B P SHARMA vs N L SHRIVASTAVA

-THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 23. 4. 2004 in complaint No. 223/03 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "district Forum" for short) directing the appellant to pay to the complainant compensation of Rs. 2,00,000 within 30 days failing which interest @ 9% p. a. from 19. 5. 2003 was directed to be paid. Rs. 2,000 as cost of the complaint, were also awarded.

THE facts not in dispute are, that the complainant/respondent has cataract in his right eye. He therefore approached for treatment the appellant No. 2 M/s. Medical Institute, Raipur (hereinafter called ''institute'' for short) on 7. 7. 2002. Appellant No. 1 Dr. B. P. Sharma examined him and advised surgery in the right eye of the complainant. It is further not in dispute that on 12. 8. 2002 complainant''s right eye was operated upon by appellant No. 1 Dr. B. P. Sharma in appellant No. 2 Institute and he was thereafter discharged on the same day. It is further not in dispute that the complainant went for follow-up checkup to the appellant No. 2 Institute on 16. 8. 2002, whereafter he was permitted to go to Korba, where the complainant resided. It is further not in dispute that the complainant developed pain and problem in his operated eye and was advised to come to the appellant No. 2 Institute at Raipur. He went there on 24. 8. 2002. The complainant was again examined by the appellant No. 1 Dr. B. P. Sharma on 24. 8. 2002. It is further not in dispute that as complications developed in the right eye of the complainant, appellant No. 1 Dr. B. P. Sharma referred the complainant to ''shankar Netralaya'', Chennai, a hospital of higher specialty. It is also not in dispute that the complainant was treated from 6. 9. 2002 to 13. 9. 2002 at Shankar Netrayala and ultimately his right eye had to be eviscerated (removal of eye-ball) and cosmetic shell was fitted after operation. It was averred in the complaint that the complainant also visited appellant No. 2 Institute on 26th, 28th and 29th August, 2002 and on 3. 9. 2002. However, there was no improvement in the complications and problems which developed in his operated right eye and, ultimately, appellant No. 1 Dr. B. P. Sharma referred the complainant/respondent to Shankar Netralaya, Chennai. It was further averred that necessary precautions were not observed by the appellant Nos. 1 and 2, as a result of which fungal infection in the complainant''s eye developed. It was further averred that though the complainant was complaining about the complications and problem in his eye, yet he was not attended properly. It was also averred that reference to Shankar Netralaya, Chennai was made belatedly on 3. 9. 2002. It was averred that fungal infection was detected at Shankar Netralaya, Chennai. It was averred that fungal infection developed due to carelessness and negligence on the part of appellant No. 1 in conducting surgery and in not referring the complainant earlier; as a result he had to suffer evisceration of right eye-ball and cosmetic shell was fitted after removal of his right eye. Complainant, therefore, claimed total compensation of Rs. 10,50,000 with interest and cost, etc.

The appellant Nos. 1 and 2 resisted the complaint. They averred that the complainant/respondent had not paid any charges for treatment and therefore he cannot be treated as their consumer and thus the complaint was not maintainable. It was denied that there was any negligence on their part in performing surgery or treatment of the complainant. It was averred that there was proper sterilization of the Operation Theatre of the Institute as well as of the instruments used in the Surgery. It was also averred that there was no delay in referring the complainant to Shankar Netralaya, Chennai. It was averred that the surgery of the complainant was done with due care and that the operation was successful, without any complications or problems. It was further averred that complainant was completely well cared post-operatively for almost about 2 weeks and had no complications till 24. 8. 2002. It was further averred that on 24. 8. 2002 the complainant was examined by the appellant No. 1 and had no complications then. It was further averred that fungal infection in the right eye of the complainant developed while he was at his home and that it was detected by appellant No. 1 for the first time on 3. 9. 2002. It was further averred that since there was no facility of fungal culture in the appellant No. 2 Institute the complainant was informed accordingly and was advised to take further treatment at Shankar Netralaya, Chennai. The stand of the appellant Nos. 1 and 2 was that the fungal infection developed in the right eye and evisceration was necessitated due to negligence, carelessness of the complainant, in not strictly following post-operative advice regarding care and precaution given to the complainant, and his attendant. It was averred that there was no negligence or deficiency in service by the appellant Nos. 1 and 2. It was accordingly prayed that the complaint be dismissed.

