National consumer disputes redressal commission

O R D E R

        This revision petition has been filed by the petitioner who was the original complainant against the order dated 18^th April 2012 passed by the State Consumer Disputes Redressal Commission, Rajasthan, Circuit Bench no. 3 at Jaipur (in short, ‘the State Commission’), by which the State Commission had allowed the appeal filed by respondents against the order dated 22.02.2010 passed by the District Consumer Disputes Redressal Forum, Ajmer (in short, ‘the District Forum) and set aside the order of the District Forum.

“19.   Consequently complaint of the appellant is allowed against non-applicant insurance company and non-applicant insurance is hereby ordered to make the payment of Rs.6,59,459/- to the applicant with 9% interest per annum from the date of the filing of complaint till the date of payment and litigation cost of Rs.1,500/- within a period of two months from the date of order or to make deposit the amount in forum”.

3.     Aggrieved by the order of the District Forum, the insurance company filed an appeal against the same before the State Commission which allowed it and set aside the order of the District Forum.

4.     We have heard Mr Harsha Vardhan Surana, learned counsel appearing on behalf of the petitioner and perused the record. Learned counsel for the petitioner has submitted that the State Commission committed a mistake in accepting the plea of the insurance company based on the report of the surveyor. He submitted that the District Forum has rightly included the goods kept in the godown when the fire broke out and the total amount of loss because of the presence of goods in the godown at that time was not at all disputed by the respondents. The only contention which was relied upon by the State Commission in the impugned order was that the surveyor had said that the goods under dispute were not insured as they were kept in by friendly transfer and not by proper sale purchase. Another contention raised by the learned counsel was in respect of receipt of part payment towards claim of the petitioner from the insurance company. He submitted that the State Commission has erred in its observation that since the petitioner had received the part payment as full and final settlement and hence, he was not entitled to raise any further claim. He further submitted that the State Commission failed to appreciate that the amount was accepted by the petitioner because of his helplessness of undergoing financial hardship due to loss in the business caused by the fire and his business rotation would have suffered if he had not received the part payment from the insurance company. He, therefore, pleaded that the order of the District Forum which was a well-reasoned order needs to be maintained and the impugned order be set aside.

5.     We have given our thoughtful consideration to the contentions raised by the learned counsel of the petitioner. We find that the State Commission has reversed the order of the District Forum by giving reasons which are in line with the established legal decision and the judgment of the Apex Court. Coming to the first plea regarding the exclusion of goods, the value at Rs.6,59,459/- is based on the report of the surveyor. It is well established by now that the report of the surveyor appointed by the insurance company is an important document and the same should not be rejected by the Fora below unless cogent reasons are recorded for doing so. The State Commission has stated that it did not see any legal ground before the District Forum to reject the report of the surveyor. The report of the surveyor should have been rebutted on behalf of the complainant/ petitioner since the respondents/OPs had filed the surveyor’s report as their evidence. Besides this, the State Commission has also recorded the following circumstances which lead the State Commission to reject the plea of the petitioner:

“The owner of Surana Associates has been stated to be Dinu Surana whereas the owner of Surana Electronics has been stated to be Ankur Suarana. The name of the father of the both is Mahendra Singh Surana. In this way the relation of these both is proved. It has occurred in the report of the surveyor that disputed goods were available in the godown of Surana Electronics and it belongs to Suaran Associates. It was put there only as trust because both are having relations together. Hence, these goods were kept in the godown as trust and goods were not insured. In addition this fact has also occurred that the fire incident occurred on 15.04.2007 and at the same day Surana Associates has stated to sale these goods to Suarana Electronics. It is also a strange co-incidence. As well as these facts have also come on record that goods which have been stated to be of Surana Associates on 15.04.2007, prior to the same Surana Electronics had never purchased the same”.

