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Uttarakhand High Court · body

2009 DIGILAW 648 (UTT)

ABDUL GAFFAR v. DINESH SHARMA

2009-12-30

IRSHAD HUSSAIN, KUSUM LATA SHARMA

body2009
ORDER (Per: Justice Irshad Hussain, President) : This is complainant’s appeal against the order dated 11.07.2008 passed by the District Forum, Dehradun, dismissing consumer complaint No. 155 of 2002 filed for award of compensation of Rs. 4,50,000/- and refund of sum of Rs. 5,000/- paid to the opposite party No. 1 with interest towards the medical services rendered by him and which allegedly on account of medical negligence, did not restore vision in the left eye of the complainant. 2. Complainant has averred in his complaint that he was suffering from cataract in both eyes and got operated his right eye by Dr. Daljeet Singh of Amritsar earlier that he consulted opposite party No. 1 – Dr. Dinesh Sharma at his Amritsar Eye Clinic and then guaranteed that his left eye will get vision after operation; that sum of Rs. 5,000/- for the operation and cost of the lens was paid; that on 25.04.1998, operation was conducted and lens was implanted by opposite party No. 1 and that despite taking prescribed medicines, the complainant got no vision in his left eye. Complainant alleged that the opposite party No.1 knew very well that there was no vision in the left eye of the complainant, but still operated the same and fixed lens to make money only and that way, has put the complainant to physical hardship and financial loss, which entitled him to claim compensation and refund of the amount paid. 3. The opposite party No. 1 contested the complaint and denied the allegations of the complainant. It was averred in the written statement that the complainant suffered from age related Macular Degeneration of Retina and partial Optic Atrophy. Thus, whatever vision was hampered by cataract, could only be recovered after operation with the help of lens implanted. In the present case, after cataract surgery, peripheral vision was restored. Thus, the operation was successful in restoring peripheral vision. The operation resulted in restoring peripheral vision and that the lens in the left eye of the complainant was essential to be implanted for the following reasons: (a) The right operated eye of the complainant had already lens implanted at Amritsar by Dr. Daljeet Singh. Hence, in order to prevent double vision and to maintain balance with the right eye, implanation of intraocular lens in the left eye was imperative in the opinion of the opposite party No.1. Daljeet Singh. Hence, in order to prevent double vision and to maintain balance with the right eye, implanation of intraocular lens in the left eye was imperative in the opinion of the opposite party No.1. (b) To help gain peripheral vision, intraocular lens is very essential, as without it, there could be no peripheral vision also. 4. The legal plea of limitation was also taken by the opposite party No.1. 5. The District Forum, on an appreciation of the material on record, by an elaborated and detailed order, rejected the allegations of the complainant, by observing that the complainant has totally failed to prove medical negligence in the performance of the operation of the left eye of the complainant and implanting of lens in it and also by observing that the complaint filed was barred by time. Complainant feeling aggrieved by the dismissal of the complaint filed this appeal. 6. The submissions of the learned counsel for the parties, give rise to the following points for consideration of this appeal: (i) Whether the complaint was not barred by time and the finding to the contrary recorded by the District Forum, is incorrect? (ii) Whether the opposite party No. 1 has given a guarantee and has undertaken that he will positively restore the vision in the left eye of the complainant after the operation and lens implant, as alleged by the complainant? (iii) Whether the opposite party No.1 has not exercised the skill which he possessed in performing the operation and implant of lens in the left eye of the complainant with reasonable competence and, as such, failed to restore vision in the left eye of the complainant and the finding to the contrary recorded by the District Forum, is incorrect? (iv) Whether the complainant was entitled to any relief against the opposite parties? 7. Point No. (i) – Operation of the left eye of the complainant was performed on 25.04.1998 and whereas the complaint was filed on 27.08.2002, after a period of more than four years. Section 24A of the Consumer Protection Act, 1986 provides two years period of limitation to file a complaint from the date of cause of action, which has arisen in this case on 25.04.1998, when the complainant got his left eye operated by opposite party No. 1. Section 24A of the Consumer Protection Act, 1986 provides two years period of limitation to file a complaint from the date of cause of action, which has arisen in this case on 25.04.1998, when the complainant got his left eye operated by opposite party No. 1. Complainant himself specifically pleaded that the complaint was being filed within the period of limitation, as the operation was done on 25.04.1998, but apparently wrongly, in view of the fact that the complaint was filed after more than four years. Sub-section (2) of Section 24A of the Act provides that the delay in filing the complaint may, however, be condoned if sufficient cause for not filing the complaint within the period of limitation, had been shown. In this case, the complainant has