V.PAHWA vs SURINDRA MOHAN GHOSE

THE appellant was the opposite party before the State Commission where the complainant had filed a complaint alleging medical negligence on the part of the appellant.

THE brief facts of the case are that the complainant having some problem in his eye approached the appellant Doctor who prescribed certain tests. The complainant got all the tests carried out except for B-Scan. Upon receipt of these results the petitioner carried out an eye surgery and during surgery it was found that this was case of retina detachment which was in a bad shape and in view of which an Intra Ocular Lens (IOL) was not implanted. The condition of the ''operated-upon-eye'' went bad and he lost his eye. The complainant visited again and again and second surgery was carried out on 2.2.1994 but there was no improvement and finally on 16.11.1994 the complainant was told by the Doctor that the eye could not be cured. It is in these circumstances the complainant filed a complaint before the State Commission alleging medical negligence who after hearing the parties held the Doctor to be negligent and directed him to pay Rs. 1 lakh as compensation. Aggrieved by this order, this appeal has been filed before us. We heard the learned Counsels for the parties and perused the material on record. Learned Counsel for the petitioner vehemently argued his case and raised three points for our consideration.

FIRST point raised by him relates to the fact that the complaint was barred by limitation. According to him the surgery was done by him on 10.1.1994 whereas the complaint has been filed in May, 1996, hence it is barred by limitation. We have perused the material on record and found that it is true that surgery was done on 10.1.1994 but it cannot be denied that complainant was still hopeful of getting some improvement in the eye after visiting the Doctor and the Eko Surgery was carried out on 2.2.1994 and he kept visiting the Doctor till on 16.11.1994 when the Doctor told the complainant that the eye cannot be cured. This point has been raised in Para 17 of the complaint, and, in the written version it has not been specifically denied. In view of this fact, the period of limitation starts from the time the patient felt aggrieved and was told that this eye cannot be cured which was on 16.11.1994 and since the matter was filed in May, 1996 we cannot hold the complaint to be time-barred. This plea has no merit and hence dismissed.

SECOND point raised by the complainant relates to non-examination of any ''expert'' witness in this case for which this Commission relied upon its judgment in 2001 (3) CPR 172 (NC), I (2003) CPJ 153 (NC) = (2003) 1 CLD 611 (NCDRC, New Delhi) in the case of Mrs. Rohini Dev v. Dr. H. S. Chudavt and Anr., and Dr. Harkanwaljit Singh Saini v. Gurbax Singh. We have carefully gone through the point made by the learned Counsel, material on record and the judgments referred to by him. In the written version as well as in the affidavits and more specifically in the cross-examination of the appellant Doctor it is clear that report of B-Scan was a pre-requisite for knowing the exact status of the eye before carrying out the surgery. In his cross-examination the appellant was candid enough to admit "I asked him to get his B-Scan done urgently because without the B-Scan report. it was almost impossible to know the status of posterior segment of the eye" In the affidavit also it is clear that this was a pre-requisite. Any amount of explanation that the appellant went on to carry out surgery without this diagnostic report cannot help him because it is only this report which would have given the status of the eye including that of the status of retina detachment which came to the knowledge of the appellant during surgery. It was a cataract operation and in normal circumstance IOL could have implanted but it could not be done because the status of the eye, which a normal Doctor could ascertain by B-Scan, was not obtained by the Doctor and yet went on to carry out the surgery leaving a lost eye with the complainant. This is a clear case of negligence. When the appellant himself admits this important lapse no other expert evidence is required. In the facts and the circumstances of this case, we consider the appellant Doctor to be an expert and he says very clearly that B-Scan should have been done, which was done subsequently but was of no use as damage has already been done. In view of the admitted position as per record there was no requirement of bringing any expert evidence hence we see no merit in this point raised by the learned Counsel for the appellant. The third point is related to the amount of the compensation. It is the case of the appellant that there was no ground before the State Commission to arrive at the amount of compensation which he did. For this he relied upon the order of this Commission, Punjab Tourism Development Corporation, Chandigarh v. Kirit P. Doshi of I (1997) CPJ 52 (NC) = 1997 (1) CPR 77 in which this point has been discussed in which this was held by this Commission "the quantum of compensation can only be adjudged and assessed on the basis of well accepted principles whether the loss was a direct result of the negligence or whether it was otherwise. In the absence of proof the State Commission was not to arbitrarily fix the compensation at Rs. 25,000/-". Present case is clearly held by the State Commission and affirmed by us as a clear case of medical negligence on the part of the appellant resulting in loss of right eye of the petitioner. No yardstick can be led for determining the trauma and the loss of an important organ in this case as eye of the complainant, especially in this modern era of high technology. Furthermore in our view the compensation given is inadequate but since the complaint has not come to us for enhancement we are unable to take any other view. The State Commission cannot be faulted for the reasons given by them for awarding this amount. This appeal has no merits hence dismissed.

ON our orders the appellant had deposited Rs. 1 lakh which may be released now in favour of the respondent/complainant along with the accrued interest.

IN the light of the above discussion we see no merit in this appeal hence dismissed with cost of Rs. 5,000/- to be payable to the respondent/complainant.