6.     So far as the other ground taken by the petitioner is concerned, the receipt of amount of Rs.14,76,264/- sent by the insurance company against the claim put up by the petitioner is not disputed by the petitioner. In fact, the petitioner filed certain additional documents which have been placed on record in which it has been included. Copy of the voucher signed by the petitioner indicates that he has received the amount in question by way of full and final discharge of his claim against the insurance company/ respondents. This being the undisputed factual position, the petitioner cannot be permitted to approach the Consumer Forum for the balance amount treating the payment as only part payment against the claim unless he establishes that he accepted the amount under undue influence, misrepresentation or fraud played by the insurance company. No such plea has been put forth by the petitioner. The only point made by learned counsel is that after receipt of the amount, the petitioner sent a letter to the insurance company asking for the payment of balance amount. This, however, cannot provide any comfort to the petitioner to reopen the matter having accepted the amount sent by the insurance company and signed the discharge vouched sent by the insurance company. The claim of the petitioner stood settled. The view taken by the State Commission is in line with the judgment of the Apex Court in the case of United India Insurance vs Ajmer Singh Cotton and General Mills and Ors.  [(1999) 6 Supreme Court Cases 400]. In the absence of any allegation of fraud, misrepresentation or undue influence, we cannot agree with the contention of the learned counsel.

7.     In view of the above, we do not find any merit in the revision petition which is liable to be dismissed. We dismiss the same at the threshold with no order as to cost.

……..………Sd/-……………………

Presiding Member

 

……....……Sd/-………………………

Member

          FIRST APPEAL NO. 692 of 2006

State Consumer Disputes Redressal Commission Delhi)

Devinder Singh Gupta S/o Late Shri B.L. Gupta Resident of H.No. I-4 Mandir Wali Gali No.10 Brahampuri, Delhi-53 Presently at Pocket F, 56-D, MIG Flats, GTB Enclave Dilshad Garden Delhi-93

  Versus

                                                        …      Respondent

          HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT

For Appellant                     :   Mr. Santosh Kumar, Advocate

1.      This first appeal has been filed by Devinder Singh Gupta, the original complainant before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the State Commission) and Appellant herein, being aggrieved by the lesser compensation awarded to him by the State Commission in respect of his complaint of medical negligence against Dr. Vivek Pal, Respondent herein. 

2.      In his complaint before the State Commission, Appellant had stated that following a minor complaint of a cosmetic nature in his left eye he consulted Respondent, who was an eye surgeon, in his clinic in Daryaganj in June, 1993, who after examining him informed that he was suffering from an innocuous growth known as Pytreygium and since there was likelihood that the growth may increase excision was advised through a minor surgery, which would ensure that the Appellant’s eye would become normal within five days.  Appellant, therefore, agreed to undergo this surgery, which was conducted in October, 1993 in Respondent’s clinic at Masjid Moth, New Delhi and he was thereafter prescribed medicines for both local application, which included Mitomycine-C, as also oral medication.  However, soon after Appellant’s left eye became red and there was acute pain and irritation, which persisted, and, therefore, he consulted the Respondent, who assured him that if he continues to regularly use Mitomycine-C, his eye would become normal.  However, during the course of using this medicine, Appellant’s eye further deteriorated and became very dry and there was loss of vision in that eye.  Appellant complained about this to Respondent, who changed the medicine, which only further aggravated the condition.  Appellant, therefore, consulted another ophthalmologist Dr. G.C. Mukherjee, who informed him that his left eye had become very dry due to wrong prescription of Mitomycine-C and he was advised to consult Dr. P. Vishwanathan Gopal atGeetanjali Hospital, New Delhi, who confirmed that the eye had got damaged due to prolonged use of Mitomycine-C.  Appellant thereafter went to All India Institute of Medical Science, New Delhi, where this diagnosis was confirmed by a Cornea Specialist-Dr. Anita Panda.  He was advised to stop using all the medicines, including Mitomycine-C.  Being aggrieved because of the medical negligence and deficiency in service on the part of Respondent, because of which the Appellant’s eye became dry, he issued a legal notice to Respondent to pay him Rs.10 Lakhs as compensation but received no response.  Appellant, therefore, approached the State Commission with a complaint of medical negligence and deficiency in service against Respondent and requested that he be directed to pay Rs.10 Lakhs as damages and compensation since there was total loss of vision in Appellant’s left eye, which had adversely affected both his professional and personal life, as also any other relief as deemed appropriate. 

