K.K. Srivastava, President:
1. The complainant Mr. Yoginder Beri, a resident of House No. 5155/3, Modern Housing Complex, Manimajra, Chandigarh approached opposite party No. 2 Dr. Rohit Grover of Grover Eye and ENT Hospital, Kothi No. 140, Sector 35-A, Chandigarh (opposite party No. 1) for treatment of problem in his eyes. The opposite party No. 2 Dr. Rohit Grover after thoroughly checking the eyes of the complainant Mr. Yoginder Beri apprised him that he was having a Cataract in both his eyes and advised him for operation on urgent basis. The operation was to be done for PHACO EMULSIFICATION i.e., by implanting Intra Ocular Lens (for short to be referred as I.O.L.). The complainant had consulted Dr. Rohit Grover on 2nd May, 1997 for finalising the date of operation which was fixed for 27.5.1997 at 6.30 a.m. It has been alleged in the complaint that opposite party No. 2 Dr. Rohit Grover had assured the complainant that PHACO type of mode of Cataract operation was the latest of all the available modes and that his vision will be restored to the extent possible with the aid of spectacles. A sum of Rs. 12,500/- was charged by the opposite party No. 2 Dr. Rohit Grover towards the operation charges which also included the costs of lens. The payment was made by the complainant to Dr. Rohit Grover vide Cheque No. 113597 dated 27.5.1997 drawn at State Bank of India. As scheduled, the operation was conducted on the right eye of the complainant Mr. Yoginder Beri on 27.5.1997 at 6.30 a.m. for removal of Cataract. Dr. Rohit Grover opposite party No. 2 assured the complainant once again after the operation that the operation of the eye concerned was successful. However, the complainant was not feeling comfortable after his right eye opened to light and problem of poor vision persisted. The complainant informed Dr. Rohit Grover opposite party No. 2 about his aforesaid problem. The opposite party No. 2 Dr. Rohit Grover advised rest to the complainant from time to time and continued to assure improvement in his eye with the passage of time.
2. Mr. Yoginder Beri, the complainant was checked by Dr. Rohit Grover of respondent No. 1 - Hospital on 29.5.1997, 9.6.1997 and 27.6.1997. On 9.6.1997, opposite party No. 2 Dr. Rohit Grover advised the complainant to use spectacles with the following number :
| Right eye | Left eye |
| Dist. 4.50/1.00/300 | 1.00 |
| Near 2.50/1.00/30 | +2.50 |
(a) that as per his experience he normally makes the adjustments by atleast one or two powers of lens and he also subscribed to his point by showing the records maintained in a diary. In most of the records as shown by the doctor, the complainant observed that in all the cases respondent No. 2 has reduced the power of the lens by one or two points i.e., if the power as per the scanning machine was 17 he used a lens of 15.
(b) Respondent No. 2 also admitted that the lens of 5 diopter is not normally available but can be procured on orders from suppliers at Delhi or from the manufacturing companies.
