A.S.NAGPAL vs Krishan Lal

DISTRICT Forum, Ludhiana vide order dated February 14,1996 directed the appellants to pay a sum of Rs. 60,000/- to the complainant-Krishan Lal within a period of three months of receipt of the order, failing which to pay interest on the aforesaid amount @ 18% per annum till payment. Hence the opposite parties-Dr. A.S. Nagpa and Nagpal Nursing Home are with appeal, challenging the aforesaid order. The complainant has filed Appeal No. 73/96 claiming enhanced compensation. Both the appeals are for disposal. Krishan Lal-complainant approached Dr. A.S. Nagpal for treatment of his right eye on November 21,1993. He was operated upon on that day and discharged from the Nursing Home of the doctor on November 24,1993. According to the complainant even at the time of his discharge, he was suffering from heavy pain and flow of water from the right eye. He approached the doctor again on November 30,1993 and was admitted in the Nursing Home and finally discharged on December 2,1993. However, there was no improvement in the condition of the eye. On December 17, 1993, he contacted Dr. B.S. Chhabra of Mandi Gobindgarh, who advised the complainant to approach Daya Nand Medical College and Hospital, Ludhiana. Thus, the complainant went for treatment at Dayanand Medical College. He lost his vision in the right eye completely and there was loss of vision in the left eye to the extent of 25%. As per allegations made in the complaint, this was all due to the negligence on the part of the opposite party in performing the operation. In the complaint, he claimed a sum of Rs. 30,000/- towards expenses and a sum of Rs. 3 lacs as compensation.

ON notice of the complaint, reply was filed by the opposite parties. Some of the facts were admitted that on November 21, 1993, the complainant was operated upon for a mature cataract in the right eye and he was discharged on November 24,1993. The operation was successful. There was satisfactory improvement. He was advised to approach again for follow up treatment. It was admitted that on November 30, 1993, the complainant visited the opposite party and since there was satisfactory condition of the right eye, he was advised to come again for follow up. It was however denied that the complainant was admitted to the Nursing Home on November 30,1993 or he was discharged on December 2,1993. The allegations of the complainant of approaching Dr. B.S. Chhabra or getting treatment from Dayanand Medical College, were denied for want of knowledge. It was denied that the damage caused to the eye was on account of his negligent act of operating upon the right eye. It was asserted by the opposite party that no fee was charged for the operation and the treatment and the complainant could not be treated as a consumer. A rejoinder was filed by the complainant. Both the parties produced evidence on affidavit and some documents. The District Forum came to the conclusion that the complainant was a consumer and entitled to file the complaint. Even if no fee was charged by the opposite party; but the opposite party was charging fees from the patients approaching him. Reliance was placed on the decision of the Supreme Court in this respect lndian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC). ON going through the material produced by the parties, it was held that damage to the right eye of the complainant was caused on account of negligence on the part of the opposite party in the matter of performing operation for extraction of cataract and thus the amount as stated above was awarded. In appeal, the appellants have filed an application for placing on record the opinion of Dr. G.S. Bajwa of Dayanand Medical College and Hospital, Ludhiana that the infection to the eyes of the complainant at the time of admission to the Dayanand Medical College was 3/4 days prior thereto. It may be observed that the complainant was admitted in the Dayanand Medical College on December 17, 1993 and was discharged on December 23,1993. The aforesaid certificate is also for consideration along with the appeal. The complainant has also produced photo copies of prescription slips primarily indicating that the complainant got treatment from the opposite party on 2nd December also.

Complete guidelines were given by the Supreme Court in the matter of deciding cases of medical negligence in Indian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=1995 (2) CPC 602. Reference be made to the observations in para 27 of the judgment. After making reference to the provisions of Section 13 of the Consumer Protection Act, it was observed as under: "The same provisions apply to proceedings before the State Commission and the National Commission. It has been urged that proceedings involving negligence in the matter of rendering service by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner, but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning as in Chinkeow v. Government of Malaysia, (1967) 1 WLR 813 P.C. or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression "service" as defined in Section 2(1)(o) of the Act."

