D Philip vs Narayana Netralaya

THIS complaint is filed on

3.1999 BY the above person against the above O.Ps. 1 and 2, praying for grant of Rs. 600 lakh as damages, and compensation to the complainant, direct the above O.Ps. to pay the same with interest from the date of complaint till payment @ 18% p.a. in the interest of justice and equity. Brief facts of the complaint are that D. Philip was working in Fine Line, No. C -93, ITI Industrial Estate, Bangalore -560048, as a mechanic, on the Drilling Machine. On 24.4.1998 at about 11.00 a.m., while drilling the Iron piece of the drill bit has broken and flew onto his right eye. He rushed to Dr. Ravi of Kapila Clinic, who examined him and advised to rush to OP 1 hospital. But he went to MINTO Hospital, who after examining him gave the report produced. He suffered severe pain in the eye (right) on the night of 24.4.1998, and directly went to OP1 hospital, and got him admitted on 25.4.1998. OP 2 Dr. K.S. Kumar examined him and advised to undergo operation immediately, and Iron piece fixed in his eye can be removed and asked him to get X -ray in Shastri Memorial Hospital. He told that the operation cost Rs. 20,000. In the presence of the Proprietor of the Fine Line, C -93, after bargain, it was brought down to Rs. 15,000. D. Philip and his wife went to X -ray, and wife brought the X -ray from Shastri Memorial Hospital. The patient was dressed with operation robe, and taken to operation table. After the operation, he was told BY the Doctor that it was not successful, and OP 2 behaved rashly with D. Philip and his wife, and demanded Rs. 10,000 which was paid on 1.5.1998 as per Receipt No. 2025 of OP 1 Hospital, produced. They gave Discharge Summary, and in diagnosis clearly said RE penetrating eye using with Endophthalmitis with 7 retained IGFB dated 29.4.1998, produced. On the request of Philip, OP 2 examined him thrice, and said he is not the God to give him eye, and it is not like childs play, and behaved unpleasantly and rudely, and as a Doctor of that stature, and did not advise anything to the patient on 25.5.1998 he went to MINTO Hospital and got him examined as he was able to bear excruciating pain. It was reported that eye is completely lost and Iron piece in the eye and nerve connecting to the eye has been damaged in the process trying to remove it, and nothing can be done, which is produced. Patient went to Medinova and obtained 2nd opinion in getting C.T. Scan of the eyes on 3.6.1998, and in the report they have stated lens is absent, and cannot be cured, is produced. 2. Patient had insisted for the scanning of his right eye in OP 1 Hospital, which was refused BY them, as not available there, and it is only done in Manipal Hospital, and only after 2 months can be done, as told BY OP 2, when patient got him examined in MINTO Hospital on 24.4.1998, Doctor there told that the eye is alright, but because of the presence of foreign object in the eye, there is severe pain, which is intolerable, which made him to go to OP 1 Hospital, on the advice of Dr. Ravi of Kapila Clinic, and went in good faith with an intention that his eye will be operated BY an experienced expert Doctor, and they will be able to remove the Iron piece, a foreign object in the eye. But due to negligence of the Doctor, OP 2 and deficiency in service, his right eye was damaged beyond all hopes, mainly because of inexperience and negligence on the part of OP 2 Doctor. When X -ray and Scanning was done, it was found that they operated his eye in a negligent manner resulting the loss of eye sight of the right eye of the patient. Operation is done for consideration as paid, and OPs 1 and 2 rendered service to him, as such he is a consumer under the Consumer Protection Act. OPs are bound to render service under the above Act. Because of negligence of OP 2 Dr. K.S. Kumar, who is working in OP 1 Hospital. OPs are liable to pay compensation to the patient, who had filed the complaint. His job is with drilling Machines, and eyes are most important for