Ram Babu vs ANJANI KISHORE PRASAD

THE present complaint has been filed by one Ram Babu against Dr. Anjani Kishore Prasad for spoiling his eye. He has prayed for a Government service or Rs. 6,00,000/- as compensation in relief. He has enclosed with the complaint petition the prescription of the doctor, the opposite party in support of his case.

THE opposite party filed preliminary show cause stating that the complaint petition may not be maintainable as the same is not supported by any affidavit. THE particulars of the complaint have not been specified and vague complaint is not maintainable. THE amount of damages prayed is also excessive to create jurisdiction of a superior Court not justified in fact of circumstance of the case. He further stated that the complainant had come to the opposite party with serious condition of aphakis retinal detachment in the right eye which was operated upon by him with due care. THE post operation result was encouraging with signs of ''good ridge'' as noted in the prescription on 29.3.1994. No further follow up consultation by the complainant is noted in the prescription. THE complainant has stated against Item No. 6 of the complaint petition that cash memo receipts were enclosed with the complaint petition whereas they were not enclosed and in the circumstances the complaint petition is fit to be dismissed. The complainant on affidavit on 19.5.1997 submitted that his right eye was operated by Dr. Anjani Kishore Prasad. He was not able to see anything when the bandage over the eye was removed after three days of operation. He explored that he may be referred to some good doctor who could save his eye. The opposite party consoled him to relax saying that the eye sight would be restored. He was asked to consult the opposite party on 1.4.1994. The opposite party on 1.4.1994 prescribed some eye drops to be used thrice a day and assured him that eye sight would be restored. The complainant once again consulted the opposite party on 7.4.1994 complaining that there was no improvement in the eye-sight. The opposite party then referred him to Dr. Ahuja at Aligrah according to the complainant. He rushed to Aligarh and consulted Dr. Ahuja who according to the complainant advised him to go back to his home as his eye sight had already been damaged by Dr. Anjani Kishore Prasad and nothing now could be done.

The opposite party there upon filed supplementary show cause on 27.3.1998 reiterating that: (a) No allegation has been specifically brought about by the complainant about any negligence or lapses or deficiency in service on the part of the opposite party either in the complaint petition or in his affidavit. (b) The complainant could file affidavit on 19.5.1997 after a lapse of two years and two months from the date of filing of complaint petition to negate the points raised by the opposite party in his preliminary show cause filed on 30.9.1996. (c) The opposite party as per prescription, had not examined the complainant after 29.3.1994. The statement thus made by him in paras 3 and 4 of the affidavit does not hold good. (d) The opposite party is a highly qualified eye-surgeon with prestigious degrees from reputed institutions from abroad backed by extensive experience. The opposite party claimed to have done his best to re-attach the retina. (e) The complainant has prayed for Government job or rupees six lakhs as compensation without proving any deficiency on the part of the opposite party. (f) The complaint has been filed after a lapse of eight months without any satisfactory explanation for delay. (g) The allegation of the complainant to have resorted to operation without use of anaesthesia is baseless. As a standard practice in eye operation, local and regional anaesthesia was used in operation of R.D. in case of the complainant. (h) The opposite party might not have charged any consideration money from the complainant and might have performed the operation on compassionate ground. The complainant has made no averment in this regard. He has also not submitted vouchers of medicines or materials purchased for operation. The opposite party is not competent to provide Government job to the complainant. The complainant has not succeeded in establishing any deficiency on the part of the opposite party and still sought for compensation of Rs. 6 lakhs which is vexatious. The opposite party therefore prayed that the complaint petition may be dismissed.

