National consumer disputes redressal commission

O R D E R

          Both these revision petitions have been filed against the common order dated 08.02.2008 by which the Gujarat State Consumer Disputes Redressal Commission (for short ‘the State Commission’) dismissed Appeal No. 837 / 2006 filed by the petitioner for enhancement in the amount of award passed by the District Forum and accepted the Appeal No. 367 / 2002 filed by the respondent no. 1 for setting aside the order of the District Forum passed on 11.02.2002. They are being disposed off by this common order. 

2.      Both the revision petitions have been filed by the original complainant and the respondents in both these revision petitions were opposite parties 1 & 2 respectively before the District Forum.  For the sake of convenience, the parties hereto have been referred to as the complainant and the opposite parties. 

3.      Briefly stated, the complainant, who is a resident of Bhavnagar earns her livelihood by engaging herself in miscellaneous labour work.  As she had to undergo a cataract operation of left eye, she was admitted in the OP No. 2 hospital in which OP No. 1 is an eye surgeon.  It is not in dispute that she paid the fee for her admission and charges demanded by the hospital.  It is alleged by the complainant that there was negligence on the part of the OP Doctor while administering the anaesthesia injection into her eye which caused damage to it and even though she was rushed to Civil Hospital, Ahemdabad by taxi,  theDoctor there informed her that due to serious mistake of the OP Doctor, the damage to the eye of the complainant could not be restored.  Alleging carelessness on the part of the OP Doctor while carrying out the operation, the complainant knocked the doors of Consumer Fora by lodging a complaint with the District Forum, Bhavnagar.  On notice, the Opposite Parties resisted the complaint.  On appraisal of the issues and the evidence placed before it and after hearing the parties, the District Forum vide its order dated 11.02.2002 accepted the complaint and awarded an amount of Rs.25,000/- by way of compensation with interest @12% p.a. from the date of complaint till its actual payment.  Aggrieved by this order, the opposite parties challenged the same before the State Commission by filing appeal for its dismissal.  The complainant also filed another appeal praying for enhancement in the amount of the award.  The State Commission by its impugned order, as stated above, accepted the appeal of the opposite parties and set aside the order of the District Forum.  Accordingly, the appeal of the complainant for enhancement was also dismissed by the impugned order.

4.      We have heard Ms. Surekha Raman, Advocate who was appointed as Amicus to assist this Commission on behalf of the petitioner / complainant and Mr.Sumit Bhatia, Advocate for the respondent no. 1 and Mr. Nikhil Goel, Advocate for respondent no. 2. We have also perused the record placed before us. 

5.      It was contended by learned Amicus that the facts of this case which are not in dispute would indicate that sufficient care was not taken by the OP Doctor in carrying out the surgery in question particularly while administering the anaesthesia injection.  She submitted that looking at the status and background of the complainant who was a petty labourer and a poor villager, it should have been kept in view by the OP Doctor that adequate care was taken to avoid any likely mishap since it was a delicate matter when the anaesthesia injection was to be administered into the eye of the complainant.  Admittedly, not only once but in the second attempt also there was shaking of the head and / or hand of the complainant when the injection was being administered into the eye by the OP Doctor.  She submitted that as a professional engaged in the surgery of the eyes, he should make sure that the hands and the head were held by the attending staff present in the operation theatre, particularly when the second attempt was made by OP Doctor for administering injection.  In the circumstances, the negligence was writ large and no further expert opinion is required in the matter to prove the negligence on the part of the Opposite Parties.  She further submitted that looking to the overall facts and circumstances of this case, the District Forum had rightly awarded compensation of Rs.25,000/- with interest in favour of the complainant and the same should, at least, have been upheld by the State Commission rather than dismissing the complaint altogether.  She, therefore, submitted that there is a fair case for upholding the order of the District Forum by setting aside the impugned order.

6.      On the other hand, counsel for the OP Doctor has submitted that the damage to the eye was caused on account of the mistake on the part of the complainant when she did not follow the instructions given by the Doctor and moved her head and hand which resulted in the damage to her eye.  He submitted that at worst, it could be regarded as a case of contributory negligence for which OP Doctor could not be held liable for compensation while discharging his professional functions to the best of his capabilities.  He, therefore, submitted that there is no force in the revision petition and the same is liable to be dismissed.  Learned counsel for the respondent no. 2 did not have anything further to add in the matter.

7.      We have considered the rival contentions.  Perusal of the O.T. notes and the written statement filed by the OP before the District Forum confirm that there was movement of head and hand both the times during the administration of anaesthesia injection by the OP Doctor.  The District Forum in its order has observed that the incident of disturbance during administration of anaesthesia injection took place thrice in this case which indicates that the Doctor has not taken care in respect of what could happen in such a situation because of general human nature / behaviour and the incident which took place was uncalled for and improper.  In the given facts and circumstances of this case, we agree with the view taken by the District Forum.  The State Commission apparently erred while treating it as “an unfortunate accident” for which it did not hold the OP Doctor as being negligent or deficient in service while dismissing the complaint.  We are of the considered view that the finding returned by the District Forum was fair and just and hence confirm the same except to the extent that the interest @12% p.a. is on the higher side and hence in the given circumstances we reduce the same to 6% p.a. from the date of the complaint, i.e., 2.08.1997 till its actual payment.

8.      Revision Petitions are thus, partially accepted and disposed off in above terms.  There shall be no order as to costs.

 

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(K.S. CHAUDHARI J.)

PRESIDING MEMBER

 

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MEMBER

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

(From the order dated 18.04.2012 in Appeal No. 477 of 2010

of Rajasthan State Consumer Disputes Redressal Commission, Circuit Bench no. 3 Jaipur)

Ankur Surana Son of Shri Mahendra Surana R/o Prop. Shri Surana Electronics

Petitioner

 
Versus

United India Insurance Co., Ltd. United House, 24 Whites Road Chennai 600 014

United India Insurance Co. Ltd. Regional Office Sahara Chambers Tonk Road

United India Insurance Co. Ltd Divisional Office Holagal Road, Ajmer

... Respondents 
BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI     PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA                  MEMBER

For the Petitioner                 Mr Harsh Vardhan Surana, Advocate