3.      Respondent on being served filed a written rejoinder denying the above allegations, which he termed as false, frivolous and vexatious.  It was contended that Appellant approached him with a condition known as Pytreygium, which is a growth of extra skin and if it reached the pupil area of the eye, it could permanently hamper the Appellant’s vision.  Surgery was, therefore, necessary, which was satisfactorily conducted.  Appellant, thereafter advised both oral medication as also medicine through local application and a week later when the healing of the Appellant’s eye was completed, he was advised to useMitomycine-C for two weeks since this was necessary to prevent recurrence of Pytreygium.  This medicine, which comes in the form of injection, was converted into eye drops for use three times a day and Appellant was verbally told that over use of this medicine for more than two weeks is harmful.  Unfortunately, Appellant did not heed this advice and instead of coming back for a further check up appears to have continued using Mitomycine-C and taking treatment from various other doctors as per his own whim and fancy.  It was only on 03.03.1994 i.e. after over four months that Appellant visited the Respondent and told him that he was still continuing the use of Mitomycine-C.  Respondent immediately asked him to discontinue the same and to come back after 15 days.  Appellant again did not heed this advice and consulted Respondent after three months i.e. on 22.06.1994 when he was prescribed natural tear drops and lacritubeointment.  A perusal of these facts clearly indicate that it was the Appellant who was responsible for the damage caused to his left eye by prolonged use ofMitomycine-C on his own volition and against medical advice given by Respondent.  There was, therefore, no deficiency in service or medical negligence of Respondent.

4.      The State Commission after hearing the parties and on the basis of evidence produced before it held the Respondent guilty of “limited negligence” by not advising the Appellant in writing to use Mitomycine-C only for a particular limited period.  The relevant part of the order of State Commission reads as follows :

“28.   By not prescribing in writing in the prescription that medicine Mitomycine-C should be used, at first instance, only for two weeks to O.P. has committed an offence of limited medical negligence as complainant also cannot be excused for contributory negligence by not approaching the treating Doctor after few days and hopping from one Doctor to another and continued using the medicine for long resulting in dry-eye syndrome causing loss of vision in the eye.

 

29.    OP is guilty of this limited medical negligence amounting to deficiency in service due to which the complainant has lost his vision of one eye though he can also be not absolved from contributory negligence which is a mitigating circumstance for awarding compensation.”

5.      The State Commission, therefore, held that a lump-sum compensation of Rs.50,000/- to the Appellant would meet the ends of justice. 

7.      Learned counsel for both parties made oral submissions.

8.      Learned counsel for the Appellant contended that the State Commission erred in holding the Respondent guilty of only limited medical negligence and on the other hand holding the Appellant guilty of “contributory negligence” by not following the advice of Respondent.  In fact, following the surgery the Appellant did visit the Respondent doctor for further check-up prior to 03.03.1994.  According to Appellant, Respondent had prescribed him Mitomycine-C on 18.10.1993 and the prescription did not indicate either the duration for taking the medicine or its possible harmful side effects.   The Appellant was also not advised when he should come back for a follow up check.  Further, when the Appellant visited the Respondent on 03.03.1994 with a serious complaint regarding his operated eye, Respondent again sought to hide the correct facts by recording that the condition of appellant’s eye as also the vision was normal whereas by then he had already started losing his eyesight and he was having acute pain in his eye because of which he was constrained to approach other doctors, who advised the Appellant to immediately stop the use of Mitomycine-C.  It was these doctors who informed him that the problem in his left eye had occurred due to over use of Mitomycine-C, which should not have been used for more than two weeks.  Counsel for the Appellant further stated that the conduct of the Respondent was suspect before the State Commission as is evident from the fact that he did not produce the necessary documents on the ground that these had been destroyed in a fire.  Because of the medical negligence and callousness on the part of Respondent, Appellant lost the vision in his left eye causing him a great deal of mental agony and adversely affecting his work as a senior clerk in the Supreme Court of India.