THE complainant filed prescription dated 8.4.1994 of Dr. Ahuja, Eye Centre, Aligrah and one prescription of Dr. G.K. Nagpal, Aligrah dated 30.4.1994. It is found from record that the complainant, as alleged by the opposite party had not filed any paper except the complaint petition in the prescribed form very scantily filled up alongwith the doctor''s prescription and an affidavit dated 19.5.1997 in support of his claim. Far from supporting his claim of compensation of Rs. 6,00,000/- he had not even filed vouchers of medicines and any other materials purchased by him in connection with his treatment. He had not mentioned anywhere if he paid any consideration money to the opposite party. He only stated that his eye had been spoiled. With such cryptic and sketchy complaint it had been extremely difficult for the Commission to properly adjudicate in the case. Adjudication had been rendered further more difficult because of not very helpful role of the opposite party in the sense that he too had not explained as to what were the shortcomings on the part of the complainant leading to the damage of his right eye. The opposite party had in para-4(x) of his supplementary affidavit, stated that the complainant had not indicated in his complaint petition if any fee was paid to the doctor for performing the operation. He therefore concluded that the operation of the complainant might have been done free of charge on compassionate ground. He on the basis of the prescription refuted the assertion of the complainant in his affidavit that he had consulted the opposite party on 1.4.1994 and also on 7.4.1994 when he referred him to Dr. Ahuja in Aligarh.

THE failings on the part of the complainant may be viewed in the back ground of the fact that he is totally blind, he is illiterate and has affixed his thumb impression on the complaint petition, that he resides under Chitkohra over bridge and his world is limited to only his wife and about a 10 year old son who used to accompany him to the Commission on dates of hearing of the case. THE Commission, therefore, in the fitness of things, approached the problem from human considerations also rather than purely legalistic angle. Accordingly the Commission gave opportunity to both the parties to settle the matter outside the Court. Social and welfare oriented Consumer Protection Act, 1986 has been brought about with the objective of providing better protection to consumers. Adjudication in the light of the objective could have been done without any difficulty had necessary papers been brought on record. The Commission noted it with dismay that State Commission although has been functioning at Patna since over a decade and large number of talented lawyers and dedicated consumer activists have been attending the Commission, yet they have not been able to create any legal aid organisation so far which could come in aid of such helpless consumers to guide them to file necessary papers for proper adjudication. The blind complainant aided by his 8-10 years son kept on only attending the Commission without taking any step to furnish necessary papers. Compromise however could not be possible between the parties. In such circumstances the only document relied upon by both the parties is the doctor''s prescription. It is seen from the prescription that the complainant was referred by Dr. R.P. Gupta to Dr. Anjani Kishore Prasad, the opposite party who examined him on 15.3.1994 and noted on his pad that cataract operation was done in his right eye on 23.2.1994 (presumably by Dr. R.P. Gupta) and he noted R.D. with a diagram indicating arrow tear in superior quadrant on temporal side. He advised the complainant for admission/ urgent operation. He also advised the complainant to purchase silicon tyre, silicon pad 25 mm. and ethicon suture-5-0 and asked Arogya Mandir, Nala Road to admit him on 19.3.1994 at 7 a.m. for R.D. Surgery. Tobacin eye drop was prescribed. On 20.3.1994 the opposite party had drawn the diagram of retina of right eye indicating the explant noting 7 mm. tyre on superior quadrant under L.R. 10 mm. from limbus, tied 2 mm. silicon band passed through recti with stay suture tied on infero temporal quadrant. No drainage of subretinal fluid was restored to and cryotherapy was used. He prescribed Geramycin 80 mg. - 8 hourly and pentagon tab 1 x 3 (ten tablets) and Pinodine eye drop and chlorocolD eye drop. The complainant of his own consulted the doctor on 29.3.1994 when vitreous heamorrhage was noticed. He was advised by the opposite party for betnasol forte-1 x 3 (20 tab). There was no further instruction on the prescription. The complainant, as per his statement on affidavit, averred that he once again consulted the opposite party on 7.4.1994 who referred him to Dr. Ahuja in Aligarh. He rushed to Aligrah and consulted Dr. Ahuja on 8.4.1994 itself who examined him stating that he had aphakia with old retinal detachment in left eye (This eye was not treated by the opposite party) and aphakia with total retinal detachment which was repaired at Patna. P.R. was not accurate. He noted his advice as PPV with FAE (Pars Plana Vitrectomy with Fluid Air exchange) under conditional grounds. He was referred to Dr. Zafar Zaidi J. N.M.C. He once again consulted Dr. Ahuja the same day when he gave his opinion that it was a hopeless case. He then consulted Dr. G.K. Nagpal, Aligrah. He also expressed similar view in visual prognosis saying that chance of improvement was poor.