THE District Forum in the impugned order held that there was negligence on the part of the appellants; as a result of which fungal infection in the right eye of the complainant developed. It was also held that the appellants have failed to properly investigate and treat the complainant despite the complications and problems faced by him and, thus, they were held to have committed deficiency in service. Accordingly, appellants were directed to pay to the complainant compensation of Rs. 2,00,000 with interest, etc. as noticed above. Learned Counsel for the parties were heard. Perused the record.

LEARNED Counsel for the complainant/respondent has also submitted written synopsis of arguments. A preliminary objection has been raised by the appellant Nos. 1 and 2 that as the complainant/respondent has not paid any charges for his treatment; he was not the consumer of the appellants. Therefore, the complaint was not competent. However it is noticed that a receipt has been filed showing payment of Rs. 2,500 to the appellants. According to the averment in the written version the said fee was not for surgery and the amount was paid towards cost of medicine and stay in the Hospital. However, contrary to this, the receipt as above, clearly shows that the said amount was recovered for I. O. L. operation. In the said receipt, Dr. B. P. Sharma has been mentioned as consultant. Clearly, charges were paid by the complainant for treatment taken by him from the appellants. Therefore, he was a consumer of the appellants and preliminary objection as above of the appellants cannot be sustained. The main question that now arises for consideration is: as to whether the appellants have been negligent in treatment of the complainant and have thus committed deficiency in service?

AS noticed earlier, indisputably, the complainant/respondent approached the appellant No. 2 Institute for surgery as he had developed cataract in his right eye. It is not in dispute that the cataract operation, as above, was performed by appellant No. 1 Dr. B. P. Sharma on 12. 8. 2002, and the complainant was discharged on the same day. After a followup checkup of the complainant on 13th and 16th August, 2002 whereafter he was permitted to go back, to his home at Korba.

THE complainant has alleged that, for the first time he started suffering from pain on the operated right eye on 23. 8. 2002. He accordingly intimated appellant No. 1 Dr. B. P. Sharma about it on telephone. On being advised by the appellant No. 1 that complainant should come to the appellant No. 2 Institute, he went there on 24. 8. 2002. According to the averments in the complaint the complainant was examined by appellant No. 1 Dr. B. P. Sharma on 24. 8. 2002 and thereafter on 26th, 28th and 29th August, 2002 and also on 3. 9. 2002. Indisputably, on 3. 9. 2002 appellant No. 1 referred the complainant to Shankar Netralaya, Chennai. The OP/appellant No. 1 Dr. B. P. Sharma in his written version has admitted that the follow-up checkup of the complainant was undertaken by him on 13th and 16th August, 2002 along with Dr. P. C. Mittal and thereafter on 24. 8. 2002. OP/appellant No. 1 has also averred that the fungal infection was detected by him for the first time on 3. 9. 2002. Appellant No. 1 Dr. B. P. Sharma has reiterated in his affidavit dated 22. 7. 2003 that he examined the complainant after operation on 13th and 16th August, 2002. He has further stated in the said affidavit that there was no sign of fungal infection in operated eye on 24. 8. 2002 and before 3. 9. 2002 (wrongly mentioned in the affidavit as 3. 9. 2003 ). In his second affidavit dated 11. 5. 2004 OP/appellant No. 1 Dr. B. P. Sharma has stated that the complainant did not contact him between 27. 8. 2002 and 2. 9. 2002 and on 3. 9. 2002 he referred the complainant for proper care and treatment to higher specialty hospital Shankar Netralaya, Chennai. It may be noticed in the above context that though Dr. B. P. Sharma in his affidavit dated 22. 7. 2003, stated that he examined the complainant on 13th and 16th August, 2002 with Dr. P. C. Mittal. However, as per the affidavit of Dr. P. C. Mittal dated 11. 5. 2003, he examined the complainant along with Dr. B. P. Sharma on 16. 8. 2002 and thereafter on 26. 8. 2002. It may be noted in the above context that, the OP/appellant No. 1 in his written version in para 1-E has averred that Dr. P. C. Mittal examined the complainant on 13. 8. 2002, 16. 8. 2002 and 24. 4. 2002 (possibly 24. 8. 2002 ). Thus, there is discrepancy in the affidavits of the appellant No. 1 and Dr. P. C. Mittal and the averments in the written version.

