka (AIR 1999 Karnataka 119) the High Court in a Public interest litigation under Article 226 of the Indian Constitution awarded compensation to patients who were blinded after cataract operation performed in an free eye camp. The organisers of the free eye-camp had not followed guidelines laid down by the government for organizing such camp. Carelessness was found to be evident in sterilization of instruments used during operation was most unsatisfactory and the paramedical staff who worked in the camp was not experienced in handling the sterilization and assisting the surgeons in the theatre. The entire camp lacked expert supervision and guidance.
          

  • Sri Bhajahari Chail v. Dr.Debasis Banerjee & another
    200 (2) CPR 299
        
    STATE CONSUMER DISPUTES
    REDRESSAL COMMISSION, WEST
    BENGAL : CALCUTTA
          
    Consumer Protection Act, 1986 – Section 2(1) (d) – Complaint alleging negligence in carrying cataract operation as complainant lost sight in operated eye – Forum dismissed complaint holding that Ops having not charged any amount as operation charges, complaint was not consumer – Appeal – Complainant had produced receipts for Rs.300/- which opposite Party had alleged was donation and not charges for undergoing operation was always done without any consideration in that hospital – Though receipts showed that it was donation but it was in reality charges for operation – Complainant was consumer and dismissal of complaint on maintainability was not justified.
    (Para 4 )
       
    Result : Appeal allowed. Matter remanded.
        
    ORDER
          
    S. C. Datta President – This appeal is directed against order dated 18-2-2000 dismissing the case on the ground that the complaint petition was not maintainable. The Appellant was the complainant before the Forum. He visited OP No.1 on 16-4-1997 for eye check up.OP No.1 advised the complainant to undergo operation for matured cataract in the right eye. OP No.2 is the Rotary Club of Purulia who runs an Eye Clinic in the name of Rotary Service Commission. On enquiry at the counter the complainant gathered that various charges have been prescribed for cataract operation. On 16th May 1997 he went to the said Control and deposited a sum of Rs.50/- as an advance towards the charges for operation of his right eye. On 7th July, 1997 he was admitted to the said Hospital on paying requisite fees Rs.30/- and on the next day the operation was done. On 9th July 1997 he was examined by OP No.1. He complained to the latter that his vision was not cleared. On 11th July, 1997 the Petitioner deposited the balance amount of Rs.250/- to the Sister in charge on duty and obtained a receipt. In all the complainant paid Rs.330/- in 3 instalments . The complainant thereafter visited the surgeon who referred him to Calcutta. There one doctor observed that his retina was totally defected. The Complainant alleges that the operation was carried on in haste and in most negligent manner resulting in the lose of sight in the right eye. According to him the Surgeon had failed to show fair reasonable and complete degree of skill while performing the operation. According he claimed compensation from the Surgeon. The Surgeon having not met his demand he brought this action before the Forum.
       
    2. However, the Forum by the impugned order dismissed the complaint on the sole ground of maintainability. According to the Forum the Ops. having not charged any amount as operation charges, the complainant could not be regarded as a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act. It is submitted that the Forum failed to take note of the money receipt showing deposit of money in advance for the services rendered by Forum, was wrong in holding that the Ops. rendered services free of charge.
        
    3. The appeal is resisted by the Ops. supporting the judgement of the Forum.
       
    4. It is not disputed that the OP No. 1 is a Eye Surgeon who is attached to the Rotary Service Centre (Eye Clinic) Rotary Club of Purulia. It is also not disputed that the operation was not performed by the said Surgeon on the right eye of the Complainant for removing the cataract. The Complainant claimed that he paid Rs.330/- in all as charges for the eye operation. He has produced receipts to show the payment made to the said Service Center by instalments. Counsel for the OP submits that amount paid by the complainant is donation and not charges for undergoing operation. On the other hand the Complainant claims that the Ops have realized the charges for operation and accommodation as well in the name of donation which is in reality charges for operation and accommodation. There is no material to show that operation is always done without any consideration. It may be remembered that the Complainant approached to the said Service Centre for operation of the cataract in his right eye and made payment voluntarily though no charge is levied. Though the receipts show that it was a donation but, we think that it is in reality charges for operation. The complainant having hired services of the Ops for consideration, it cannot be urged that the Complainant does not come within the meaning of the word `consumer’ as defined in the Consumer Protection act. In view of the above we think that the Complainant falls within the definition of the word `consumer’ and as such he can maintain an action for compensation under the Consumer Protection Act. We have no hesitation to conclude that the Forum was not justified to hold that the case is not maintainable. For the reasons aforesaid we set-aside the impugned order holding that the case is not maintainable.

