BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, RAJASTHAN, JAIPUR


APPEAL NO: 956/2006


Mrs. Damyanti Devi w/o Sh.S.C.Verma,

r/o 4 Ga- 2, Jawahar Nagar,

Jaipur.

Complainant appellant


Vs.


1. Dr. Indu Arora

r/o C 12B1/104 Pitambar Building,

Prithiviraj Road, Jaipur.

2. Superintendent of SMS Medical College

& Hospital, Jaipur.

3. State of Rajasthan through the Secretary

Govt. of Raj., Medical and Health Deptt.,

Secretariat, Jaipur.


Opposite parties- respondents


Date of judgment


Before:


Mr.Justice Sunil Kumar Garg- President

Mr.G.S.Hora- Member


Mr.S.C.Verma counsel for the appellant

Mr.Anant Bhandari counsel for respondent no.1

Mr.S.C.Mittal counsel for respondents no. 2 & 3

2


JUDGMENT

BY THE STATE COMMISSION ( PER HON. MR.JUSTICE SUNIL KUMAR GARG, PRESIDENT )


This appeal has been filed by the complainant appellant against order dated 4.5.06 passed by the District Forum, Jaipur IInd Jaipur in complaint no. 574/2005 by which the complaint of the complainant was dismissed against the respondents.


2. It arises in the following circumstances-


That the complainant appellant had filed a complaint first before this Commission on 13.8.01 ( later on it was transferred to District Forum, Jaipur by this Commission through order dated 18.5.05 on ground of jurisdiction as pecuniary jurisdiction of the District Forum was increased upto the limit of Rs. 20 lakhs ) inter alia stating that the complainant appellant Smt. Damyanti Devi was having some problem in her right eye and for that she had consulted respondent no.1 Dr. Indu Arora at her residence on 23/24 July 1997 and a sum of Rs. 100/- were paid and her eye was examined by respondent no.1 in her laboratory on 23.7.97 and she was told by respondent no.1 that after undergoing minor cataract extraction operation at SMS Hospital, Jaipur by her the vision of thay eye would be restored. It was further stated in the complaint that thereafter the complainant appellant was got admitted in the eye unit of respondent no.1 who is Professor & Unit Head of the Deptt. of Opathalmology, SMS Hospital, Jaipur on 25.7.97 and the operation was conducted by respondent no.1 of her right eye on 28.7.97 and the case of the complainant appellant was

3


that while operating the eye for extraction of cataract, respondent no.1 had negligently damaged the retina which was not the subject matter of the operation and actually it was the Cornea of the eye which had the lens from where cataract was to be extracted and the damage to the retina had resulted in grievous injury to the retina of the right eye causing serious retina detachment and vitreous hemorrhage. It was further stated in the complaint that there after Dr. Subhash Sharma was called for to help respondent no.1 and thus it was a case of the complainant appellant that respondent no.1 while performing the operation for extracting the cataract of the right eye of the complainant appellant had damaged the retina due to carelessness and negligence. It was further stated in the complaint that thereafter she had consulted Dr. R.K.Tongia who had found that there was grievous injury to the retina of the right eye and his report was marked as Anx. 6 to 8 and further that fact was corroborated and certified by Dr. G.L.Verma, Professor in Opthalmology, SMS Medical College, Jaipur and thereafter Dr. P.L.Nagpal, MS, F.A.C.S of Retina Foundation, Ahmedabad and Dr. Ashok Puri, M.S.D.O. (Hon.) Jaipur. It was further stated in the complaint that since the damage to her right eye was serious one, therefore, she was compelled by respondent no.1 to go to ASO- PALOV EYE HOSPITAL, Ahmedabad and upto 30.8.97 the respondent no.1 was assuring the complainant appellant that her operation of cataract extraction had been done successfully and light will come in due course and ultimately since in that operation she had lost the vision of right eye and on account of medical negligence on the part of respondent no.1, this complaint was filed against the

4


respondents as respondent no.1 was working under respondents no. 2 & 3 claiming Rs. 11,05,400/-.


A reply was filed by the respondent no.1 before the District Forum and after taking the preliminary objection that the present complaint does not fall within the definition of ' consumer ' as defined in s. 2 (1 ) (d) of the C.P.Act,1986 as no consideration was taken by respondent no.1 for conducting the operation as the operation of the complainant was performed in SMS Medical College & Hospital, Jaipur in capacity as Govt. servant and SMS Medical College and Hospital, Jaipur is a Govt. hospital where medical facilities are given free of charge.