Dr. Rohit Grover changed the number of the spectacles but the problem in the eyes still continues. The complainant made further queries from the opposite party No. 2 Dr. Rohit Grover whether any re-operation is possible to rectify the disorder by change of lens implanted by him but Dr. Rohit Grover showed his ignorance and recommended the names of doctors for consultation who according to him were authorities in said kind of surgery in India :
| 1. | Dr. (Prof.) V.K. Dada. | Head of Deptt., AIIMS, H.P. Hospital, New Delhi |
| 2. | Dr. Kumar and Dr. Keiky Mehta. | Colaba Hospital, Bombay. |
3. It has been contended by the complainant that due to poor vision, he had to seek his premature retirement from the job with the State Bank of India otherwise in the normal course, the complainant was to retire on attaining the superannuation age of 60 years on 30.4.2001 as his date of birth was recorded as 15.4.1941. The complainant, however, sought his premature retirement as aforesaid on 2.6.1998. It is the allegation of the complainant that he suffered permanent disability in his vision resulting in physical and mental harassment due to the deficiency in service on the part of the opposite parties. Mr. Yoginder Beri, the complainant, claimed damages to the extent of Rs. 7 lacs with the following break up :
| Sr. No. | Details | Â Amount |
| 1. | Paid to opposite party No. 1 towards the operation | Rs. 12,500.00 |
| 2. | Paid as consultation charges | Rs. 75.00 |
| 3. | Loss of salary of two months | Rs. 37,425.00 |
| 4. | Compensation for permanent disability, physical torture and mental agony to the complainant and his family members | Rs. 6,50,000.00 |
| Total | Rs. 7,00,000.00 |
5. The complainant got a legal notice served on 5.4.1998 on opposite party Nos. 1 and 2 claiming the compensation of Rs. 7,00,000/-. The said legal notice was replied by both the opposite parties vide reply dated 31.5.1998 and denied their liability to pay any amount of compensation. With these allegations, this complaint was filed before this Commission through Counsel Mr. Ashok Gupta, Advocate on 31.3.1999 and amended complaint was filed on 15.10.1999. The amount was claimed against the three opposite parties. The third opposite party being the New India Assurance Company Limited, Sector 17-D, Chandigarh, the insurer of opposite party Nos. 1 and 2.
6. After serving the notices of the complaint case, a joint reply was filed by the opposite party Nos. 1 and 2. Certain preliminary objections were raised in the reply which states briefly as under :
(1) The complainant does not disclose the basis of the opinion formed by the complainant for any deficiency in service. No documentary proof has been filed alongwith the complaint from any specialist showing the treatment given by the opposite parties being not in accordance with the medical science.
(2) There is no basis for claiming compensation for a sum of Rs. 7 lacs. The payment made to the opposite party Nos. 1 and 2 included other charges out of which a sum of Rs. 4,800.00 Paise were the operation charges.
7. It has been alleged that the amount of compensation claimed by the complainant is exorbitant. As a matter of fact the complainant approached Dr. Rohit Grover the answering opposite party No. 2 for removal of Cataract by automated machine called PHACO for short. The complainant was provided intra-ocular lens with phaco emulsification, which is the latest and safest method of Cataract surgery being most popular in America and opposite party No. 2 had been practising on this line since 1994.
8. It was specifically averred in para 3 by the opposite parties that the complainant was told that since his right eye has been weak since birth and even after operation, there will be certain limitation of vision as compared to normal eye. The complainant was using spectacles before operation of the number about â 10.0 in the right eye which he never used as the eye never functioned well with the glasses. This condition of Anisometropic Amblyopia (for short hereafter called lazy eye). It was further contended that the success of the operation was absolute and the complainant was happy after having shown to Professor V.K. Dada of A.I.I.M.S., New Delhi. The complainant had absolutely normal post operative recovery except for the problem of weak right eye as explained above. It was also averred that as a matter of fact the complainant wanted to take leave on medical ground as he wanted to avoid posting out of station and he intended to prolong the medical leave with the help of opposite parties, which was refused and this complaint has been filed only after the said refusal on the part of the opposite party No. 2.
9. In para 4 of the preliminary objections, it was contended that the eye has been traditionally compared to a camera and cinema project or where object of the outside world is focused on the other side of the lens. It is submitted that longer the eye the larger will be the size of the image as is clear with the diagrams drawn and attached with this reply. If the object is focused on the retina of the eye and is viewed with internal lens system of the eye then the longer eye needs minus number of the glasses for focusing the image as is common that the minus numbered glasses make the image seen smaller and plus numbered glasses make the image appear bigger.