    5. The Forum is directed to decide the case afresh merit after allowing opportunity to both the parties to put forward their respective cases. The question regarding the maintainability of the case should not be reopened.
      
    Since the case is very old the Forum is directed to dispose of the case as expeditiously as possible preferably within a period of 6 months from the date of communication of the order.
         
    With this observation the appeal be disposed of.
        
    Appeal allowed. Matter remanded.
         

  • K. Kuttapan v. Benigar Hospital & Ors.
    1996(1) CPR 462 (Ker SCDRC)
      
    the complaint was that while treating marginal ulcer of the left eye by eye washing, some acid (carbolic acid) was dropped in the eye by mistake resulting in damage to cornea and loss of vision of left eye. The Commission awarded Rs.100000/- as damages and Rs. 15000/- as costs to be borne jointly by the doctor and the hospital where the doctor was employed.
      

  • K.N. Lal v. Dr. R.K. Akhaury
    197(3) CPJ 112 Bihar (SCDRC)
     
    the complainant, a practising lawyer got this right eye operated for cataract, but he developed complications and lost vision of his right eye. Ophthalmologist was held grossly negligent for not checking his vision and IOP (Intra-Ocular Pressure) before surgery.
     
    The basis of the quantum of compensation awarded is being reproduced for the benefit of the readers to understand how these calculations are made:
      
    · a sum of Rs.2 lacs as compensation for loss of eye-sight in the R.E. rendering the complaint disabled to the extent of 30%;
     
    · the complainant, on affidavit had stated that before loss of eye-sight in the right eye he was an Income-Tax assessee which after the operation he was not. He was not in a position to strain only the left eye and his professional income had gone down considerably; this had not been denied by the appellant; assuming monthly loss of Rs. 1500/- against his claim of Rs. 2000/- per month he would suffer a loss of Rs. 180000/- in ten years of active life; a sum of Rs. 180,000/- was allowed on this account as a fair recompense for loss of profit of his profession;
     
    · although detailed vouchers in support of Rs.100000/- as per revised claim for expenditure on account of treatment at various places had not been furnished a sum of Rs.50000/- was considered reasonable to meet the cost on account of travel, stay, treatment and medicines;
      
    · a sum of Rs.25000/- on account of mental agony suffered by the complainant was allowed;
     
    · the complainant maintained a car and with the disability that he had, he himself could not drive the same or more on foot unattended; he necessarily had to engage a driver or an attendant for which he rightly deserved to be compensated. A sum of Rs. 1 lac was allowed on this count.
      

  • Laxmi Joy Prasad v. Dr. Cameroon & Ors.
    1998(1) CPJ 336 1998 (2) CPR 450 (WB SCDRC)
     
    the complalinant’s 7 year old son, studying at St. Andrews School, Ranchi as a boarder injured his right eye and was operated upon at Kashyap Eye Hospital. The following day he was handed over to the parents by opposite party No.1, who had come with the child to Calcutta by train. It was alleged that it was negligent to discharge the boy and bring him back to Calcutta in a most uncomfortable and cruel manner, with blood oozing from his eyes, despite further treatment he still has diminution of vision of his right eye.
      
    The State Commission held that the school authorities should have informed the parents and taken the initiative to treat him at a proper eye hospital. The poverty of the boy’s parents was too well known to the Principal of the School and the boy was very cruelly treated to meet the present pathetic condition. Both the Principal and Dr. Kashyap were held negligent and asked to jointly and sevrally pay a sum of Rs. 50000 as compensation.
      

  • Ram Babu v. Dr. Anjani Kishore Pd
    1998 (2) CPR 224: 1998(2) CPJ 684 Bihar SCDRC
       
    the complainant was operated for cataract in his right eye by Dr. R.P. Gupta, on 23.2.94. Due to some problems persisting in his eye he was referred to Dr. Anjani Kishore who diagnosed retinal detachment (RD) and operated upon him. His condition rather deteriorated and he was referred to Dr. Ahuja in Aligarh, who noted aphakia with total retinal detachment and opined that it was a hopeless. Dr. G. K. Nagpal, Aligarh also expressed similar views.
     
    The State Commission applied the maxim resipsa loquitur but the opposite party failed to explain as to how the patient’s eye-sight was damaged. Dr. Anjani’s findings in the prescription were recorded very miserably. The finding of vitreous hemorrhage recorded in this prescription dated 29.3.94 was not followed by what treatment was to be taken and when the patient was to consult him later. A compensation of Rs. 1.90 lacs was awarded.
      