that nature of job, as an important organ in his day to day work. It has been lost and he is totally blind of the right eye, and his efficiency is dropped, and lost promotion in the employment. He is not able to move freely, because loss of sight in the right eye. For these losses, OP 2 is liable to pay Rs. 5.00 lakh to him. D. Philip, original complainant has got a daughter to look after her and also his wife. He has lost opportunity to earn more due to negligence on the part of O.Ps. 1 and 2. OP 1 Hospital is liable to pay Rs. 1.00 lakh. Complaint is in time. It was filed before the District Forum which returned, as claim exceeds its jurisdiction. Versions of OP 1 Hospital is complaint is liable to be dismissed as instead of representing the original complaint returned BY the District Forum in Complaint No. 1117/1998 after it filed the version there as to jurisdiction, the new complaint is filed before the Commission, adding OP 2 as a party on the basis of objection filed BY it. Different stand is taken in the present complaint. On 25.4.1998, complainant D. Philip visited OP 1 Hospital at about 10.00 a.m. with reference letter of Dr. K. Ravi of Kapila Eye Clinic. He was referred to OP 2, who treated him. Normally Rs. 20,000 is the Hospital charge for such operation required to be performed BY OP 2 to the patient. Looking to the financial background of the patient, and on his request 50% concession was given BY fixing Rs. 10,000 as hospital charges, which is normally to be settled before discharge from OP 1 Hospital. D. Philip was allowed to pay at his convenience, and be paid on 1.5.1998. There was no demand for money. OP 2 Dr. Kumar who treated the patient is a duly qualified Doctor with vast experience in the field. He has conducted over 70 operations of the similar nature performed on the patient. He is trained in Shankar Nethralaya, Chennai, in treating cases, are in question, and awarded Gold Medal for best Utreoretinal fellow. He worked as Registrar in Vitreo Retina at Lions Eye Hospital, Bangalore. He also received additional training at Nagoya Hospital, Japan for handling Retinal diseases. OP 1 hospital is a super speciality and referral Hospital just like Dr. K. Ravi, a qualified Surgeon, other eye Doctors refer their cases, needing special care in regular basis, because of the facilities and trained man power. Service rendered BY OP 1 Hospital is well appreciated BY Lions Club International and Rotary Club, an international institution. It is awarded with vocational excellence award, produced. OP 1 Hospital conducts eye camps on regular basis at various places, apart from in the Hospital premises OP 1 and its team have conducted 55 eye operations in rural areas in which 45000 free eye cataract, and 30 free cornea grafting operations have been performed since 1995, more than 20000 children have been examined in about 20 schools in free eye servicing programme. In deserving cases, maximum possible concessions are given. OP 2 has taken maximum care in the instant case of the OP patient, and there is no negligence in his duty towards him. By the time complainant patient reached OP 1 Hospital, his right eye was damaged extensively due to inordinate delay of more than 24 hours, neither OP 2 nor OP 1 Hospital can be attributed with any negligence. In view of the seriousness, prior to operation, special consent was obtained, apart from regular consent after explaining the treatment to be given to the patient complainant is not entitled to any compensation as claimed which is misconceived. OP 1 is not liable to pay it. OP 1 hospital and OP 2 doctor have been duly insured with New India Assurance Co., under the Policy No. 4867150004167. If any compensation were to be awarded, insurer is to pay the same to complainant. There is a non -joinder of the Insurance Company complainant has been instigated BY others, with ulterior motive to malign the name of OP 1 institution, and also to make wrongful gain to lodge the complaint which has to be dismissed with costs.