10. In the case of the complainant, there were conflicting situations due to inherent inborn condition, which makes it possible to give either near zero spectacles number with greater image size difference of the two eyes as is explained above and to keep the image size similar between the two eyes. It was categorically mentioned in the para aforesaid that the above matters were fully explained to the complainant. The treatment prescribed by the opposite party No. 2 is the correct treatment as per the Specialists opinion Dr. V.K. Dada in his book, the extract of which was attached with the reply. In nutshell, the opposite party Nos. 1 and 2 averred in the last paragraph of Para No. 4 of the preliminary objections as under :
âHence the entire treatment given to the complainant by the respondents was in accordance with the latest Medical Science and the complainant has improved from the stage he was before operation.â
11. On merits, the averments made in the complaint were replied to. The relevant paragraphs to which our attention was drawn are paragraphs 9, 10, 11 and 12 to which reference may be made as under :
12. In Para 9, the averments of the complaint were denied and it was submitted that it is evident from post operative recovery that spectacles number was prescribed within two weeks of surgery. The difference of spectacle number of the two eyes which has been since childhood was reduced to a great extent. The correct power of lens to be implanted is decided after taking into account both the eyes, if the size of both the eyes is similar and in the case of complainant his right eye was bigger than the left eye, hence there was a difference of image.
13. In Para 10, it was averred after denying the averments made in Para 10 of the complaint that the complainant failed to understand the meaning of diabolical images which he kept on asserting. It is submitted that the double image or diplopia can result if lazy eye is again put to work in late stage of life. The deficiency in power of glasses of the left eye, which was not operated, cannot be commented upon. The use of normal zero powered glasses as suggested to the complainant for his right eye is a very valid suggestion and is being adopted by the complainant.
14. It was further averred that the complainant started wearing glasses since he used to have double vision. However, he tried to wear the correct powered spectacle for his right eye during young age. If spectacle power of the right eye is to be matched with the left eye, that can be done at this stage but the persistence of double vision is likely to be there on account of image size disparity of two eyes due to difference in size.
15. In Para 11, the allegations made in the complaint were denied as incorrect and it was submitted that the complainant cannot read even the top line of the chart before the operation and after operation his vision was brought to 6/18 (top 4 lines) in the right eye.
16. In Para 12, it was averred, inter alia, as under :
â...The complainant was explained that spectacles will be needed after surgery with limitation of vision due to inherent condition. The complainant probably has not informed about his right eye being lazy eye since birth and also did not mention that he underwent YAG Lazer Capsulotomy for his right eye at New Delhi on 7th of July, 1997 without the advice of the operative Surgeon, which was not required at all and which is not taken atleast for three months after Cataract surgery. The power difference of the two eyes can be undertaken if the image size disparity factor is overlooked.â
17. The case proceeds ex-parte against the opposite party No. 3 - New India Assurance Company Limited. The parties filed their respective evidence in the shape of their affidavit and were cross-examined by the opposite Counsel. The learned Counsel for the complainant made his submissions before us which were replied to and given submissions were put forth by the learned Counsel for the opposite party Nos. 1 and 2. We were taken through the record of the case in detail which included the reference to the pleadings and to the affidavits and cross-examination of the parties. Both the parties relied on the case law regarding the case being brought under the category of medical negligence and consequently the deficiency in service on the part of opposite party No. 2 and the denial of it by the said party.
18. Before proceeding to consider the case of the complainant regarding deficiency in service on part of opposite party No. 2 and medical negligence on his part as the factor responsible for the persistent trouble in the eye of the complainant Mr. Yoginder Beri, it would be useful to refer to certain salient features of the case, as also to the evidence of the parties. It is undisputed that the complainant Mr. Yoginder Beri had problem in his eyes and he consulted opposite party No. 2 Dr. Rohit Grover of the opposite party No. 1 - Grover Eye and ENT Hospital in May, 1997. It is also not disputed that the opposite party No. 2 Dr. Rohit Grover advised surgery in his right eye by the imparting of intra-ocular lens with phaco emulsification. For the service rendered by the opposite party No. 2 Dr. Rohit Grover for himself and on behalf of opposite party No. 1 the Hospital, the requisite fees was charged from the complainant and the same is not in dispute. It is also not disputed that ultimately the right eye of Mr. Yoginder Beri was operated upon on the date fixed i.e., 27.5.1997 at 6.30 a.m. at hospital (opposite party No. 1) by opposite party No. 2 Dr. Rohit Grover. It is also not in dispute that the complainant himself went to have consultation from Dr. V.K. Dada, Head of Department, All India Institute of Medical Sciences (A.I.I.M.S.), New Delhi and that there he had some treatment of YAG Laser and other tests.