  • Dr. S. B. Jain v. Moon Devi & Anr
    1998(2) CPJ 239 (Haryana SC DRC)
     
    the complainant had contacted Dr. S.B. Jain for the treatment of her right eye. She was advised operation for her cataract within the next 3 weeks, as it was already too late. The doctor conducted the operation, but complications occurred and ultimately she lost her right eye-sight completely. The District Forum, Hissar had held deficiency in service on part of Dr.S.B. Jain as he had himself admitted that it was already too late, and it was not a fit case for surgery, but he had conducted it on the asking of the complainant hereself. Rs. 50000 was awarded as compensation.
      

  • Christian Medical Centre v. A Shahjahan
    1998(3) CPJ 242 (AP SCDRC)
      
    the State Commission upheld the decision of the District Forum in finding deficiency in service on the part of the appellant and awarding Rs.25000/- as compensation.
     
    Mr. A. Shahjahan aged 65 years was operated for cataract of the left eye, but complications developed and ultimately his eye had to be removed. Negligence was held on the ground that the doctor cannot take shelter on the fact that the complainant himself did not reveal the fact before the cataract operation was performed. Doctors treating illiterate patients coming from villages have to question about their health and general condition. In fact this is the normal practice adopted by doctors in respect of all patients.
      
    As a result of this omission the precaution that had to be taken in the case of a diabetic while operating for cataract were not taken resulting in complications and loss of his eye.
       

  • DR. J. P. GOEL v. SMT. PUSHPA VERMA
    I (2002) CPJ 28
      
    (i) Consumer Protection Act, 1986 – Section 14(1)(d) – Compensation – Medical Negligence – Eye operated – Stitches found loose – Restitched – Vision lost – Negligence on part of opposite party established – Complainant entitled to compensation.
                
    Held: In view of the above discussion, the present appeal, filed by the appellant, in our opinion, is devoid of substance. As a result of negligence on the part of the appellant, the respondent has lost vision in her right eye and looking to the gravity of the consequences flowing from the negligence on the part of the appellant, the amount of compensation and relief granted by the District Forum to the respondent also appears to be adequate.
      
    For the above reasons, the present appeal, filed by the appellant, in our opinion, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.     (Para 10)
      
    (ii) Consumer Protection Act, 1986 – Section2(1)(o) – Service – Services rendered free of charge at non-government hospital/nursing home, would be a service, recipient would be a consumer under the Act.
       
    Held: As regards the preliminary objection, taken by the learned Counsel for the appellant to the effect that as no payment was received by the appellant, the appellant was not rendering any service within the meaning of Section 2(1)(o) of the Act, the position is that this very question came up for consideration before the Hon’ble Supreme Court in case Indian Medical Association v. V. P. Shantha & Ors., reported as III (1995) CPJ 1 (SC)=1986-96-Con. 1569 (NS), and Their Lordships of the Hon’ble Supreme Court in the above said landmark decision, while considering the question of medical negligence, have inter alia held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay, and persons who cannot afford to pay, the same are rendered service free of charge, would fall within ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the ‘service’ is rendered free of charge to persons who are not in a position to pay for such services. It was held by Their Lordships that in such a situation ‘free service’ would also be a ‘service’ and the recipient would be a ‘consumer’ under the Act.    (Para 7)
      
    Result: Appeal dismissed.
      
    ORDER
      
    Mr. Justice Lokeshwar Prasad, President – The present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), is directed against order dated 8.12.2000, passed by District Forum No.-IV, in Complaint Case No. 476/1999 – entitled Smt. Pushpa Verma v. Dr. J. P. Goel.
      
    2. The facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent Smt. Pushpa Verma had filed a complaint under Section 12 of the Act before the District Forum averring that the respondent was under the treatment of the appellant, who advised the respondent to get her right eye operated at her residence by him.
      