VERSION of OP 2 is as that of OP 1 in paras 1 to 3, 10, 11 to 13, 15 and 16 of his version, in addition to that OP 2 has added that on examination of the patient, it was noticed by him that front portion of the eye (Anterior segment) showed sever lid swelling with redness and pus formation (4mm hypopyon). The cornea was oedemations (collection of water) and cut injury (2 mm limbal toer) at 3.00 Oclock position was seen. Black portion of the eye (Ins pattern) was lost due to severe pus formation and then for lens could not be seen. There was no view of the back portion of the eye and view is (fundus) and no foreign body could be visualized. In view of these findings, clinical diagnosis of penetrating eye injury (right eye) with acute post injury pus formation with suspected intraocular foreign body was made and the patient was clearly explained the consequences -on the basis of examination, it was not possible to definitely make diagnosis of retained foreign body (metalic piece as told by the patient) in the eye. However, infection was so severe that any delay in removing the pus would be fatal to the eye sight. Complainant was advised to have C.T. Scan immediately. However, complainant pleaded inability, on the ground of cost secondary measure was advised to have at least X -ray. Intravenous antibiotic were started immediately, after arrival of the complainant. X -ray showed a radio opaque foreign body in relation to the eye. But it was not clear from the same whether foreign body was within the walls of the eye ball or inside the eye ball. However, as removal of pus and foreign body could be achieved, it found with the eye, by the same operation it was agreed upon to go ahead with the vitrectomy surgery. The patient was explained that the removal of the pus and the foreign body will be done only after viewing X -ray as the presence of the same could not be ascertained otherwise. After viewing the X -ray brought by the complainants wife, it was explained to both that there is a possibility of the foreign body (metal piece) being in the eye. By then infection has come even more severe. It was made clear that an urgent operation to remove the pus inside the eye is of primary importance. In view of the critical condition of the eye special informed consent was taken from the wife after explaining the situation, in addition to regular consent taken before any other surgery, produced at R1, R2. During surgery, pus within the eye is removed and antibiotic was injected. Despite thorough search foreign body was not seen within the eye ball. However, from the circumference of the injury, and X -ray findings of the metalic object in relation to the eye, it was felt that the foreign body could possibly be lodged in the walls of the eye ball. To enable removal of this, proper location with the C.T. Scan was necessary and the same was advised to the patient to be got done elsewhere as O.P. 1 Hospital does not have it, which is not available in any exclusive Eye Hospital. However, he did not come up for follow up thereafter. During the operation of the nerves of the eye (retina) was found to be severely damaged due to infection (aggravated by delay of 24 hours) and the same was clearly explained to the patient, immediately after surgery, and it was also mentioned in the thanking letter to Dr. Ravi. It was made clear to the patient even before operation that the condition of the right eye is critical and it is only to explore the remote possibility of storing the eye sight, the operation was advised, consequences of the operation was also told to his wife and him. He is a duly qualified Doctor having vast experience in treatment of problems related to eye. He is specially trained in the treatment of similar problems at the renowned Shankar Nethralaya, Chennai, following which he worked as Registrar in Vitreo Retina at Lions Hospital, Bangalore. By no stretch of imagination, it could be said that there was any kind of negligence or deficiency in service on his part. It was he who advised C.T. Scan to the patient, and not insisted for it nor he refused it. OP 2s liability for compensation is the imagination of the complainant/patient. Since there is no negligence on his part, he is not liable to pay it, as claimed or for any amount. Complaint is frivolous besides mischievous, and has filed with ulterior motive of unlawful gain. Complaint to be dismissed with exemplary costs.

COMPLAINANT has relied on Exts. C1 to C7 and filed his affidavit. He is cross -examined as CW 1. OPs have relied on Exts. R1 to R3(b), and both OPs 1 and 2 have filed the affidavit. OP 2 is cross -examined as RW 1. Heard the complainants Counsel. OPs Counsel has cited cases, and written arguments are filed with case laws. The learned Counsel for complainant has argued that D. Philip was a Mechanic in Drilling Machine in Fine Line, ITI Industrial Estate. On 24.4.1998 at 11.00 a.m. iron piece of drill bit broke and flew to his right eye. He approached Dr. Ravi of Kapila Clinic. He examined and advised to rush to OP 1 Hospital. Eye guard was not provided by the Master of the Unit. Complainant went to MINTO Hospital and got a report. There was severe pain in right eye. He went to OP 1 hospital on 25.4.1998 and got him admitted. OP 2 Dr. Kumar examined him and suggested operation to remove iron piece, and asked him to get X -ray from Shastri Memorial Hospital. Cost of the operation was Rs. 15,000. Complainant/patient was operated by OP 2, but it was not successful. OP2 misbehaved with the patient and his wife and collected Rs. 10,000. Points for consideration are whether - (1) OP 2 misbehaved with the patient and his wife, and the eye operation performed by OP 2 was not successful, due to his negligence, and there was a deficiency in service by OPs 1 and 2? (2) The complainant is entitled for the compensation from them as claimed? (3) What Order

We answer it in the: (1) Affirmative (2) Affirmative in part (3) See operative portion of the Order

DISCUSSIONS