19. The dispute arises about the treatment by means of operation conducted by opposite party No. 2 Dr. Rohit Grover on the right eye resulting to the problem in the eye of complainant regarding his seeing double image and incompatibility of images in two eyes i.e. right side operated eye and the left side eye. The main stand of the opposite party Nos. 1 and 2 is that the right eye of the complainant Mr. Yoginder Beri was bigger than the left eye and the result of it was that he was having bigger image of the object in his right eye than the size of the image perceived through the vision in the left eye. According to the averments made in the reply of the opposite party Nos. 1 and 2, this problem of bigger eye of the complainant on the right side was since the childhood and was thus a problem which he was having since his birth and childhood. It may also be mentioned that at the time of the initial check up of the eyes of the complainant Mr. Yoginder Beri was told by Dr. Rohit Grover about this abnormality and the fact that there was limited visual gain accepted in the right eye. The perusal of Annexure C-1 (2nd page) will go to show that an endorsement was made regarding the right eye by Dr. Rohit Grover, which is as follows :
âLimited visual gain Rt. Eye explained.â
Dr. Rohit Grover filed his affidavit by way of evidence and deposed therein the allegations made in the written reply. The affidavit contains almost the same allegations which are mentioned in the written reply, a reference to which has already been made in the earlier part of our judgment. Dr. Rohit Grover was cross-examined by the complainant. In his cross-examination, he stated, inter alia, as under :
âAfter examining the complainant, I found that he suffered from Cataract in his both eyes. The right eye had more Cataract than the left eye. I advised surgery for the removal of the Cataract in his right eye. The complainant was advised in the alternative two treatments, the one was the surgery for Cataract with stitches and the other without stitches. I told the complainant that Phaco (PHACO) is the best available form of surgery regarding the treatment of Cataract. The difference between the two type of surgeries is that the Phaco surgery has the speedial recovery and is also safe than the other form of surgery for the removal of Cataract. The document numbered C-2 was prepared in my office regarding the treatment of the complainant. The attached document with C-2 has also been prepared by me. The number of eyes which are mentioned in the attached document were prescribed after examination of the complainant by me. I have seen the documents C-3, C-4 and C-5 which are dated 27.6.1997, 24.7.1997 and 27.5.1997 respectively and the same have been prepared by me in relation to the treatment of the complainant.
The complainant had come to me with the complaint that he was not comfortable with the spectacles containing the number given by me and I after examining him changed the number and gave another prescription for the spectacles. The complainant again came to me with the grievance that he was still not comfortable with his eyes and wanted my opinion to consult some other eye surgeon, then I told him that he may consult another eye surgeon and have second opinion. I suggested him the name of Dr. Dada, Head of the Department, All India Institute of Medical Sciences (A.I.I.M.S.)...â
20. The complainant Mr. Yoginder Beri was cross-examined with reference to his affidavit dated 15.7.1999. The relevant cross-examination of the complainant may be referred to as under :
â...It is correct that I used spectacles even prior to this operation. The right eye was provided with only plain glasses and in the left eye, I possessed power glasses. During the process of operation, which was held on 27.5.1997, there might have been minor difficulty, otherwise, it was O.K. It is correct that after one week, I was provided with power glasses. I am unable to contradict that eye-ball of the right eye, in my case, is bigger as compared to the left eye.
I thereafter went to the All India Institute of Medical Sciences [A.I.I.M.S.] and consulted Dr. V.K. Dada. Besides, I also went to Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I. at Chandigarh. The doctors in the aforesaid Institutes verbally told me that the lens fixed by Dr. Grover, respondent No. 2 is wrong and that I should contact him once again. However, none of the doctors in the aforesaid Institutes gave me written opinion in this regard. I have gone through para No. 4 of affidavit of Dr. Grover dated 23.7.1999 [Annexure R/3] and it is correct.
It is correct that after the cataract operation, with the use of glasses, the vision was raised to 6/18. It is incorrect that before the operation, I could read 4th line. On the contrary, prior to operation I could read even first three lines. It is correct that after the operation eye-sight of my right eye improved.