AT the outset, it may be stated that present is not a case of prima facie negligence on the part of the opposite party as one of such cases as mentioned by the Supreme Court referred to above such as use of wrong gas, leaving inside the patient swabs or other items of operating equipment after surgery, removal of the wrong limb or the performance of an operation on the wrong patient or .giving injection of a drug to which patient was allergic etc. Present is a case where negligence on the part of the opposite party in performing the operation on the right eye was required to be established from direct evidence or expert evidence. The District Forum rightly pointed out that there was no direct evidence of negligence produced by the complainant, and the learned Counsel for the opposite party-appellant has stressed that in the absence of any direct evidence, the complaint was liable to be dismissed. It has further been argued that merely assertions of the complainant either made in the complaint or in the affidavits filed, negligence on the part of the opposite party is not established. We find merit in this contention. The affidavits of some of the persons filed by the complainant that some amount was paid to the opposite party for treating the complainant is of no consequences. After getting his right eye operated from the opposite party, the complainant got himself examined from Dr. Chhabra and thereafter got treatment at Dayanand Medical College, Ludhiana. Prescription slips or discharge certificate from the hospital referred to above were produced. For the reasons best known, the complainant in his affidavit, did not make reference to such documents as produced alongwith the complaint. Without proof, documents could not be treated as evidence to be relied upon. No affidavit of Dr. Chhabra or the doctor who treated the complainant in Dayanand Medical College was produced. In appeal, the opposite party produced one opinion of the doctor who had treated the complainant in the Dayanand Medical College, Ludhiana. No affidavit proving this certificate has been produced in appeal. Such certificate thus cannot be treated as evidence.

UNDER Section 13 of the Consumer Protection Act, procedure is prescribed for trial of the complaints. UNDER Section 13(4) of the Act, the evidence on affidavits could also be received. No doubt, complainant in his affidavit stated that he was operated upon by the opposite party and thereafter, he consulted Dr. Chhabra who referred him to Dayanand Medical College and he was treated there but his affidavit as such cannot be treated as sufficient to prove the prescription slip of Dr. Chhabra or the like documents of Dayanand Medical College as he made no reference to such documents in his affidavit filed before the District Forum. There is another aspect of the matter which deserves to be noticed at this stage and this is one of the ground of appeal filed by the opposite party. Before the District Forum, it was asserted in the written statement as well as in the affidavit filed by the opposite party that an opportunity to crossexamine Dr. Chhabra or any other doctor from Dayanand Medical College, an expert should be afforded. Incidently, in the impugned order, there is no reference in this context. As observed by the Supreme Court in the case of Indian Medical Association, medical negligence on the part of the doctor is to be proved as a fact by leading evidence which may be of an expert. Present is a case which could not be decided simply on the affidavit of the complainant that after few days of the operation, defect was noticed in the right eye and ultimately loss of vision of the right eye and partial loss of vision in left eye was on that account. It may be observed at this stage that there is a gap of about two weeks in between the treatment taken from the opposite party and subsequently, taken from Dayanand Medical College. During this interval of about 15 days, there is no evidence as to the type of treatment taken by the complainant. Only reference is made to the argument of learned Counsel for the opposite party-the appellant that infection was noticed in right eye at the time of admission of the complainant in the Dayanand Medical College and such infection which was bacterial could occur within three to four days and caused damage to the eye. This infection found subsequently could not be co-related with the operation of the eye performed by the opposite party. There is some force in this contention. However, no firm opinion at this stage is being expressed so that case of the parties may not be prejudiced as we are of the opinion that fresh opportunity should be allowed to the complainant as well as the opposite party to lead evidence (expert evidence) that ultimately damage found to the eyes of the complainant was on account of negligently performing operation by the opposite party or not. For the reasons recorded above, the appeal filed by the opposite party is allowed. The order of the District Forum is set aside and the case is remanded to the District Forum for decision according to law after affording an opportunity of leading expert evidence to prove the negligence on the part of the opposite party in performing the operation and that it was on that account that ultimately damage was caused to the eyes of the complainant. Both the parties would be allowed opportunity of producing evidence to prove the documents produced and to produce evidence of expert. The other appeal also stands disposed of as the question of enhancement of amount, if any, would be depending, upon the question as noticed above which requires evidence. Both the parties are directed to appears before the District Forum, Ludhiana on 12.8.96. There will be no order as to costs in the appeals. Appeal allowed. S