IT is thus seen that the eye surgeon in Aligrah were of the opinion that it was a hopeless case on 8.4.1994. The opposite party had examined the complainant on 29.3.1994 as apparent from the prescription who had found ''good ridge'' - a good sing according to opposite party. He has however, not indicated if the tear was well supported by tyre or not. There is no mention about the retina whether it was getting reattached or not. IT is not explicable as to what happened then within a period of nine days only that the case turned out to be hopeless one on 8.4.1994. Neither side could produce a clear and credible explanation for the damage.

THE maxim of ''Res Ipsa Loquitur'' may ideally be attracted in such case which literally means that ''the thing speaks for itself. THE complainant had stated in his complaint petition that his eye had been damaged which is highly suggestive of negligence on the part of the treating surgeon. THE allegation that his eye sight stood damaged is corroborated by Dr. Ahuja, Aligrah on 8.4.1994 and Dr. G.K. Nagpal on 30.4.1994 which places on the opposite party the onus of disproving the presumption of negligence on his part. The opposite party has however not explained as to how the complainant''s eye sight was damaged beyond repair except stating that he did his best to cure the complainant''s retinal detachment in the right eye and there was no deficiency or negligence on his part. He has not even attempted to clarify if he gave some instructions to the complainant and they were not adhered to carefully leading to damage of the eye sight. In fact by observing good ridge he remained under the illusion of it being a good sign towards reattachment of retina as averred by the opposite party which in fact was nothing beyond sign of a good buckle indentation. It can very well be appreciated that inspite of best efforts by a treating surgeon it may so happen that things may sometimes go amiss in surgical operations. In this case also some such unfortunate intreoperative problems might have cropped up which might have been out of control of the opposite party. It would have been better therefore for the opposite party to have apprised the complainant of the pros and cons of such operation before actual operation. This does not appear to have been done by the opposite party which however is not taken as a serious lapse on the part of the opposite party. But the bandage was removed after three days when the complainant complained about the loss of eye- sight. The opposite party should have examined him carefully and recorded his findings. This was omitted to have been done by the opposite party after removal of bandage on 23.3.1994. It cannot be disputed that a patient with R.D. Surgery cannot have the same visual acquity as incase of cataract operation after removal of bandage which however normally should not have been worse than its pre-operative level. It was therefore desirable on his part to have recorded the status of P.R. Mention of whether SRF was decreasing or not was necessary especially when the drainage of SRF had not been done. Whether vitreous haemorrhage was observed on 23.3.1994 should have been indicated. The opposite party however examined the complainant on 29.3.1994 and recorded his findings very miserly. He observed good ridge which might perhaps be a good sign towards reattachment of retina. We would take it to be the truthful finding of the opposite party and we would fully rely on it. But it is strange to find from the prescription of Dr. Ahuja at Aligrah only after nine days that the case was a hopeless one, also almost confirmed by Dr. Nagpal at Aligrah. The complainant, on affidavit, had averred that Dr. Ahuja stated that the complainant''s eye sight had been damaged by Dr. Anjani Kishore Prasad. This was reiterated by the complainant during the final hearing of the case when the Commission had expressed disinclination to believe the allegation on its face value. However, it was incumbent upon the opposite party to have explained as to why such deterioration took place within nine days only when total blindness became part of life of the complainant. No credible explanation for such development was offered. We however find from the prescription that the opposite party had vitreous haemorrhage on 29.3.1994. This should have invited the serious attention of the doctor to have treated it effectively keeping him under observation. The complainant was not even asked to consult him later.