It is correct that at New Delhi, I also had a laser treatment. It was done in AIIMS. I dont know that it was not permissible at least for a period of three months after the cataract operation. I may add that it has no relevance with the merits of the case.â
The complainant Mr. Yoginder Beri in his affidavit reproduced the averments made in Para 10 and averred as point (a) about the adjustment by atleast one or two powers of the lens which is to be implanted in the eye by operation. This has referred to as having been stated by Dr. Rohit Grover to him. It has already been referred to above that the averments made in Para 10 have been made admitted in the reply of opposite party Nos. 1 and 2 and the opposite party No. 2 has in his affidavit also denied the same. In cross-examination of opposite party No. 2 Dr. Rohit Grover, a suggestion was put to him as under :
â...The lens to be replaced is normally taken out on or before the date of operation, before being inserted during the surgery. The type of that looking to the condition of the eye of the complainant, the lens of the strength of 8 or 9 ought to have been used but due to negligence or mistake, the lens of the power of 12 was inserted in his right eye.â
It appears that the word âdenialâ of the suggestion has been omitted to be mentioned. The statement in the cross-examination is to be read in the light of affidavit filed by the deponent i.e., Dr. Rohit Grover and also the stand taken by him in his reply. Viewed from this angle, this cannot be stated to be the admission of Dr. Rohit Grover at any rate and it was not even argued by the learned Counsel for the complainant.
21. A careful perusal of the statement of the complainant made in his cross-examination will go to show that he could not contradict the fact that eye ball of his right eye was bigger as compared to the left eye. He also admitted as a fact that after the cataract operation, with the use of glasses, his vision was raised to 6/18. He also stated that it was correct that after the operation, eyesight of his right eye improved. The complainant Mr. Yoginder Beri, as per his statement made in cross-examination underwent laser treatment at AIIMS, New Delhi. He was not aware of the fact that it was not permissible at least for the period of three months after the cataract operation. Mr. Yoginder Beri, however, went on to state that it had no relevance with his case. It is also noteworthy that the complainant Mr. Yoginder Beri not only consulted Dr. Dada at AIIMS, New Delhi but also had consultation in various hospitals such as Government Hospital, Sector 32, General Hospital, Sector 16 and P.G.I. at Chandigarh. The complainant also admitted as a fact that none of the doctors to whom he consulted after his operation gave any opinion in writing about the operation conducted by Dr. Rohit Grover being deficient or that Dr. Rohit Grover was medically negligent in performing the operation and in the implantation of the intra-ocular lens. Now since the complainant himself could not contradict the fact that his eye ball of the right eye was bigger as compared to the left eye, the statement of Dr. Rohit Grover in regard to the problems faced by a person having such kind of defected size of eye ball becomes quite relevant. It cannot be said that the power of the lens implanted in the right eye of Mr. Yoginder Beri by Dr. Rohit Grover has not been done or proved by any reliable and cogent evidence of any specialist to be wrong and incorrect and thereby causing the problem said to be post-operative to the said eye of the complainant Mr. Yoginder Beri. At this place, it may be useful to refer though at the cost of repetition that the complainant had a definite improvement, even according to his own statement in the vision in his right eye and he was able to read the top four lines of the chart though he claimed in his cross-examination that even prior to operation, he could read top three lines which fact, he has not proved by any medical evidence of any eye specialist.
Alongwith his reply, Dr. Rohit Grover has sketches as Annexure R-1 of [1] Normal eye, [2] Myopia (Long Eye) out of focus image, [3] Long Eye - Myopia with low power IOL Focused image of larger size, [4] Long Eye with I.O.L. and Minus Powered spectacle lens giving focused image of reduced size (similar to normal).
22. In support of his defence, Dr. Grover attached extracts from the book on I.O.L. and Phacoemulsification Secrets (Second Edition) by Dr. V.K. Dada, Professor of Ophthalmology, Dr. Rejendra Prasad Centre for Opthalmic Sciences, All India Institute of Medical Sciences, New Delhi, India published by Jaypee Brothers, Medical Publishers (P) Ltd., B-23/23B, Ansari Road, Daryaganj, P.B. 7193, New Delhi-110 002, New Delhi.
