KAILASH KUMAR SHARMA vs HARI CHARAN MATHUR

FIRST Appeal No. 117/94 has arisen out of the order of the Rajasthan State Consumer Disputes Redressal Commission dated November 23,1993 in case No. 20/92 by which the Commission dismissed the complaint and directed the complainant (appellant herein) to pay Rs. 1,000/- as costs to the opposite party (respondent before us).

THE complaint before the State Commission was that the complainant approached the OP in February 1991 seeking his advice for operation of cataract in one of his eyes. After mutual discussion, the complainant was operated upon and an intra-ocular lens (IOL) of foreign make was fitted on 7.3.1991. That day evening, the OP came to the room of the complainant and told him that the operation was successful. However, the day after the operation, the complainant noted that he could not see. OP told him that he will get complete vision within 40 days. THE complainant alleged that he checked every week for about 60 days but there was no restoration of vision in the eye. THE complainant became depressed, as another patient by his side in the same hospital who did not get the IOL fitted was able to read the next day. Other doctors whom the complainant consulted told that he cannot have vision unless an eye is donated for him. THE complainant, therefore, filed a complaint before the State Commission claiming Rs. 5,00.000/- as compensation and Rs. 17,000/- towards amount spent by him for the operation. THE OP made the following submissions (i) THE complainant was under his treatment in the hospital since 15.9.1980; (ii) THE record in the hospital about the patient on 18.2.91 showed his left eye could not be improved any further with glasses consequent to which he was advised a cataract operation of that eye; (iii) THE complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and confirmed the choice of the operation on 6.3.91; he signed a consent form whereby he agreed to have an intraocular lens implanted, of his free Will and accepted responsibility for all its benefits and ill- effects; (iv) THE OP had taken all due care in the conduct of the operation and was not negligent in any way; (v) THEre was always a small chance that the human body might reject the implant of a foreign body; (vi) Any allergies that may develop following reactions to such implantation can be countered by drugs which was the course adopted by the OP in the instant case and while the complainant was already responding to such a course. He voluntarily discontinued the treatment after 16.8.91; (vii) He did not come for revaluation thus contributing to the damage to his eye; (viii) THE complainant had been visiting the OP for over eleven years because of the former''s faith in the latter; (ix) THE deficiency, if any, in the quality of the lens cannot be adjudged as the same is implanted in the complainant''s eye. The State Commission after considering the entire record including affidavits of the parties and also the case law on the matter exhaustively, came to the conclusion that the complainant had failed to discharge the burden of negligence of the OP. The Commission held on the basis of material on record that there was no negligence of the OP before, during and after the operation and that, therefore, there was no deficiency in service on the part of the OP. The State Commission dismissed the complaint and directed the complainant to pay Rs. 1,000/- as costs to the OP.

Aggrieved by this order, the complainant has filed this appeal before us. The appellant due to his inability to attend requested the Commission for exemption from personal appearance. In the appeal, the appellant has reiterated his submissions he had made before the State Commission. He has pointed out that on his not getting his vision after the operation he got his eye examined by eye doctor who told him that he lost his full eye vision because the IOL implant was not properly done. He has further pleaded that the State Commission has not appreciated his mental suffering and instead imposed on him cost of Rs. 1,000/-. The respondent has pointed out that the appellant''s allegation about improper implantation of IOL based on the opinion of another doctor was a new allegation and that there was no evidence to substantiate the same. We have carefully gone through the records and heard the Counsel for the Respondent-OP. While the appellant has a real grievance about the loss of vision, he has not produced any document or other evidence to establish negligence or deficiency of service on the part of the respondent. As observed by the State Commission the complainant''s quantification of compensation for the alleged negligence has no basis. At the same time, the complaint cannot be dispensed with as frivolous. In the facts and circumstances of the case, while we concur with the order of the State Commission to dismiss the complaint, we are inclined to set aside that part of the order of the State Commission relating to the direction to the appellant herein to pay costs of Rs. 1,000/- to the respondent-OP. The appeal is disposed of as above. No costs. Appeal disposed of. ________________