MUKUNDA LAL GANGULY vs ABHIJIT GHOSH

THIS complaint has been filed by one Mukunda Lal Ganguly against 2 (two) Doctors of the Medical College claiming compensation against them for a lodged negligent operation of his eyes. The case of the complainant in brief is as follows:

THE complainant-petitioner had his left eye operated in the year 1955 by one Dr. Balai Mitra of the Medical College and Hospital, Calcutta for curing ratina detachment problem and the operation was a successful one. In the year 1980 the power of vision of the right eye of the complainant became decreased to great extent for which the complainant went to the Eye Department of the Medical College & Hospital where he was treated as an out-door patient under Dr. P.R. Chatterjee (OP No. 2). On the advice of the said Doctor he was admitted in the Hospital as an in-door patient for surgical operation of his eye. It has been alleged mat although OP No. 2 Dr. Abhijit Ghosh was to operate on his eye, the operation was ultimately made by Dr. P.R. Chatterjee. It is further alleged that before the operation the compulsory method of taking blood test and other tests and investigate on reports were not observed by the OP No. 2. THEreafter the complainant was discharged from the Hospital on 9.9.1989 without having any vision of his right eye and he was advised to attend the out-door department. But ultimately it was found that the vision power of his right eye had been totally lost for ever. Thereafter on medical advice he was admitted to the said Hospital on 6.10.1989 for operation of his left eye by OP No. 2 allegedly without taking the blood test report and other reports before performing the operation and he discharged the complainant from the Hospital on 5.11.1989 with the advice to attend the outdoor department from time to time. The complainant was constrained to obtain a medical certificate for the blind issued by Dr. P.R. Chatterjee declaring him blind as visually handicapped on 18.12.1989. After being unsuccessful to restore his sight in any way by the treatment of OPs 1 & 2 he was referred by OP No. 1 to Dr. P.N. Nagpal of Eye Research Centre and National Foundation of Ahmedabad, Gujarat for a further treatment of his right eye. There he was further operated by the said Doctor and he was discharged on 21.1.1992 without any vision power.

The complainant alleges that he was told by several eye specialists that the operation of the eyes of the complainant, particularly his right eye, was not done properly and that there was no way left for getting back his vision power again. The said Doctors, however, did not agree to give any opinion in writing. The complainant alleges that had his eyes were treated properly with due care he would not have met this fate. He accordingly files this complaint claiming for compensation of Rs. 15 lakhs from the OPs.

THE OPs are contesting the case by filing a written argument. THEy have denied the allegations of negligence in the operation of the eyes of the complainant. THEy have simultaneously raised two preliminary objections, namely, that the complaint is barred by limitation and that the complainant is not a consumer under the Consumer Protection Act, 1986. Both parties agree that these two points should be heard as a preliminary point and as such we propose to consider the case on those two preliminary points only at this stage. As regards the point of limitation it is argued by the lawyer representing the OPs that the complainant was operated as far back as in 1989 and that he got a certificate of blindness on 18.12.1989. The complaint was filed on 11.1.1994 i.e., more than two years from the date of his blindness and as such the case is barred by limitation. In this connection it should, however, be noted that the period of limitation was for the first time inserted in the Consumer Protection Act, 1986 by the insertion of new Section of 24A with effect from 18th June, 1993. Before that date there was evidently no question of considering any point of limitation in a Consumer Disputes Redressal Commission.

ON behalf of the complainant on the other hand it is argued that although he got his certificate of blindness as a handicapped person on 18.12.1989, he was still in the faint hope of recovering his vision by a further operation by an expert to whom OP No. 1 referred him. It is, further, submitted that it was only after the operation held by Dr. Nagpal of Ahmedabad, Gujarat, that he finally came to know that he had permanently lost his sight. So according to the complainant the cause of action for filing the complaint arose after that date. The complainant was discharged by Dr. Nagpal on 21.1.1992 and if limitation is counted from that date, the complaint is within the period of limitation. This fact along with the fact that Section 24A was brought into force with effect from the 18th June, 1993 which might reasonably escape the notice of the complainant tends to show that his claim is not barred by limitation. Even if the period of limitation is counted from before that date, we think that there are reasonable grounds to entertain this complaint by condoning the delay as in our opinion the complainant had sufficient cause for not filing the complaint within the period of limitation. As regards the second point of objection namely the complainant is not a consumer within the meaning of the Consumer Protection Act, the point has been ultimately discussed and finally settled by a judgment of the National Consumer Disputes Redressal Commission in. Consumer Unity and Trust Society of Jaipur v. State, of Rajasthan & Others, reported in II (1991) CPJ 56. In the said case the status of the Doctors of a Govt. Hospital in relation to the services rendered by him as a Doctor has been very elaborately analysed. It was very forcefully argued before the National Commission that Government Hospitals are run by public money paid by the tax payers and that the salary of the Doctors being paid out of the said money, the services rendered by such a Doctor should be deemed to be a service for consideration. The Commission, therefore, discussed the nature of the tax and the nature of the services rendered in return to the public and came to the conclusion that the salary of the Government Doctors being paid from the public exchequer does not necessarily make him a service-giver for consideration. The possible difference that might contribute to such services considering a paying bed and a non-paying bed was also discussed in the judgment and after a full discussion the Commission came to the conclusion that the difference between a paying bed and non-paying bed did not matter in the matter of services of a Doctor in connection with the definition of such services under Section 2(1)(o) of the Consumer Protection Act. We are bound by the said decision and in our opinion it is a very correct decision and on the basis of such decision we hold that the services rendered by OPs 1 & 2 in this case are not services for consideration as the definition of the services in the Consumer Protection Act does not include such services. 9.On the above basis we hold that the complainant in this case is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and that the complaint filed by him is not also a complaint under Section 2(1)(c) of the said Act. On the basis of the view we hold in this regard, therefore, this complaint is not maintainable before this Commission. 10. The complaint is accordingly dismissed but without any cost. Complaint dismissed.