Dr.

Shyam Kumar vs Rameshbhai Harmanbhai Kachhiya on 10 November, 2005

National Consumer Disputes Redressal

Dr. Shyam Kumar vs Rameshbhai Harmanbhai Kachhiya on 10 November, 2005
Equivalent citations: I (2006) CPJ 16 NC
Bench: M Shah, R Rao
ORDER Rajyalakshmi Rao, Member

1. This revision petition is filed by Dr. Shyam Kumar against the order dated 31.7.2001 passed by the
State Commission, Gujarat, in Appeal No. 196/ 1997 whereby his appeal was dismissed with costs of
Rs. 1,000 to be paid to the complainant. Brief facts of the case are:

Shri Rameshbhai Harmanbhai Kachhiya filed Complaint No. 56/95 before the District Forum at
Nadiad for the alleged medical negligence and deficiency in service by petitioner. The respondent is
a factory worker. In January, 1991, he developed difficulty in vision and approached the petitioner
for treatment. Glaucoma was diagnosed in both eyes and the petitioner operated left eye on 9.1.1992
and right eye on 21.4.1992 on an assurance that his vision would improve. The respondent
continued check ups and took required medicines but there was no improvement. On 16.6.1992, the
petitioner performed cataract operation on right eye, yet there was no improvement. The petitioner
referred him to Dr. Shroff at Navsari as the Retina of the respondent's eye was weakened.

2. Dr. Shroff has stated that the retina in both the eyes of the respondent is not in a good condition
and because of this condition his vision power is bad and the respondent is not having vision in his
eyes. The Civil Surgeon of Nadiad has also issued 100% disability (vision) certificate. Taking into
consideration of these facts the respondent being unable to see now which he was able to see
previously and since he has lost vision after the treatment, a complaint has been filed in the District
Forum against the petitioner claiming Rs. 5 lakh as compensation. District Forum held that there is
deficiency in service and directed the petitioner to pay a sum of Rs. 1,85,000 with 12% interest from
the date on which complaint has been filed and to pay costs of Rs. 300. Appeal to the State
Commission by the petitioner herein was dismissed with costs. Hence, he is in revision before us.

3. The revision petitioner argued alleging:

(a) that the complainant/respondent was not a consumer as he was rendered free service;

(b) that the complaint was time barred, i.e., the respondent filed the consumer complaint on
7.9.1995 after a gap of almost three years which is clearly an after thought;

(c) that the respondent consulted Dr. Shroff and he was under his treatment for one and a half
years, i.e., from July, 1992 to December, 1993. During this treatment the respondent was also
operated twice by Dr. Shroff and in spite of treatment given by Dr. Shroff the respondent's eye vision
was not restored to normal and slowly deteriorated. .The certificate issued by Dr. Shroff is that the
retina of the respondent has been damaged and Dr. Shroff has nowhere in his deposition state! that
the loss of vision was due to negligence in performance of the. operation or treatment given by the
petitioner. In fact, he stated that "It cannot be said that the applicant lost his eyes because of
negligence of any doctor";

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 Dr. Shyam Kumar vs Rameshbhai Harmanbhai Kachhiya on 10 November, 2005

(d) that the medical record of the treatment given to the respondent was maintained for three years
which is the statutory time recommended by the Medical Council of India and, therefore, adverse
finding against revision petitioner on this account is untenable in law;

(e) that the respondent consulted Dr. Shirish Jethwa after the first operation and the contention of
the respondent that the nerves were not damaged in the operated eye before he had other two
operations cannot be relied upon because Dr. Jethwa was not called as a witness; and

(f) that three cases which have been cited in the order of the State Commission are not applicable in
the present case; and the revision petition should be allowed with cost.

4. We heard both the parties and perused the record carefully. The contention that the respondent is
not a consumer is without any substance. Both the Fora after perusing the records rightly held that
complainant paid Rs. 980 as charges and Rs. 110 as anaesthesia fees from the respondent towards
the services rendered by him.

5. On the issue of limitation, it is an admitted fact that cataract operation was performed on
6.6.1992 and thereafter complainant was assured and reassvtred that vision would improve by the
petitioner. As there was no improvement, the respondent consulted Surgeon Dr. Shroff, who
certified on 30.12.1993 which reads as follows:

This is to certify that Mr. Ramesh Chandra H. Patel (our reference No. 12383) has been examined
today. Condition of his retina in both eyes is not good. Hence his vision is very poor and is less likely
to improve in near future. Therefore, he may be considered as a visually handicapped person.

