SHRI. M.K. ABDULLA SONA : MEMBER
Common Judgment:
Both the appellants are the respondents/opposite parties in the O.P. No. 20/01, the order dated 29.4.2005 in the file of CDRF, Kannur. The first respondent is the complainant in the above O.P.
The appellants prefers this appeal from the impugned order passed by the Forum below directing the opposite parties to pay an amount of Rs, 2 lakhs as compensation and Rs. 25,000/- as Medical expenses together with litigation expenses Rs. 2,000/- within one month from the date of receipt of the order, failing which the complainant is allowed to execute the order under the provisions of Consumer Protection Amendment Act.
The complainant was having a case that he was having cataract in her left eye consulted the first opposite party, doctor who in turn advised surgery. After the operation she was discharged on the same date after that she had reviewed that first opposite party continued meditation but she does not regain her own eye sight. The complainant went to Kasthurba Medical college Hospital and the doctors there opinion that the left eye was damaged by earlier operation. The complainant again approached the first opposite party and she was referred to Madura for corneal transplantation. Hence the complaint filed for compensation to the tune of Rs. 4,25,000/- alleging negligence against the opposite parties.
The opposite parties appeared before the Forum below and filed their written version. It is submitted that the complainant was brought to the hospital on 12.01.99. Her husband had underwent an operation with I.O.L implantation during December, 1998 by the first opposite party and he regained his vision. The opposite parties categorically denied all the allegations raised by the complainant in the complaint, the opposite parties against the medical negligence. They contended that they give very proper and careful treatment to the complainant. If anything happened to the left eye of the complainant, it is not due to the carelessness and negligence of the opposite parties. The opposite parties stated that the complainant told that she needs corneal transplantation in the eye. On examination, there was corneal oedema, late on set, which could be due to poor pre-operative endothelium which may be due to a previous corneal injury resulted in the paracentral corneal scar. At present her eye condition is very bad and a corneal transplantation is the treatment and the patient asked her to consult Aravind Eye Hospital, Madurai. It is incorrect to say that the first opposite party told that she will get the vision immediately after the operation. It is incorrect to say that she was blind on all those days, almost care and caution, was taken by the opposite party. The first opposite party has prescribed anti glaucoma drugs along with the usual post operative medication. The complainant did not turn up for regular review. She was asked to continue steroid drops twice a day. The complainant never contacted the first opposite party when she had deterioration of vision. Instead she had different treatment from different doctors. Utmost care and caution was taken by the first opposite party. There was no attempt to mislead the complainant. Hence the complaint is to be dismissing with costs. The second opposite partys version identical to the contention raised by the first opposite party, so it is not reported reiterated.
The Forum below raised 2 points for consideration:
1)Whether there is any deficiency in service?
2)Whether the complainant is entitled to get compensation? If so the quantum?
The evidence consists of the oral testimony of Pw1 and 2 and documents Ext. A1 to A12 were marked. Ext. B1 was also marked.
The Forum below answered all the questions arised for consideration rightly. As per the Ext. A1 prescription issued by the opposite party to the complainant in operation performed was S.I.C.E(Small Incision Cataract Extraction). But as per Ext. B1, Case Sheet, which was produced by the opposite party, the operation which conducted is also S.I.C.E. This method of S.I.C.E is more complicated than E.C.C.E. Operation. That it is amount to negligence on the part of the opposite party. He has conducted a more complicated operation because the expert opinion is that S.I.C.E. Operation is more complicated than E.C.C.E. The opposite party has not noted eye vision of the complainant on 15.01.99. On 15/6/99, the eye vision was noted as 6/60. That is also not correct vision. In the prescription from 15.01.99, to 28.8.99 nothing is mentioned about the decease FUSCH DYSTROPHY ie. Inherent decease of cornea. The Case sheet , Ext. B1 does not show anything about it. So from the available evidence and expert opinion, it can be seen that the complainant has lost her vision due to careless and negligent operation conducted by the first opposite party. The opposite party did not say any valid reason for causing endothelium damage and tea of descemets membrane which resulted in the corneal decomposition and loss of vision. The opposite parties failed to establish only fact that the complainant had any inherent weakness of Cornea and any paracentral corneal capacity. Even if it is admitted that there was a paracentral corneal capacity, she is not treated for the same. That also amounts to negligence. The Forum below found that there is a negligence, carelessness and deficiency in service on the part of the opposite parties. So this issue is answered in favour of the complainant and the Forum below allowed the complaint and passed above impugned order.