It may further be noticed in the above context that though the complainant has specifically averred that he was also examined by the appellant No. 1 Dr. B. P. Sharma on 26. 8. 2002, 28. 8. 2002 and 29. 8. 2002; the said averments have not been specifically denied by the appellant No. 1, in his written version. However, from the affidavit of Dr. B. P. Sharma it would appear that he denies having examined the complainant on 28. 8. 2002 as would appear from his affidavit dated 11. 5. 2003, in which it has been stated that the complainant after 26. 8. 2002 visited appellant No. 2 Institute on 3. 9. 2002. Assertion as above of Dr. B. P. Sharma does not appear to be true as would be clear from the following discussion.

THE complainant has stated that he had approached the appellant No. 1 Dr. B. P. Sharma and was examined on 28. 8. 2002 as well as on 29. 8. 2002. In the above context, report of Ultrasound examination of right eye marked K-19 in the paper book at page No. 39 may be referred to. The said report dated 28. 8. 2002 is of Dr. Sanjay Tiwari''s Surgical Nursing Home, Raipur. The said document indicates that the complainant was referred by Dr. Mrs. Sushma Verma, for the said test and the Ultrasound examination of the right eye on the complainant showed: "debris In Anterior Chamber - ? Inflammatory exudate. Vitreous Membranes - ? Haemorrhage. "

According to the complainant he showed the said report to OP/appellant No. 1 Dr. B. P. Sharma. The averment of appellant No. 1 Dr. B. P. Sharma, in the above context was that the complainant undertook the treatment and test as above, without advice of the appellant No. 1 Dr. B. P. Sharma and that he never approached him on 28. 8. 2002. However, a receipt of medicine from MMI Institute has been filed by the complainant, which shows that the complainant has purchased medicines from the appellant No. 2 Institute, on that date i. e. 28. 8. 2002, prescribed by the appellant No. 1. It is therefore abundantly clear that the complainant had consulted the appellant No. 1 on 28. 8. 2002, as was asserted by him; otherwise there was no necessity for him to go all the way to MMI which is at a distance from the city of Raipur of about 6 to 8 kms. , for simply purchasing the medicine on that day from the shop situated at the appellant No. 2 Institute. The above aspect of the matter has also been adverted to by the District Forum, in detail, and it has specifically recorded finding that Dr. B. P. Sharma has deliberately suppressed the fact and denied that the complainant did approach him on 28. 8. 2002, as would be clear from the discussion in paras 8 and 9 of the impugned order. In the above context, it may also be noticed that the medicines were prescribed by appellant No. 1 Dr. B. P. Sharma, as per document marked as K-15. The said document/prescription, by appellant No. 1 Dr. B. P. Sharma appears to be written in most unsatisfactory manner, as has been rightly discussed and observed by the District Forum also. In the said prescription history or diagnosis has not been recorded and dates have also not been mentioned in the said document. There is no way to ascertain from the said document as to on what dates and with what directions the medicines were prescribed by appellant No. 1 to the complainant.

IN the circumstances, it is clear that the complainant did approach the appellant No. 1 along with report of Ultrasound examination of his right eye on 28. 8. 2002, as has been alleged by him. The said report of Ultrasound shows presence of debris in the anterior chamber and inflammatory exudate. There was also suspicion of vitreous membranes haemorrhage as has been mentioned therein. It may be mentioned, in the above context that though it is true that complainant appears to have been advised to undergo Ultrasound examination by Dr. Mrs. Shushma Verma as has been mentioned in the Ultrasound Report, but that by itself would not mean and imply that the complainant did not show it to the appellant No. 1 Dr. B. P. Sharma. In fact as has been explained on behalf of the complainant/respondent that though he undertook Ultrasound examination on the advice of another expert Dr. Mrs. Shushma Verma, but he showed the said report to appellant No. 1 Dr. B. P. Sharma as advised by Dr. Mrs. Shushma Verma. It may be noted in the above context that complainant has been suffering from 24. 8. 2002 and appears to have undertaken Ultrasound examination. Therefore, it is not possible and believable that he would not have contacted appellant No. l under whose treatment he was; more so because he admittedly approaches appellant No. l Dr. B. P. Sharma subsequently on 3. 9. 2002 on which date the appellant No. l referred him to the higher specialty hospital (Shankar Netrayala, Chennai ). Therefore, it appears that the appellant No. 1 Dr. B. P. Sharma has deliberately tried to suppress that he was consulted by the complainant on 28. 8. 2002 as well as on 29. 8. 2002 along with Ultrasound Report. It does not appear from the material and documents placed on record as to what precautionary or curative treatment was given by the appellant No. l to the complainant despite seeing the said report. It appears that in order to the hide or suppress his shortcoming or omission, as above, the appellant No. l Dr. B. P. Sharma has vainly tried to deliberately suppress the above fact, by taking the stand that after 28. 8. 2002, complainant approached him on 3. 9. 2002; on which date he referred him to higher specialty hospital. , by his letter of that date i. e. 3. 9. 2002 marked as K-9 in the paper book.