In retrospect we find that the opposite party had mentioned R.D. in R.E. in the prescription. Severity of R.D. was not indicated at all. He observed only one tear which presumably may be indicative of simple R.D. But the opposite party must have examined the complainant''s eye through indirect opthalmoscope. He should have recorded the findings which might have been useful for him in giving prognosis to the complainant. He was advised for urgent operation. We may not question the decision of the expert as fact of circumstances might have so demanded. But there was still sufficient time between 15.3.1994 and 20.3.1994 when the complainant should have been advised for ordinary clinical test like check up of blood pressure and blood sugar. This also was unfortunately not done. Proper medical evaluation was important before taking up such a major operation where chance of success inspite of spectacular advancement in investigation and treatment of R.D. is about 90%. It is thus clear that due importance was not given to pre-operative evaluation. We may not comment anything on the operation process adopted by the opposite party. We may on the other hand endorse the action of the opposite party on the basis of materials brought on record of sealing the single tear, of not resorting to draining of SRF and resorting to cryotherapy in keeping with standard practice in such cases. We may not hold him responsible for conducting R.D. Surgery for three hours under local anaesthesia, as alleged by the complainant, since this also has been the accepted practice. Although there may be other class of doctor as in Wills Eye Hospital (Retinal Detachment Diagnosis Treatment) who prefer general anaesthesia to local one in case of R.D. Surgery which may stretch for more than two hours because of its advantages. The opposite party may not be held responsible for any lapse because he opted for one of the accepted alternatives.