    It was stated in the complaint, filed by the respondent, that as advised by the appellant, the operation on the right eye of the respondent was performed by the appellant on 23.4.1999 at the residence of the respondent and for the above said operation, the appellant charged an amount of Rs. 3,000/- by way of fees. It was stated in the complaint, that after operation when the appellant, on 25.4.1999, at the residence of the respondent was directed to have the same re-stitched at the hospital run by the appellant. It was stated that the process of re-stitching was performed at the hospital of the appellant on 26.4.1999. It was stated that finally the stitches were removed on 17.5.1999. The allegation of the respondent, in the complaint, filed by her was that the respondent suffered pain, swelling in her right eye and when there was no relief, she contacted another doctor, who opined that there was no vision in the right eye. It was stated that the respondent also visited the All India Institute of Medical Sciences, where the Authorities of that hospital also finally informed the respondent that there was no possibility of vision in her right eye. On the basis of the above facts, the respondent filed a complaint against the appellant in the District Forum alleging negligence on the part of the appellant and claimed a compensation of Rs. 5,00,000/- for the loss of vision in her right eye due to the negligence on the part of the appellant.
      
    3. The claim of the respondent, in the District Forum, was resisted by the appellant. The appellant, while admitting the fact that the respondent was under his treatment and he had operated the right eye of the respondent, contended that no fees was paid by the respondent to the appellant for the treatment given to her.
      
    4. The learned District Forum, vide impugned order, has held that there was negligence on the part of the appellant resulting in loss of vision in the right eye of the respondent and on the basis of the above findings, the learned District Forum has passed the order being impugned in the present proceedings.
      
    5. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.
      
    6. We have heard the learned Counsel for the appellant at length on the question of admission of present appeal and have also carefully gone through the documents/material on record. During the course of arguments, it was stated by the learned Counsel for the appellant that as no fees was paid by the respondent, the appellant had not rendered any service to the respondent within the meaning of Section 2(1)(o) of the Act and therefore, the complaint, filed by the respondent before the District Forum was not maintainable before a Fora, established under the Act. On merits, it was stated by him that there was no negligence on the part of the appellant in treating the respondent. It was stated by him that in view of the above submissions made by him, the present appeal, filled by the appellant, deserves to be allowed and the order being impugned in the present proceedings is liable to be quashed.
      
    7. As regards the preliminary objection, taken by the learned Counsel for the appellant to the effect that as no payment was received by the appellant, the appellant was not rendering any service within the meaning of Section 2(1)(o) of the Act, the position is that this very question came up for consideration before the Hon’ble Supreme Court in case Indian Medical Association v. V. P. Shantha & Ors., reported as III (1995) CPJ 1 (SC)=1986-96-Con. 1569 (NS), and Their Lordships of the Hon’ble Supreme Court in the above said landmark decision, while considering the question of medical negligence, have inter alia held that services rendered at a non-government hospital/nursing home, where charges are required to be paid by persons, who are in a position to pay, and persons who cannot afford to pay, the same are rendered service free of charge, would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the ‘service’ is rendered free of charge to persons who are not in a position to pay for such services. It was held by Their Lordships that in such a situation ‘free service’ would also be a ‘service’ and the recipient would be a ‘consumer’ under the Act. The above decision of the Apex Court virtually clinches the issue finally because even if the contention advanced by the learned Counsel for the appellant that no payment was received by the appellant, is accepted even then, it is not the case of the appellant that he is rendering free service to all and not charging any fees from anyone whether rich or poor.
      
    8. On merits also, the contention being advanced by the learned Counsel for the appellant, is devoid of substance because it is an admitted fact that operation on the right eye of the respondent was performed by the appellant. It is also not in dispute that the stitches were found loose after the operation on 25.4.1999. The plea taken by the appellant that under pressure from the respondent, the appellant performed the operation at the residence of the respondent, is also devoid of substance because paramount consideration for the appellant while rendering services to his patients is the interest of the patient and in case the appellant felt that it would not be possible for him to operate upon the eye of the respondent successfully at her residence in that event he should have refused to operate the right eye of the respondent at her residence and should have told the respondent in clear-cut terms that the operation cannot successfully be performed at the residence of the respondent.
      
    9. No other point was pressed or urged before us by the learned Counsel for the appellant.
      
    10. In view of the above discussion, the present appeal, filed by the appellant, in our opinion, is devoid of substance. As a result of negligence on the part of the appellant, the respondent has lost vision in her right eye and looking to the gravity of the consequences flowing from the negligence on the part of the appellant, the amount of compensation and relief granted by the District Forum to the respondent also appears to be adequate.
       
    For the above reasons, the present appeal, filed by the appellant, in our opinion, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.
      
    Appeal dismissed.
          

  • ASHPAL SINGH KOHLI v. SHER SINGH
    I (2002) CPJ73
      
    Consumer Protection Act, 1986 – Section 15 – Appeal – Medical Negligence – Deficiency in Service – Loss of vision after cataract operation – District Forum held opposite party deficient in service, awarded compensation – Hence appeal – Contention, surgery not performed by opposite party – Contention not acceptable – Operation performed by opposite party in the presence of witness, Rs. 9,000/- paid for that purpose – Appeal devoid of substance – Dismissed.
      