The counsel for the appellant(doctor) and the counsel for the appellant(Hospital) was argued very elaborately and vehemently. On the basis of the grounds of appeal memorandum and submitted that the order passed by the Forum is not accordance with the provisions of the law and evidence. They prayed for set aside the impugned order passed by the Forum below. The main contention of the counsel of the Doctor the person who conducted herself latches from her part to carry out the strict medical advices and instructions of the doctor and he argued that the complainant was advised to Arabind hospital, Madurai for better treatment , but she gone to Kasthurba Medical college Bangalore. He argued that as per the Ext. B1 case sheet which related with the treatment of Leelavathi, the complainant which under the custody of the opposite party, the doctor, concerned who give so much care and provide proper treatment to her. He did not commit any negligence or carelessness from his part during the treatment of the complainant. The counsel for the appellant (hospital) strongly contended that they appointed the qualified and competent doctor in their hospital and he gave maximum satisfactory treatment to the complainant. He submitted that the hospital is entitled not at all due to any negligence or carelessness in the treatment of the complainant, directly or indirectly connected with the treatment of the complainant and the Forum below fixed the liability against the hospital/opposite party. It is illegal and against provisions of law. The Forum below have no jurisdiction to fix the liability against a stranger, who did not involved in the matter. He submitted that the order passed by the Forum below is illegal and irregular. It is not legally sustainable. It is liable to be quashed.
We heard in detail and carefully examined each and every documents and the depositions of the witnesses from the case bundle. We are seeing that the opposite parties filed their version and filed a case sheet before the Forum below. This case sheet was under the custody of the opposite parties for a long period. Even the opposite parties did not file a proof affidavit. They did not site any expert witnesses from their part to prove that they are innocent in this dispute. The expert witness cited by the complainant Pw2 Dr. Vigil C.H. deposed rightly and clearly that the opposite parties, doctors treatment is not proper. During the cross examination of the Pw2, there is no evidence came out favourable to the opposite parties. In the strict sense the opposite parties filed their versions alone before the Forum below. They have no case that the Forum below did not give any pray to them or adduce any oral or documentary evidence. In the circumstances, as per the evidence adduced by the complainant and the opposite parties, it is clearly established that the first opposite party, Doctor committed gross negligence and carelessness in the course of the treatment of the complainant. He conducted deficiency in service. The argument of the counsel for the appellant(Hospital) is a strange and baseless. These appellants did not deny that the treatment was given by the first opposite party in his hospital, he is not having any case that the hospital gave treatment to the complainant on a free of cost. In this case, the first opposite party is liable for the deficiency in service as per the strict settled position of law if the opposite party(doctor) is an employee of the second opposite party who conducted negligence and carelessness in the treatment. The second opposite party is also liable. Here the principle of tortuous liability is applicable. If the servant committed any negligence or carelessness, his master is also liable. It is a basic principle of law of Tort. If the second opposite party is vicariously liable for the negligence committed by his employee, doctor. The counsel for the appellant /hospital filed a petition to implead the Insurance Company as a party in the appeal. As per the averments in this petition they took policy from the Insurance company for the protection of professional negligence. But we surprised that the hospital/opposite party kept this policy under the safe custody and they didnt produce they produce before the Forum below. They did not mention these aspects in their version. In other words they did not take any steps to implead the Insurance Company as a necessary party in the O.P. before the Forum below. How the appellate Forum will be entertained this matter in this stage. It is against the provisions of law and evidence, unless it is an inevitable document to redress the deficiency from the opposite party. The opposite party, doctor and hospital can be to proceed against the insurance company further if they intend to do so, we are not entertaining this petition in this stage. This petition is disposed accordingly.
We are seeing that the Forum below rightly answered all the questions arised for consideration in the dispute. As per the evidence available before the Forum below, Both appellants miserably failed to gave any evidence before the Forum below. As per the principle of âResipsa Loquitar, the burden to prove the innocence from the part of the treated doctors. It is a well established principle through out the world for. The Apex court of the country settled this principle in ever so many decisions, there are two decisions we seen before this Commission.1)M.A. Ganesh Rao Vs. Dr. T.M.A Pie Rotary Hospital and others (CPJ(2006) Volume 2, Page No. 96.
2)Charansingh Vs. CostlaHospital and Others Value 2CPJ 2006.
We are seeing both the decisions from the Karnataka State Commission and Punjab State Commission, the fact of this case is no way related with the fact of the case discussed for the above 2 decisions. The purpose for the citation is to follow the interpretation of statutes and also as guidelines to dispose a case. We are seeing that the two decisions can not be helped to decide this appeal.
We are seeing that the order passed by the Forum below is strictly in accordance with the provisions of law and evidence. The order passed by the Forum below is legally sustainable. We upheld this decision.
In the result, both appeals are dismissed and confirmed the order passed by the Forum below. The points of the appeal discussed one by one and answered accordingly. Both parties are directed to suffer their respective costs.