On other points it was stated in the reply that when the complainant appellant was examined by her, she was found having ' Posterior subcapsular and cortical cataract of the right eye and she was advised operation for extraction of the cataract and it was further stated that even Dr. Hari Charan in his report dated 26.6.97 had advised so. It was further stated in the reply that the complainant appellant was advised to undergo fasting blood sugar test, urine examination and to get a report of blood pressure and after the reports were submitted on 24.7.97, she was been admitted in the SMS Hospital, Jaipur on 25.7.97 and was discharged on 4.8.97 and the operation for extraction of the cataract in the right eye was performed on 28.7.97 by respondent no.1. It was further replied that it was wrong to say that while conducting the operation of right eye of the complainant appellant on 28.7.97, respondent no.1 had negligently damaged the retina of the complainant

5


appellant. It was further stated in the reply that during the course of operation, the complainant appellant had developed expulsive haemorrhage which was immediately taken care of as per standard procedures which had been mentioned in the operation notes. It was further replied that the present case was a case of sudden occurence of expulsive sub choroidal haemorrhage and in many medical books and journals it was stated that in some cases while surgery for extraction of cataract been done, it could happen and in the present case also it had happened. It was further stated in the reply that it was wrong to say that retina of right eye was damaged due to negligently performing the operation and that could be the result of complications and it was further replied that respondent no.1 was a qualified eye surgeon as she was Professor and Unit Head of the Deptt. of Opathalmoloty, SMS Hospital, Jaipur and she had achieved many international awards and thus the allegations of carelessness, negligence, inefficiency and want of pre operation care are baseless. It was further stated in the reply in some cases expulsive hemorrhage occurs due to sudden inadvertent rupture of blood vessels at the level of choroid and when choroidal vessel rupture blood collected in the choroid pushes the retina forward to cause a retinal detachment and vitreous hemorrhage and occurance of vitreous hemorrhage or expulsive hemorrhage are inherent in such types of operations which could not be anticipated and thus from every point of view there was no medical negligence on the part of respondent no.1. Further so far as the report of Dr.R.K.Tongia is concerned, it was stated that it was misleading and incomplete and even the report of Dr.G.L.Verma would not be helpful in any manner as Dr.

6


Verma had not given the cause of vitreous hemorrhage and retinal detachment and further the case of respondent no.1 was that even no medical negligence could be attributed from the report of Dr.P.N.Nagpal dated 9.9.97 and Dr. Puri and thus the respondent no.1 had taken all the measures to overcome the rare complication that had resulted in the present case and hence no case for medical negligence and it was prayed that complaint be dismissed.


A reply was also filed by respondents no. 2 & 3 and they have taken the same pleas which were taken by respondent no.1 and it was prayed that complaint be dismissed.


After hearing the parties, the District Forum, Jaipur IInd, Jaipur through impugned order dated 4.5.06 had dismissed the complaint of the complainant appellant inter alia holding that the present case was not a case of medical negligence on the part of respondent no.1 as the complications that had arisen in this case were of such type of complications that could arise in case where the operation of cataract was being done but the loss of vision of the right eye after operation could not be attributed on account of medical negligence on the part of respondent no.1.


Aggrieved from the said order dated 4.5.06 passed by the District Forum, Jaipur IInd, Jaipur, this appeal has been filed by the complainant appellant.


3. In this appeal the main contention of the learned counsel for

7


the complainant appellant is that the findings recorded by the District Forum are not based on correct appreciation of entire materials available on record as the District Forum had over- looked the report of Dr. R.K.Tongia and Dr.G.L.Verma where the medical negligence on the part of respondent no.1 is well established and further since respondent no.1 was to make operation of cataract by extracting but while the operation was being done, she had damaged the retina and this fact is itself goes to show that respondent no.1 was negligent in performing the operation as the case of sub choroidal haemorrhage was the direct result of doing something which was not to be done and as she would have not taken proper care, therefore, a case of medical negligence is found established as because of that operation the complainant appellant had lost the vision of her right eye though she had approached for operation of cataract extration only and in view of this the findings of the District Forum dismissing the complaint of the complainant appellant could not be sustained as they suffer from basic infirmity, illegality and perversity and it was prayed that appeal be allowed.


4. On the other hand, the learned counsel appearing for the respondents has supported the impugned order of the District Forum and has argued that the present complaint does not fall within the definition of ' consumer ' as defined in s. 2 (1 ) (d) of the C.P.Act,1986.


5. We have heard the learned counsel for the appellant as well as for the respondents and gone through the entire materials available on record.


6. The first question that arises for consideration in this

8


case is whether the complainant appellant is a consumer or not within meaning of s.2 (1) (o) of the C.P.Act,1986.


7. In the land mark judgment, Indian Medical Association Vs. V.P.Shanta reported in AIR 1996 SC 550, the Hon'ble Supreme Court held that the medical service was a 'service' covered by the Consumer Protection Act, and every patient who paid or promised to pay fees was a 'consumer' as defined in Consumer Protection Act. The Supreme Court held-


(1) .................

(2) ................

(3) ................

(4) ..................

(5) ..................

(6) ....................