BUT nothing unfortunately appears to have been done in the name of Post-Operative Management. The complainant complained of loss of eye sight after removal of bandage after three days. The opposite party should have carefully examined the eye and recorded his truthful finding and accordingly should have advised him for treatment as discussed earlier. BUT the opposite party failed to do this. Books on Retinal Detachment unambiguously prescribed that patients who have retinal detachment surgery must be carefully watched for glaucoma. The post operative intraocular pressure should have been measured. This does not appear to have been done. Vitreous heamorrhage was observed on 29.3.1994 which should have caused some anxiety to the opposite party. He should have advised the complainant for proper treatment may be that the sign of vitreous haemorrhage might not have been of any consequence according to the wisdom of the opposite party, he should have still watched the complainant at short intervals which was not done. Vitreous haemorrhage in an eye with R.D. increases chance of Proliferative Vitreo Retinopathy (PVR) for which no instructions appear to have been given to the complainant. In fact no instruction for post operation follow-up was at all given in case of major operation like R.D. Surgery which is a serious lapse and negligence on the part of the treating Surgeon. Had this been done and with the vast experience that the opposite party has to his credit, hopefully the situation should not have been as bad as loss of total eyesight. At least the Commission would have felt relieved and satisfied that the doctor did his best. No possible explanation was given for this either in show cause or during pleading. The result today is blindness as fact of life of the complainant who has turned out to be a burden on his helpless wife and 10 year old son who might run the risk of being a victim of child labour exploitation. This situation has been brought about because of obvious negligence of opposite party. 15 In order to appreciate the significance of various terminologies used in the prescriptions of the doctors a number of books in the British Library, Patna and Regional Institute of Opthalmalogy wave referred to. The following books were found of immense help in understanding the problem: 1. "Retinal Detachment" by Renold G. Michels et all. 2. "Retinal Detachment" Diagnosis and Management by William Edmunds Benson. 3. "Retina" by Stephen A. Ryn. 16. The opposite party however has raised objection in his supplementary affidavit that the complainant had not stated anywhere either in the complaint petition or in the affidavit that he paid any consideration money to the opposite party. In absence of such averment, the opposite party concluded that he conducted the operation on compassionate ground without any consideration money. This was the basic point to have ousted the complainant from being a consumer. BUT strangely enough this was not raised by the opposite party in the first show cause. It therefore led us to some apprehension. It is a fact that the complainant has not mentioned anywhere if he paid any consideration money to the opposite party. The only paper on record, the prescription of the doctor, was once again looked into minutely when "paid 250" was found mentioned on the other side on the photo copy of the prescription on top right corner. A copy of this is available with the opposite party. It is thus seen that complainant had acquired the status of a consumer vis-a-vis the opposite party as per provision in 2(1)(d)(ii) of the Act. The opposite party further raised the objection that the complaint was filed after lapse of eight months from the date of operation without giving any satisfactory explanation. The complainant is not obliged to furnish any explanation in case if complaint is filed within two years of cause of act in as per Section 24A of Consumer Protection Act, 1986. 17. Further it is seen that the complainant has prayed for a Government service in relief when Government is not a party in this case. The opposite party is fully justified in his stand. Had Government been a necessary party in this case, this could be a matter for consideration in keeping with the decision of National Commission in Creported in I (1992) CPJ 113 (NC) wherein order was given on human consideration for a Government job even though the complainant had not paid any consideration money. Alternatively the complainant has prayed for compensation of rupees six lakhs. BUT he has not furnished any paper in support of his claim. The opposite party in his preliminary show cause had stated that the amount of compensation of Rs. six lakhs claimed is excessive. It would have been of a great assistance to the Commission in case if he too would have come out with some figure. The State Commission, Patna in a similar case of loss of eye sight in case of K.N. Lal v. Dr. R.K. Akhaury reported in III (1997) CPJ 112=(1997) 5 CTJ (SCDRC) had awarded a compensation of Rs. 5.55 lakhs for loss of eye sight. BUT the claim there was adequately buttressed by documentary evidence. BUT the Commission here is severely handicaped in absence of any paper filed by the complainant in support of his claim. This incidentally should draw the attention of the apex body of State Consumer Council and Consumer-activists of abject lack of consumer education in the entire State including the State Capital of Patna. Keeping however, the spirit of the Act in view and also the decision of National Commission in Ashok Kumar v. M/s. Gujarat Cycles Ltd. and Another, II (1992) CPJ 454 (NC)=Revision Petition No. 220/1991 decided on 21st July, 1992 wherein it has been held that Consumer Disputes Redressal Agencies will be well within legal jurisdiction to quantify the amount of compensation on rational basis even if documentary evidence of details of compensation has not been furnished by a consumer. The complainant has not indicated anything about his profession whether he was a skilled worker or an ordinary unskilled labour. It may be just and fair in this case to assume that the complainant as an unskilled labour would save Rs. 25/- per day for his family which works out to more than Rs. 9,000/- per annum. We therefore, allow the complainant a sum of Rs. 1,80,000/- on account of loss of wages on the basis of saving of Rs. 9,000/- per annum as discussed above considering only twenty years of active live for him although he looked fairly young. The opposite party had recorded his age as 40 years in the prescription. Further, he had been to Aligrah on 8.4.1994 and had consulted Dr. Ahuja there. He had also consulted Dr. G.K. Nagpal, Aligrah on 30.4.1994. He must have incurred some expenditure on account of travel, lodging, consultation fee and purchase of medicines. A modest amount of Rs. 10,000/- on the above account may meet the ends of justice. 18. In view of the above discussion a sum of Rs. 1,90,000/- is allowed to the complainant in total as compensation. The aforesaid amount shall be paid by the opposite party to the complainant within two months from the date of receipt of this order failing which the opposite party shall be liable to pay interest at the rate of 10% from the due date till realisation of the amount. 19. The complaint is partially allowed to the extent indicated above. 20. There is no order as to cost as the complainant has not asked for it. Complaint partly allowed.