6. Hence, we find that the cause of action arose only when the respondent actually came to know
failure of the operation. In our opinion the complaint is very much within time and is not barred by
limitation.

7. The issue that needs to be resolved is whether there is deficiency in service by the petitioner. The
petitioner is fully aware when he checked the eyes of the respondent that there is a problem of
glaucoma and also a problem of cataract. Being fully aware of condition of the patient, it was his
duty to bring it to the notice of the respondent about the condition and the risks involved in this
operation which he did not do.

8. It is the case of the complainant that revision petitioner has carried out three operations on the
respondent, one on the left eye for glaucoma on 9.1.1992; second on the right eye on 21.4.1992 for
glaucoma and the third on 16.6.1992 on the right eye for cataract. Petitioner, doctor had not
produced any medical records relating to these operations.

9. After these three operations, since the respondent was not happy, he approached Eye Specialist
Dr. Ashok Shroff who on 30.12.1993 certified that the condition of the retina in both eyes of the
respondent is not good. His vision is very poor and is not likely to improve and he may be
considered as visually handicapped person.

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 Dr. Shyam Kumar vs Rameshbhai Harmanbhai Kachhiya on 10 November, 2005

10. Further, it is needless to mention that without having three pre-operative, operative and post
operative finds and other investigation reports, no expert can give an opinion whether
treatment/operation was correct or not. The revision petitioner who had performed three operations
failed to explain what was the condition of the respective eyes before every operation; what was the
indication of each operation; what operation did he perform; what was the result of each operation
and why in spite of that the complainant lost his vision. That was the reason why Dr. Shroff could
not say whether the complainant lost his vision because of negligence or not. In such cases, the
principle of res ipsa loquitur can be applied. It was for the petitioner doctor, to establish the reasons
for losing of the eye sight.

11. The doctor is duty bound to inform the patient about the details of the disease afflicting him, the
various alternatives available to him and the risks involved in the proposed treatment. Obviously, in
this case, the patient was not informed of any of these; instead three operations one after the other
have been carried out without the patient knowing why they have been done in that particular
sequence and what relief he can expect after each operation.

12. In cross-examination the petitioner has admitted that there is a separate register for in-door and
out-door patient and in that register it is necessary to write as to when the operation started, when it
was completed and who has given anaesthesia. In the said register it is necessary to write the time of
commencement and completion of the operation. He has also admitted that he has operated the
patient twice for glaucoma (Jammer) and once for cataract. The petitioner has also not denied in his
deposition such receipt issued by the hospital. The receipt produced by the complainant is
corroborated by the prescription of the opponent in which the amount of Rs. 980 and Rs. 110 for
anaesthesia are mentioned. This prescription is admitted by the petitioner. Therefore, such a denial
by the petitioner would lead to presumption that the petitioner is not prepared to admit the obvious
fact. Further despite the receipt of the amount as fees for operations, petitioner has denied the same
to contend that it was a free service. On that basis, the District Forum and the State Commission
have rightly arrived at the conclusion that it was not a free service, and, therefore, held that the
petitioner was liable to be proceeded under the Consumer Protection Act, 1986.

13. Further, there cannot also be any dispute that after the operations were performed by the
petitioner, the complainant has lost his eye sight and that is also proved by leading the evidence of
Eye Specialist, Dr. Ashok Kumar Shroff. However, it was sought to be contended by the petitioner
that the complainant might have lost the vision due to glaucoma. For this purpose, there is no
evidence, if the complainant has lost his sight due to glaucoma there was no reason for the petitioner
to operate the complainant subsequently for cataract. In any case, the petitioner, for the reasons
best known to him, has not produced the medical records of the complainant on the ground that he
had destroyed the same. This is rightly not believed by the District Forum and the State Commission
on the ground that the petitioner could produce the register and consent forms but, has
conveniently alleged that he has destroyed the medical record. Hence, this is apparently a false
defence. Such type of false defence by the petitioner would clearly indicate that the petitioner is not
prepared to tell the truth before the Commission. As per the Medical Council of India, the doctors
are required to preserve the records at least for three years. The doctor is also duty bound to inform
the patient about the risk involved in the proposed treatment. Patient cannot be deprived of such

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 Dr. Shyam Kumar vs Rameshbhai Harmanbhai Kachhiya on 10 November, 2005

information.

14. Considering this aspect and the fact that the petitioner has failed to explain the reason why the
complainant has lost his eye sight, in our view, the order passed by the State Commission does not
call for any interference.

15. Hence, this revision petition is dismissed. There shall be no order as to costs.

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