9.      Learned counsel for Respondent denied the above allegations and stated that it is not factually correct that Respondent had prescribed Mitomycine-C to the Appellant on 18.10.1993 i.e. immediately following the surgery.  In fact, he was prescribed other medicines and ointments after the surgery and it was only after a week when the eye had healed that Mitomycine-C was prescribed to the Appellant.  It is a proven fact in ophthalmology medical literature thatMitomycine-C is successful in checking the recurrence of Pytreygium, which has a very high incidence of recurrence and is routinely prescribed for limited periods following such surgeries.  It was under these circumstances that Respondent rightly prescribed this medicine to the Appellant.  Although not written down in the prescription, it was made clear verbally to the Appellant that the eye drops were to be used three times a day for a limited period of two weeks and its over use was harmful.  This is further confirmed by the fact that Respondent converted only one vial of Mitomycine-C injection into eye drops, which would have lasted at the most for a little over two weeks.  From this fact alone, it is clear that the Appellant had been procuring this medicine and getting it converted into eye drops from some other doctor(s) and in this way using it for several weeks i.e. till 03.03.1994 when he next visited the Respondent, who immediately directed him to discontinue the use of this medicine.  Learned counsel for Respondent pointed out that a senior ophthalmologist of Safdarjung Hospital, New Delhi, Dr. Malik, has confirmed to him in writing that Appellant had consulted him and also informed him that he was continuing to use Mitomycine “on his own”. Learned counsel for Respondent stated that Appellant continued to disregard medical advice of Respondent even after 03.03.1994 by not coming for follow up visits, which he was advised to do by Respondent, who had prescribed him some other medicines and wanted to assess their effect.  From the above facts, it is clear that Appellant, who was not an illiterate person and who had been clearly orally advised to use Mitomycine-C eye drops only for a limited duration by Respondent, failed to follow this advice and continued to use the medicine on his own, for which Respondent cannot be held responsible, particularly since Appellant did not even come for the follow up visit after two weeks.  There was no medical negligence or deficiency in service on the part of Respondent, who had prescribed the right medicine and given correct advice regarding its limited period of use.  The present first appeal, therefore, having no merit deserves to be dismissed.

10.    We have heard learned counsel for both parties and have carefully gone through the evidence on record.  The fact that Appellant visited the Respondent’s clinic with a complaint in his left eye and was detected with Pytreygium, for which a minor surgery was conducted is not in dispute.  It is also a fact that Appellant was prescribed Mitomycine-C by Respondent, which is a drug of choice, to ensure that Pytreygium does not recur since it has a high degree of recurrence. While it is a fact (as also observed by the State Commission) that no directions were given by Respondent in writing to Appellant regarding the duration for which the drug should be used or any written precaution against its prolonged use, we find force in the contention of Respondent that since he had converted only one vial of Mitomycine injection into eye drops, this itself indicates that the intention was clearly for its limited use for about two weeks and not for several months.  When specifically asked by us, learned counsel for the Appellant also fairly conceded that Respondent had converted only one vial of Mitomycineinjection into eye drops, thus confirming the Respondent’s clear intention regarding its use for a limited period.  It is, thus, apparent that Appellant had been using this medicine for several weeks by getting the Mitomycine injection converted into eye drops through some other source and not by the Respondent, for which Respondent cannot be held responsible.  It was under these circumstances that the State Commission had held the Respondent guilty of only “limited medical negligence” for not having put down in writing the dosage and duration of the medicine in the prescription slip.  We agree with this finding.  We further agree that the Appellant is guilty of “contributory negligence”  by not visiting the Respondent for follow up visits as advised on more than one occasion and instead consulting one doctor after another and also continuing Mitomycine-C for long period on his own volition, which resulted in the  dry  eye  syndrome  and consequent loss of vision in the left eye. 

11.    To sum up, we uphold the order of the State Commission that Respondent is guilty only of “limited medical negligence” by not giving a written prescription and instead verbally advising the Appellant, for which a compensation of Rs.50,000/- is reasonable and we, therefore, confirm the same.  The present first appeal is dismissed.  Respondent is directed to pay a sum of Rs.50,000/- to the Appellant within six weeks, failing which it will carry interest @ 6% per annum for the period of default.  No costs.     

 

Sd/-

(ASHOK BHAN, J.)

PRESIDENT

 

Sd/-

MEMBER

 Mukesh    

(From the order dated 10.01.2011 in Appeal No. 749/2010

of Chhattishgarh State Consumer Disputes Redressal Commission)

RAMSUYASH PANDEY Ward No. 5, New Teachers Colony Tilda, Post Nevra District Raipur Chhattisgarh

….. Petiitoners

Versus

2. EXECUTIVE ENGINEER, CHHATTISGARH STATE VIDYUT VITRAN COMPANY Raipur Chhattisgarh

 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner(s) : In Person