WE have perused the complaint, version, affidavits of both sides, and cross -examination of CW 1 and RW1, and Exts. C1 to C7 and Exts. R1 to R3, and also written arguments of OPs, and case law produced. We have taken note of oral arguments. They are considered in the below paras. The oral evidence of CW 1 and RW 1 in the light of above material requires consideration. The affidavit of complainant Philip (now deceased) and of OPs 1 and 2 doctors Bhujang Shetty and K.S. Kumar, are in line of their pleadings, which are already considered in the above paras. Cross -examination of both CW 1 and RW 1 are relevant now, which is dealt with below. CW 1 - Philip, s/o Doreswami in the cross -examination has deposed that on 24.4.1998 at 11.00 a.m. he was working in the mill, iron bit hit his right eye. He went to Dr. Ravi, eye surgeon examined him and found injury is caused to right eye, and asked him immediately to go to OP 1 Hospital, but he went to MINTO Hospital, where he was examined, and was asked to come next day, as iron bit is in his eye. Ext. C1 and Ext. C2 are the records of it. There he was told to get a C.T. Scan done, and there is no other problem in the eye next day, instead of going there, he went to OP 1 Hospital at 9.20 a.m. He had pain in the eye. There first aid was done. After examination, he was told there is iron bit in the eye, and suggested X -ray for conducting operation. His wife brought the X -ray report at 6.00 p.m. Ext. R1 is signed by his wife, signature in Ext. R3 as (a) is not hers. After receipt of X -ray report, immediately OP 2 operated his eye next day after operation his eye sight was lost, as learnt. He paid Rs. 5,000 in the beginning, and balance on 1.5.1998. OP1 has issued Ext. C3. He has denied the suggestions, that after the operation, whether eye will be rectified or not, was told by the Doctor, and Doctor asked to get the C.T. Scan of his eye and come back, and Dr. Ravi told after examining his eye that if does not go immediately to the Hospital, there will be difficulty in the eye, and in the OP 1 Hospital, OP 2 Doctor performed operation, to prevent trouble to the other eye, and to prevent brain problem, and the trouble to his right eye was not due to the carelessness of the OP 1 Hospital Doctor OP 2, but due to delay in going there, and concession given in the operation. At the time of discharge, he was not asked to get C.T. Scan done and come back.

IN cross -examination of OP 2 as RW 1 he has deposed that Dr. Ravi referred the patient Philips with the diagnosis of his eye as penetrating injury to right eye with suspected intraocular foreign body, who is his professional colleague. When patient came to him, infection had set -in in the right eye. He started on the patient intravenous antibiotics and eye drops immediately. To the question, the removal of lens was not deliberate, he has replied that it was necessitated to proceed with the further steps of surgery and there debirate. He has admitted that ''it is true that in the initial examination, he could not see the lens, due to pus formation. He asked the patient after examination to have X -ray as an alternative to C.T. Scan, as a secondary measure, as the patient pleaded inability to get the C.T. Scan on the ground of cost. It was orally told, it is mentioned in discharge summary Ext. C3 dated 29.4.1998 X -ray was not giving a clearance whether foreign body was in the walls of the eye ball or within it. Immediately after X -ray report, he operated on the patient. Location of foreign body was not definite before operation, professional ethics permits to remove lens to remove foreign body. He has admitted that foreign body is still in the eye of the patient. He has exercised maximum diligence in this case management. He has denied the suggestions that, he has asked the patient to have only X -ray, and not the C.T. Scan, contents of the consent letter was not explained to the wife of the patient, and he has experimented on the patient, and he is personally responsible for the predicament of the patient. In the light of the above evidence, the documents relied on by both sides also requires consideration. Exts. C1 and C2 are the out patient slip of MINTO Hospital of 24.4.1998 and 28.5.1998 of the patient. The nature of disease is shown as corneal FFB (RE). Complaint of fall of PB in RE at 1.00 p.m. on 24.4.1998. Diagram of the right eye is shown, and dot mark is put therein with the words lens FS+ve, and LE as appeared, AC @ depth pupil 3mm RRR i.e., the examination record. In the reverse, no IB, no FBS even on double eye wash given. The advice was chlorocol and G. Homide, P & B done, review tomorrow. As per Ext. C2 OPD Slip dated 28.5.1998, symptoms of the disease shown as VT -(2), RD PL+F, PR Accerate, suggested treatment was HM -ve 6x6. On the reverse, in the sketch, notes are made. As sworn to by C.W. 1, these 2 slips do not indicate any symptoms on the eye such as pain or infection. Ext. C3 is the Discharge Summary with the diagnosis RE penetrating on the injury with Endothalmitis with? retained IOFB. Procedure done is lensectomy + Vitrectomy RE + Intravitreal injection of Vancomycin, IDFB could not be detected intraoperatively within the eye. Injections and Eye drops are given during the hospital stay of 5 days from 25.4.1998 to 29.4.1998. Review followed on 1.5.1998 at 9.00 a.m. Advised C.T. Scan, it is written in the ink by OP 2, and rest are typed. Ext. C4 is the Bill dated 1.5.1998 for Rs. 10,000 giving the item -wise cost, and Exts. C5 and C6 are the payment Receipt of Rs. 100 on 25.4.1998, and Rs. 10,000 on 1.5.1998. Ext. C7 is the C.T. Scan Report dated 3.6.1998 of Medinova Diagnostic Services. Impression recorded is metallic foreign body right eye globe just behind the Sclero -Corneal junction on the nasal aspect. In the finding column, it is mentioned, well defined metallic foreign body of 6x4 mm size is seen in the right eye globe just behind the sclerocorneal junction on the nasal aspect. For an anterior inferior medical relation to the eye glow, and at the level of the eye lens, the lens is absent. No other foreign body is seen.