IT is not in dispute that the complainant was treated in Shankar Netralaya, Chennai and ultimately his right eye had to be eviscerated. Case summary of Shankar Netralaya, Chennai marked as K-5, in the paper book is as below: "mr. N. L. Shrivastava (Our MRD No. 555333) was seen here on 6. 9. 2002. The patient came to the emergency with complaints of pain, redness and watering in the right eye since 22. 8. 2002. He complained of worsening of symptoms and further deterioration of vision over the last few days. The patient had under-gone extra capsular cataract extraction with intraocular lens implantation on 12. 8. 2002 at Raipur in the right eye. The patient was on topical anti-biotics and systemic anti-fungal agents and anti-biotics till the time of presentation. His vision was perception of light with accurate projection of rays with and movements close to face in the right eye and 6/12; N12 in the left eye. Slit lamp examination of the right eye showed edematous cornea with corneal infiltrate involving superior two-thirds of the cornea along with scleral involvement. There was a large hypopyon. There was purulent conjunctival discharge. Anterior chamber details were not seen clearly. Slit lamp examination of the left eye was normal except for lens changes. Digital tension was raised in the right eye. Applanation was 14 mmhg in the left eye. There was no view of the fungus in the right eye. Fungus examination of the left eye was normal. The patient was seen by me on 6. 9. 2002, when the right eye findings were confirmed. Ultrasound examination of the posterior segment was normal. The patient was advised corneal scrapping, which showed plenty of fungal filaments. He was diagnosed to have fungal infection of the cornea and the superior sclera post operatively. The patient was started on topical Amphotericin B 0. 15% every hour along with topical Natamycin eyedrops every hour, Ciplox eyedrops every hour along with cycloplegic and anti-glaucoma medication. He was also continued on systemic antifungal agents. Subsequently, the fungus was grown on culture also. In spite of intensive anti-fungal treatment, the patient did not show any clinical improvement and repeat Ultrasound showed a few vitreous echoes also. Since there was an extensive scleral involvement superiorly, it was decided it would be difficult to salvage the right eye. The patient was advised evisceration of the right eye under general anaesthesia. He underwent the same on 11. 9. 2002. Post-operative period was uneventful. The patient was subsequently, reviewed on 13. 9. 2002 and underwent cosmetic shell fit for the right eye. He was last seen by me on 16. 4. 2003, when the socket was healthy in the right eye. He had posterior subcapsular cataract with nuclear sclerosis in the left eye and his vision in the left eye was 6/18; N6. He was advised phacoemulsification with intraocular lens implantation in the left eye under local anaesthesia whenever he desires. "