not moved any application for condonation of delay in filing the complaint, nor has shown any cause for delay, to be considered at any stage of the proceedings. The provision of Section 24A of the Act by the Hon’ble Apex Court in the matter of State Bank of India Vs. B.S. Agricultural Industries (I); II (2009) CPJ 29 (SC) = II (2009) SLT 793, has been held to be peremptory in nature and requires the Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. This being the legal position, the complaint having not been filed within the period of limitation as provided and the delay having not been condoned, the same was barred by period of limitation and was liable to be dismissed as such, even without entering into the merits of the case. Therefore, the argument of the learned counsel for the complainant that the complaint was not barred by period of limitation and the finding recorded by the District Forum was incorrect, is not sustainable. The point is answered accordingly. 8. Point Nos. Therefore, the argument of the learned counsel for the complainant that the complaint was not barred by period of limitation and the finding recorded by the District Forum was incorrect, is not sustainable. The point is answered accordingly. 8. Point Nos. (ii) and (iii) – The allegation of the complaint regarding giving of any assurance and guaranteed restoration of full vision after operation of the left eye of the complainant, was specifically denied in the written statement by the opposite party No. 1 and it was averred that it is inconceivable to even think of guarantee to be given by the professional and in our view, rightly so, particularly in the case of a medical practitioner surgeon, who does not undertake that he will positively cure a patient, but he definitely undertakes to use a fair, reasonable and competent degree of skill in the given case. The submission of the learned counsel for the complainant in that regard, stand rebutted by the informed consent form for cataract operation and implantation of intraocular lens, duly executed and signed by the complainant and placed on record. The complaint had been made aware all about the nature and expected result of such an operation and only then he gave consent for the same and in pursuance of which, opposite party No. 1 performed the operation and implanted lens according to the prescribed procedure and with full competence, which he possessed. 9. Further, the opposite party No. 1 categorically pleaded in his affidavit that the complainant suffered from age related Macular Degeneration of Retina and partial Optic Atrophy. Thus, whatever vision was hampered by cataract, could only be recovered after operation with the help of lens implanted. In the present case, after cataract surgery, peripheral vision was restored. Thus, the operation was successful in restoring peripheral vision. The operation resulted in restoring peripheral vision and further that the lens in the left eye of the complainant was essential to be implanted for the reasons mentioned-above with reference to the stand taken by the opposite party No.1 against the allegations of the complainant. The stand taken by the opposite party No.1 is in conformity with the relevant medical literature text placed on record in the form of publication of the International Eye Institute and also the renowned publication on intraocular lenses, also referred thereto elaborately by the District Forum in its order. The stand taken by the opposite party No.1 is in conformity with the relevant medical literature text placed on record in the form of publication of the International Eye Institute and also the renowned publication on intraocular lenses, also referred thereto elaborately by the District Forum in its order. In the peculiar circumstances of the case, therefore, there can be no doubt that the opposite party No. 1 has exercised skill which he possessed with reasonable competence and the operation resulted in restoring peripheral vision, although the averment made in the complaint itself indicate that the complainant before the operation, has had no vision in the left eye. It shall also be pertinent to mention that, as has been stressed by the Hon’ble Apex Court in the matter of Jacob Mathew (Dr.) Vs. State of Punjab and another; III (2005) CPJ 9 (SC) = VI (2005) SLT 1, to prove negligence on the part of a doctor, it must be shown that the doctor did something or failed to do something, which in the given facts and circumstances, no medical professional in his ordinary prudence would have done or failed to do so. No evidence whatsoever to meet this legal requirement, what to think of any expert evidence, was produced on record by the complainant and, therefore, there was not an iota of evidence to prove allegation of negligence against the opposite party No. 1. The District Forum recorded a correct finding and the allegations of the complainant have rightly been held to be unwarranted and against the true facts of the case. In other words, the opposite party No. 1 has not made any medical negligence in the performance of his duty while performing the operation for removal of cataract and implant of lens in the left eye of the complainant on 25.04.1998. Both the points are answered accordinlgy. 10. Point No. (iv) – In view of the findings aforesaid, the complainant was not entitled to any relief and his complaint has rightly been dismissed by the District Forum. The point is answered accordingly. 11. For the reasons aforesaid, this appeal fail and is hereby dismissed. Costs made easy.