AS against these documents, OPs relied on Exts. R1 to R3. Ext. R1 is the case sheet from 25.4.1998 with the Consent Form on the reverse. OP 2 is the consultant. Ext. R2 is the discharge summary which is same as that of Ext. C3 with the addition just above the review, C.T. Scan/B.Scan to be done later to Ro CB/coats operated body. Ext. R3 gives the complete picture of the case from 25.4.1998 to 1.5.1998. Clinical history is that there is a injury in the right eye of the patient as a result of working in a metallic drill yesterday at about 1.00 p.m. Sought advice at MINTO where pad and bandage + antibiotic drugs were given, and patient was asked to come today, but patient has since been referred here. Past history: Nos. vision was normal before injury. Refraction is not done because of severe pain OD. Slit lamp examination are noted of the lids Conjunctive cornea, and Keratometry and Tonometry as ODMA + severe chemosis +, Odema and iris pattern loss and the entry site of the foreign body in the picture. Fibrinous reaction in AC, pupilmiotic 4mm hyoppyon mark yellow portion, higher DT. Regarding their lens (dilated/undilated), clear in the right side in the sheet and no view regarding fundus, and retina on the left side and right side one is OK. Regarding the clinical impression, it is mentioned as ® peic of retained IOFB c Endophtamitis. X -ray arbit shows? Radio -opaque IOFB guarded explained. Treatment given is shows normal injections and drugs, and under Ext. R3A on reverse, the wife of the patient has signed on the writing under the heading prognosis guarded at 5.30 p.m. Hypopyon seems to have increase since morning, may opt for vitrectomy, and in the later informed Consent was given by her to perform Vitrectomy, and removal of foreign body in the right eye on her husband. She has been explained about the nature of problem, and that vision may be lost despite the surgery due to pus collection which has already occurred in the eye. I will not hold the Doctors or staff of Narayana Nethralaya Hospital responsible for any loss of vision Right Eye during the course of treatment in surgery. CW 1 has denied the signature of his wife at Ext. R3B, in the documents Ext. R3A dated 8.6.2000. In the continuation sheet, the details are mentioned about the procedure performed and the findings, and the advice given to the patient, and the condition of the right eye of the patient and progress from 25.4.1998 to 1.5.1998. On 25.4.1998, downward LA, Lensectomy + Vitrectomy + removal of exudates + intravitreal injection of Vavconcy and Garanycin given. FOFB not seen within vitreous cavity or retina. Intra OP findings: Optic disc ® very pale with Sclerosed anterioles; more marked in nasal quadiants. Advise: To continue C.V. antibiotics as before, prognosis clearly explained to the patient and his wife, C.T. Scan to r/o ciliary body foreign body. On 26.4.1998, Aduexal reaction (+), media hazy (2+), Disc seen faintly and advised to continue the same. On 27.4.1998, condition status and advised C.T. On 28.4.1998, Vitreous seems clearer, inflammatory debris seen over disc and nasal Retina and advised C.T. On 29.4.1998, may be discharged today ((THELAW)) due instruction Review 1.5.1998. On 1.5.1998, cornea clearer today, odema much less, vitreous hazy, Retinal details as before and advised to get C.T. Scan done to r/o IOFB in the coats of eye ball or C.B.