23. Chapter 12 deals with power considerations in IOL and a reference is made to the following question and answers [marked with red ink by opposite party No. 2 Dr. Rohit Grover] :
Q. State some relevant factors concerning intraocular implant power ?
Ans. 1. Patients involved in near work for most of the day may be over corrected in implant to be without glasses for near. Minus spectacles should be given for distance.
2. A preoperative myope should over corrected in implant to be with myopic glasses postoperatively.
3. Fellow eye with good vision with glasses demands a similar spectacle power in the operated eye to prevent intolerable anisometropia.
4. Fellow eye with gross diminution of vision is not considered in power calculation of implant.
5. It is better to implant + 19.00 D standard powered implant if keratometry and axial length measurement facilities are not available because 80% of the implants are powered between + 18.00 to 20.00 D (Authors observation).
6. Chances of having ametropia more than 2.00 D is 5% and more than 5.00 D is less than 1%.
24. Apart from it, extracts of book on âRefraction and Clinical Opticsâ edited by Aran Safir, M.D., Director, Institute of Computer Science, Mount Sinai School of Medicine of the City, University of New York, New York City has been annexed and reference has been made to the underlined portion under the heading âIntraocular Lens/Spectacle Combinationsâ, which is reproduced as under :
âMost patients with intraocular lenses do require additional spectacle correction (27, 28), and the net image magnification is the product of that induced by the intraocular lens and that of the spectacle. Since aniseikonia refers to a difference in the size of the retinal images of the two eyes, it is also necessary to consider what image magnification or minification is induced by the spectacle correction of the phakic eye...â
25. It will be relevant to bear in mind that after getting the right eye operated from opposite party No. 2 Dr. Rohit Grover, the complainant Mr. Yoginder Beri consulted other eye surgeons at different hospitals mentioned above at Chandigarh and also consulted Dr. Dada at A.I.I.M.S., New Delhi and also had laser treatment and other tests which facts were not in the knowledge of Dr. Rohit Grover and the consultations were not made with the consent of the opposite party No. 2. In other words, the complainant himself decided to have second and subsequent opinion and treatment after his operation aforesaid conducted by Dr. Rohit Grover. It is also significant to note that apart from the statement of the complainant Mr. Yoginder Beri, there is no other medical evidence of any eye specialist to show that the diagnosis of the ailment in the eyes of the complainant made by the opposite party No. 2 Dr. Rohit Grover was incorrect and faulty and line of treatment prescribed and given by the opposite party No. 2 was not the correct line of treatment. It cannot thus be held on the basis of the evidence on record that Dr. Rohit Grover on facts, was either negligent in performing the operation and providing treatment to the complainant Mr. Yoginder Beri or was deficient in any way in rendering the services hired by the complainant Mr. Yoginder Beri.
26. Now coming to the case law relied on by the learned Counsel for the respondent reported in III (1997) CPJ 41 (NC)=1997 (2) CPR 126, Kailash Kumar Sharma v. Dr. Hari Charan Mathur, decided by the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission), on 29.5.1997. In this case, the complainant had been operated for cataract and intraocular lens was fitted. The complainant alleged total loss of vision and filed complaint claiming compensation on the ground that loss of vision was because of improper implantation of I.O.L. as per opinion of another doctor. The Honble National Commission held that in absence of any evidence that loss of vision after operation for cataract was due to negligence of doctor, the complainants claim for compensation against the doctor was liable to be dismissed. The complainant Kailash Kumar Sharma in the said case had claimed a compensation of Rs. 5 lacs besides a sum of Rs. 17,000/- has been towards the costs of operation. The opposite party i.e., Dr. Hari Charan Mathur while contesting the complaint case made the following submissions :
â(i)Â The complainant was under his treatment in the hospital since 15.9.1980.