    Held – On a perusal of the order, being impugned in the present proceedings and the material on record, it is apparent that on the basis of prescription dated 28.8.1997, Receipt No. 40269 dated 30.9.1997 indicating the payment of Rs. 500/- and the affidavit of said Shri Sher Singh coupled with the affidavit of Shri Mahender Singh, the District Forum had arrived at the finding that the operation in question was performed by the appellant and the respondent Sher Singh, in the presence of witness Shri Mahender Singh, had paid a sum of Rs. 9,000/- to the appellant for the above said purpose. In our opinion, in the presence of the above facts, no fault can be found with the above findings of the learned District Forum and the same call for no interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no order as to costs.    (Paras 7)
      
    ORDER
      
    Mr. Justice Lokeshwar Prasad, President – The present appeal, filed by the appellant, named above under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’), is directed against order dated 30.5.2000, passed by District Forum No. II in Complaint Case No. 2291/1999 – entitled Shri Sher Singh v. Shri Ashpal Singh Kohli.
      
    2. The facts, relevant for the disposal of the present appeal, briefly stated are that the respondent Shri Sher Singh (respondent No. 1) had filed a complaint under Section 12 of the Act, before the District Forum, averring that he on 28.8.1997 got his right eye operated for cataract from the appellant at his Clinic situated at H-3/18, Model Town, Delhi. It was stated by the respondent in the above said complaint that he had undergone the above said operation on an assurance given by the appellant that after the operation his eye sight would be normal and he would not be required to use spectacles. It was stated that as against the above assurance, after the operation, respondent, said Shri Sher Singh, felt more trouble in his right eye, which was operated upon by the appellant. The respondent, said Shri Sher Singh, contacted another Eye Surgeon, Dr. D. K. Patnaik, who found loss of vision in his right eye following the surgery. The respondent contacted other Eye Surgeons/Eye Specialists for the treatment of his right eye, stated to be spoiled by the appellant due to negligence on his part. The respondent Shri Sher Singh, in the complaint filed by him, for the alleged negligence on the part of the appellant, claimed a compensation of Rs. 5 Lacs for deficiency in service leading to loss of vision in his right eye.
      
    3. The claim of the respondent, Shri Sher Singh, was resisted by the appellant in the District Forum. The stand taken by the appellant before the District Forum was that the appellant had not performed any surgery and had simply advised the respondent for surgery an year back at the Malkaganj Clinic.
      
    4. The learned District Forum, vide impugned order, has held the appellant guilty of deficiency in service and has passed the order being impugned in the present appeal.
       
    5. Feeling aggrieved, the appellant has preferred the present appeal, under Sanction 15 of the Act.
      
    6. We have heard the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. During the course of arguments before us also it was stated by the appellant that he had not performed the operation in question and he simply gave an advice to respondent Shri Sher Singh for surgery, when said Shri Sher Singh contacted him at his Clinic at Malkaganj, Delhi. It was stated by him that as he had not performed any surgery on the eye of respondent, said Shri Sher Singh and had not charged any fees from him, there was no question of any deficiency in service on his part and the learned District Forum was not justified in granting the relief to the respondent, as he has been granted by the learned District Forum, vide impugned order.
      
    7. As already stated, the above plea was taken by the appellant before the District Forum also and the same was rejected by the learned District Forum. It was contended by the appellant that there was no material before the District Forum to arrive at the conclusion that the operation in question was performed by him. In our opinion, the above submission, made by the appellant, is devoid of substance. On a perusal of the order, being impugned in the present proceedings and the material on record, it is apparent that on the basis of prescription dated 28.8.1997, Receipt No. 40269 dated 30.9.1997, indicating the payment of Rs. 500/- and the affidavit of said Shr Sher Singh coupled with the affidavit of Shri Mahender Singh, the District Forum had arrived at the finding that the operation in question was performed by the appellant and the respondent Sher Singh, in the presence of witness Shri Mahender Singh, had paid a sum of Rs. 9,000/- to the appellant for the above said purpose. In our opinion, in the presence of the above facts, no fault can be found with the above findings of the learned District Forum and the same call for no interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant, is devoid of substance. The same merits dismissal. Accordingly, the same is dismissed in limine with no orders as to costs.
       
    Appeal dismissed.
         

         

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