THE above discharge summary, by Shankar Netralaya, Chennai, would indicate that the complainant had reported in the said hospital that there was pain, redness and watering in his right eye since 22. 8. 2002 and there were worsening of symptoms and deterioration of vision for over the last few days. It was also stated in the said summary that slit lamp examination of the right eye showed edematous cornea with corneal infiltrate involving two thirds of the cornea along with scleral involvement and that there was a large hypopyon. There was purulent conjunctival discharge and anterior chamber details were not seen clearly. It appears that initially corneal scraping was advised and same showed plenty of fungal filaments. The diagnosis was fungal infection of the corneal and the superior scleral post operatively. Ultimately, since intensive anti-fungal treatment did not show positive result, the right eye of the complainant was eviscerated on 11. 9. 2002 at Shankar Netralaya, Chennai. Thus, it appears that the complainant had been suffering from fungal infection in the right eye, prior to his examination and treatment at Shankar Netralaya. It may be reiterated that the complainant had approached the appellant No. 1 Dr. B. P. Sharma on 24. 2. 2002 and thereafter from time-to-time including on 28. 8. 2002. The complainant also showed the Ultrasound Report which indicates debris in anterior chamber inflammatory exudates, etc. The symptoms and finding of the test report as above should have been taken due note of, by the appellant No. 1 Dr. B. P. Sharma, and he should have prescribed proper treatment therefor and, if needed, should have immediately referred the complainant to higher specialty hospital, as he did belatedly on 3. 9. 2002. It may further be noted that appellant No. l Dr. B. P. Sharma did not do so, and in fact has tried to take a false stand and chosen to deny that the complainant approached him on 28. 8. 2002. However, as noticed by the District Forum and also mentioned in this order earlier, the complainant did go to appellant No. 2 Institute, and consulted Dr. B. P. Sharma on 28. 8. 2002. However, despite findings of Ultrasound Report as mentioned above and despite problem of the complainant which possibly could be co-related to the fungal infection that he was diagnosed to be suffering, no treatment for fungal infection was given to him by appellant No. 1 Dr. B. P. Sharma. In the above context, the statement of Dr. S. L. Adile, who is an Ophthalmologist and Dean of Medical College, Raipur, may be referred. In his statement recorded by the District Forum, Dr. Adile has stated that the complainant was not prescribed any anti-fungal medicine by Dr. B. P. Sharma. It would further appear from the said statement of Dr. Adile that eyes can get damaged within a short time, after the fungal infection. That being so, had appellant No. 1 been prompt and careful in treating the complainant and/or referring him to Shankar Natralaya his eye could have been possibly saved.

Thus, from the foregoing discussion, it would be clear that the appellant No. l Dr. B. P. Sharma has made deliberate attempt to conceal that the complainant approached and consulted him on 28. 8. 2002. Moreover, it may be noticed that the complainant was not advised Ultrasound Examination by appellant No. l Dr B. P. Sharma, which was advised by Dr. Mrs. Shushma Verma and undertaken by the complainant. Thus, keeping in view the complaints and complication in the right operated eye, Ultrasound examination ought to have been suggested by Dr. B. P. Sharma, which he failed to do. Further, on the Ultrasound examination, being shown to the appellant No. l Dr. B. P. Sharma, he should have prescribed anti-fungal medicine, and should have referred the complainant to higher specialty hospital, without delay. However, Dr. B. P. Sharma has not done so. Further the complainant was referred belatedly on 3. 9. 2002 to the higher specialty hospital - Shankar Netralaya, Chennai by appellant No. 1. As would be clear from the statement of Dr. Adile the fungal infection possibly worsened and became acute due to delay as above, which resulted in the loss of right eye by evisceration thereof.

TO reiterate and sum up, it appears that the appellant No. l has been casual in treating and prescribing medicines to the complainant as would be clear from his prescription slip in which even dates of prescriptions have not been mentioned. The prescription slip also does not mention the condition of the patient, and also no history or diagnosis has been recorded therein. The above aspect of the matter has also been dealt with earlier, in this order. Appellant No. l Dr. B. P. Sharma has also tried to conceal the correct position regarding treatment of the complainant and appears to have deliberately made an incorrect statement to the effect that the complainant did not approach him on 28. 8. 2002. It also appears that the appellant No. l has been negligent in administering followup treatment to the complainant, resulting in the predicament faced by the complainant. Therefore, the findings as above of the District Forum after due consideration of various facts, circumstances of the case and material placed on record, appear to he wholly justified that the appellants are negligent and have committed deficiency in service. So far as the quantum of compensation is concerned the complainant is a retired Excise and Customs Officer. He had to undergo agony, torture, harassment and financial loss on account of the long treatment, and ultimate loss of his right eye - a valuable organ. Therefore, the compensation awarded by District Forum, does not seem to be excessive and calls for no modification.

THIS appeal, therefore, is without substance and is accordingly dismissed. The impugned order is affirmed. The appellants shall pay to the respondent / complainant, cost of this appeal, which is quantified at Rs. 5,000 (Rupees five thousand) only. Appeal dismissed.