(ii)Â The record in the hospital about the patient on 18.2.1991 showed that his left eye could not improved any further with glasses consequent to which he was advised a cataract operation of that eye.
(iii)Â The complainant was apprised of all surgical options and advantages and risks therein, on which he deliberated for over a fortnight and confirmed the choice of the operation on 6.3.1991; he signed a consent form whereby he agreed to have an intraocular lens implanted, of his free Will and accepted responsibility for all its benefits and ill-effects.
(iv)Â The opposite party has taken all due care in the conduct of the operation and was not negligent in any way.
(v)Â There was always a small chance that the human body might reject the implant of foreign body.
(vi)Â Any allergies that may develop following reactions of such implantation can be countered by drugs which was the course adopted by the opposite party in the instant case and while the complainant was already responding to such a course. He voluntarily discontinued the treatment after 16.8.1991.
(vii)Â He did not come for revaluation thus contributing to the damage to his eye.
(viii) The complainant had been visiting the opposite party for over eleven years because of the formers faith in the latter.
(ix)Â The deficiency, if any, in the quality of the lens cannot be adjudged as the same is implanted in the complainants eye.â
27. It would appear from the judgment that the State Commission came to the conclusion that the complainant had failed to forward the burden of negligence on the opposite party and resultantly, the complaint case was dismissed and costs of Rs. 1,000/- was awarded to the complainant from the opposite party. The Honble National Commission dealt with the submissions of the appellant in Para 4, which in our opinion is quite relevant to be quoted and it reads as under :
â4. Aggrieved by this order, the complainant has filed this appeal before us. The appellant due to his inability to attend requested the Commission for exemption from personal appearance. In the appeal, the appellant has reiterated his submissions he had made before the State Commission. He has pointed out that on his not getting his vision after the operation he got his eye examined by eye doctor who told him that he lost his full eye vision because the IOL implant was not properly done. He has further pleaded that the State Commission has not appreciated his mental suffering and instead imposed on him cost of Rs. 1,000/-. The respondent has pointed out that the appellants allegation about improper implantation of IOL based on the opinion of another doctor was a new allegation and that there was no evidence to substantiate the same. We have carefully gone through the records and heard the Counsel for the respondent-opposite party. While the appellant has a real grievance about the loss of vision, he has not produced any document or other evidence to establish negligence or deficiency of service on the part of the respondent. As observed by the State Commission, the complainants quantification of compensation for the alleged negligence has no basis. At the same time, the complaint cannot be dispensed with as frivolous. In the facts and circumstances of the case, while we concur with the order of the State Commission to dismiss the complaint, we are inclined to set aside that part of the order of the State Commission relating to the direction to the appellant herein to pay costs of Rs. 1,000/- to the respondent-opposite party. The appeal is disposed of as above. No costs.â
28. In our considered view, the case law cited by the learned Counsel for the respondent is quite applicable to the facts of the instant case. Resultantly, the complainant has failed to prove any deficiency in service on the part of opposite party No. 2 Dr. Rohit Grover of opposite party No. 1 - Grover Eye and ENT Hospital and has further failed to show that Dr. Rohit Grover was in any way medically negligent in providing the treatment to the complainant. The complainant, without the advice or approval of Dr. Rohit Grover abandoned the treatment prescribed by Dr. Grover and consulted several other eye specialists at Chandigarh and also at A.I.I.M.S. at New Delhi where he underwent laser treatment and other tests which according to Dr. Rohit Grover should not have undertaken so soon after the operation for the cataract in the right eye. In other words, the complainant himself is responsible to the condition of the eye, in which he is placed after the operation. Since the complaint fails against the opposite party Nos. 1 and 2, the question of any liability on the part of opposite party No. 3 - namely, New India Assurance Company Ltd. does not arise and the complaint deserves to be dismissed against the opposite parties. The opposite party No. 3 is the Insurance Company which has insured the opposite party Nos. 1 and 2.
Consequently, this complaint lacks merit and is dismissed. However, in the circumstances of the case, the costs of the complaint shall be borne by the parties themselves.
Copies of this judgment be supplied to the parties free of charges.