FROM the above evidence both oral and documentary, it is apparent that even accepting whole case of the OPs, Hospital is a super speciality Hospital with well experienced and knowledged Doctors, and quantum and nature of the work performed by them clearly support their contention that OP 1 Hospital is a super speciality one, to which the eye surgeons refer the patient for special treatment because of the status of the Hospital and man power which has referred services as claimed in the version and the affidavits. But, the evidence available on record shows that when the patient approached OP 1 Hospital to be treated by OP 2, X -ray facility appears to have not available in taking his X -ray, and the patient and his wife were made to go to Shastri Memorial Hospital for that purpose, and the wife was able to get X -ray report on 6 p.m. after the patient went to OP 1 Hospital in the morning at about 9.00 a.m. The stand of the OP 2 in his version and affidavit shows that C.T. Scan examination of the right Eye of the patient is most essential to locate the foreign body in the right eye, and as a second measure, X -ray was suggested due to the financial inability of the patient in getting the C.T. Scan done. From the evidence of R.W. 1, it is apparent that the X -ray was not giving a clear idea whether foreign body was in the walls of the eye ball or within it. The location of the foreign body was not definite before the operation, and foreign body was still in the eye of the patient even after the operation. In such circumstances, according to OP 2, the surgery was not helpful to the patient and still it is decided to be performed and accordingly it was performed. The case of OP 1 and affidavit of Dr. Bhujanga Shetty, and evidence of CW 1 shows that C.T. Scan is not available in the eye hospital. According to CW 1, the C.T. Scan examination is a must for operation of this type. Still, the OP 1 Hospital had no facility of C.T. Scan. In OP 1 super speciality Hospital, the patients are made to run outside the hospital, when they come for special treatment by super specialist, who is suffering. Apart from the difficulty, they face in getting the tests done out side and bring the report, the valuable time between the occurring of the injury to the time of operation is lost. In view of this position, the case against OPs regarding the facilities, and the performing of the operation without success, fully knowing that the X -ray report does not indicate the location of the foreign body in the eye, which is delicate organ, which plays an important role in the life of human being. The evidence of the RW 1 and the version, and affidavits clearly show that he was unable to make clear diagnosis of the case in spite of the OPD slip of MINTO Hospital which has a given picture of the disease, and also the referral letter of Dr. Ravi. There are clear admissions by the OP 2 as RW 1 that ''it is true that in the initial examination he could not see the lens due to pus formation. The evidence of CW 1 in cross -examination shows that when he went to MINTO Hospital on 24.4.1998, he was told that except the presence of foreign object, there is no problem in the Eye, and he was given medicines in the MINTO Hospital. There also he was told to get C.T. Scan done, and there is no problem in the eye. At the time he went to OP 1 Hospital at 9.00 a.m. on 25.4.1998, he had a pain in eye for which first aid was done. Even OP 2 has clearly stated after he examined the eye, iron bit is in the right eye, and suggested X -ray for conducting operation, and immediately OP operated his eye, and as a result of which he has lost his eye sight. The Ext. R3b as referred above is denied by the wife of the patient as per the evidence of CW 1, which is special informed consent apart from the regular consent. The conditions mentioned therein shows that the OP 2 was not sure whether the patient could have been relieved of the foreign body, and the effect of the operation on the right eye without regaining the eye sight. According to RW 1, he has removed the lens to locate the portion of the body which is permissible under the professional ethics. Thereby the eye sight is lost. But, the foreign body remain in the eye. It is also clearly admitted by the RW 1 that even after operation, the foreign body was still in the right eye of the complainant. The C.T. Scan report produced Ext. C 6 as narrated above mentions the location of the iron bit, foreign body, in the right eye of the patient. If the OP 1 Hospital had the facility of C.T. Scan, it would have clearly helped the patient in this case to get rid of the foreign body of the right eye, and regained his right eye in the perfect condition, as pus was removed by OP 2. The allegations made in the complaint, and the evidence of CW 1 does not challenge the procedure followed by the OP 2 in performing the operation. Their major grievance is that the operation was a failure, and loss of eye sight. The response of the OP 2 to the anxious questions of the patient and his wife about the operation, was not normal, and alleged reply that he is not a God to give the vision is a rude behaviour. Under these circumstances, the contention of the OPs that there was no deficiency in service or negligence on their part in treating this patient does not stand to reason, for the discussions made above. Under these circumstances, point No. 1 has to be answered in the affirmative. The objections raised by the OP regarding the maintainability of the complaint is too technical. The strict procedure contemplated, as required by the Civil Court, is not called for in the proceedings under the Consumer Protection Act. The contention of the OPs in the written argument that in spite of removal of the pus, and giving the antibiotic injections, despite thorough search, foreign body could not be found, and exact location of it can only be seen through C.T. Scan, and the contention of the O.Ps. that the R.W. 1 has withstood the details of cross -examination, and nothing has been elicited cannot be accepted, when the actual evidence is seen as discussed in the above paras. The OPs have contended that expert evidence is necessary to prove the negligence on the part of the Doctor as decided by the Supreme Court, and National Commission, and this Commission in the case laws. We have gone through the above case laws in detail, and the facts of the case; each case has to be decided on the evidence and circumstances, expert opinion is necessary only when the OPs evidence is devoid of admissions in favour of the complainant. The case law cited by the OPs are considered, and after going through them, as discussed above, in this case, that question does not arise in view of cross -examination of RW 1 and admissions. They have contended that according to the accepted practice by the responsible on body of medical men as proper, the surgery is performed by OP2. The exact procedure accepted by the responsible body of the medical men is not made clear by OPs, except narrated it. As already discussed above in this case, it does not arise in view of the admission of the OP 2 in the cross -examination as RW 1 as narrated.

IN view of the findings on the Point No. 1, looking to the condition of the patient and suffering underwent, and plight of the wife and daughter of the patient in the course of the treatment of the patient by OPs call for compensation. OP 1 Hospital was not fully equipped with the X -ray Machine and C.T. Scan Machine, which were quite essential in the treatment of the patient. It is strange that the patient and relatives who come in emergency to the OP 1 Hospital are forced to go on searching of the laboratories to get the tests done, and bring the report at the discretion of the laboratories which takes its own time. In view of the suffering of the patient with the pain in the eye, and the loss of right eye vision, he was made to go out of the Hospital for the tests, consuming lot of time, for the treatment of the eye. If OP 1 Hospital was equipped with these instruments, the future course of action of deciding the surgery, and performing of it could have been quicker, and patient would have been benefited in the treatment in curing their problem. Under these circumstances, the contention of the complainants against the OP 1 Hospital has got some force. In view of this situation, complainant deserves some compensation.

LOOKING to the item -wise column of complaint, and affidavit, claim of Rs. 6.00 lakh, with the split of Rs. 5.00 lakh from OP 2 and Rs. 1 lakh from OP 1 Hospital, and documents produced as referred above, and in view of the death of the patient, it is felt that the suitable quantum of compensation depends on the facts and circumstances of the case. In view of the discussion made above, we find that it is just and proper that complainants are to be awarded compensation of Rs. 1.00 lakh from the OPs. Point No. 2 is answered in the affirmative to that extent, regarding the claim made in the complaint. It is contended by the OPs that they are covered by the Insurance. But, the details of the same are not made available. Neither the insurance policy is produced, nor Insurance Company is impleaded as OP in this case. In the absence of it, the claim of the OPs that compensation awarded should be indemnified by the Insurance Company to pay the same to the complainants, cannot be upheld. They are at liberty to pursue Insurance Company by making a claim separately, and get the compensation indemnified, on payment of the same in this case, to the complainants. Under these circumstances, the case of the OPs cannot be upheld, and the complaint deserves to be allowed in part. In view of the above discussions and findings, we pass the following order. ORDER The complaint is allowed in part. OPs 1 and 2 are directed to pay jointly and severally, a compensation of Rs. 1,00,000 (Rupees one lakh only) to the complainant along with cost of Rs. 2,000 (Rupees two thousand only) within a period of 4 weeks from the date of communication of the Order, failing which, they are liable to pay interest @ 6% p.a. from the date of complaint till realisation on Rs. 1.00 lakh. Complaint partly allowed.