(7) Where as a part of consideration of service the employer bears the expenses of medical treatment of an employee and his family members, the service to such an employee and his dependents by a Medical Practitioner or a hospital/ nursing home would not be free of charge and would constitute " service" under the Act.


8. A bare perusal of point 7 of the above judgment makes the complainant appellant a consumer within the meaning of s.2 (1) (o) of the C.P.Act,1986 as the complainant appellant is the wife of a retired servant of Govt. of Rajasthan and since the victim is his wife and therefore, for purpose of service that was to be rendered by the Govt. Hospitals, she would be a consumer and thus the findings recorded by the District Forum on first point where it was held that she was not a consumer could not be sustained and thus

9


it is held that the complainant appellant is a consumer and the complaint filed by her is maintainable.


9. There is no dispute on the point that prior to the admission in the hospital of respondent no.2 the complainant appellant had taken advice from Dr. Hari Charan of K.C.Memorial Hospital, Jaipur who had given advise on 26.6.97 in the following manner-


" Advised Cataract Operation, preferably with intraocular lens implant when the patient feels visually handicapped."


10. In this case there is no dispute on the point that the complainant appellant was admitted in the eye unit of respondent no.1 who is Professor & Unit Head of the Deptt. of Opathalmology, SMS Hospital, Jaipur on 25.7.97 and the complainant appellant was operated on 28.7.97 and intraocular lens (IUL) was implanted in the right eye for minor cataract extraction and she was discharged from the hospital on 4.8.97.


11. There is also no dispute on the point that while performing the operation of the right eye of the complainant appellant for extraction of cataract , as a result of which there was a sudden occurence of expulsive sub choroidal haemorrhage and the retina was damaged.


12. There is no dispute on the point that thereafter the complainant appellant had consulted other doctors and she had also gone to Ahmedabad where Dr. P.N.Nagpal of ASO PALOV EYE HOSPITAL on 9.9.97 had given the following report-


10


" Report of Smt. Damyanti Bhatnagar 60 yrs. F from Jaipur our case no. 2560 of 10.8.97. She was referred to us by Dr. Indu Arora of SMS Medical College, Jaipur. ECCE RE was done on 28.7.97 over there, there was a suspicion of explusive haemorrhage during surgery and measures had been taken to over come the problem. Presented vision on 10.9.97 was OL PR defective in RE & 6/9 LE with correction Tension was 37 mm RE & 17 mm and RE anterior segment revealed corneal oedema. View of fundus was hazy. USG examination showed vitreous and chorudal haemorrhage. She was admitted and obserred for a few days and her tension was controlled. On 14.8.97 once again the findings of corneal oedema, defective light projection perceived. Though the tension was well under control. The prognosis of the condition was explained and the management by vitrectomy and drainage of choroidal blood was suggested. The alternative management of wait and observe was accepted by the patient and she was discharged with instruction to see us in a month and continue putting topical sternd and anlaglaucoma drops. She was asked to keep in touch with Dr. Indu Arora at Jaipur."


13. Before proceeding further something should be said about the word Cataract Vitreous Hemorrhage.


Cataract


14. Cataract means any opacity in the lens of the eye that results in blurred vision. Cataracts may be congenital or due to metabolic

11


disease ( such as diabetes ), direct or indirect injury to the lens, or prolonged exposure of the eye to infrared rays or ionizing radiation, but they are most commonly a result of age.


15. The cataract may be of various types such as Subcapsular Cataract, nuclear cataract, cortical cataract.


Vitreous


16. Vitreous- pertaining to the vitreous body of the eye. The vitreous body. It fills the cavity of the eye ball, behind the lens and in front of the retina.


Hemorrhage


17. Hemorrhage means abnormal, severe internal or external discharge of blood.


18. Before proceeding further we must have a bird's eye view pertaining to negligence and medical negligence.


19. Winfield has defined negligence as a tort which is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff.An act involving the above ingredients is a negligent act, it can very well be stated that negligence comprises, (a) Existence of legal duty; (b) Breach of legal duty; (c)Damage caused by the breach.


(a) Existence of legal duty-


12


Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem and depends on him for service and dispensation of that skill, the second party is under an implied legal duty to exercise due diligence as is expected to act at least in such a manner as is expected in the ordinary course from his contemporaries. So it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent upon him to do so, that which would be just and reasonable tantamounts to negligence. Every time a patient visits a

doctor for treatment of his ailment he does not enter into any written contract but there is a contract by implication and any lack of carelessness or proper care can make the erring doctor liable for breach of professional duty.


(b) Breach of legal duty-


There is certainly a breach of legal duty if the person exercising the skill does something which an ordinary prodent man would have done or fails to do that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of the very high degree or of a very low degree but just the relative kind that is expected from an ordinary prudent man in the ordinary course of treatment.


(c) Damage caused by the breach-


The worng, injury occasioned by such a negligence is liable to be compensated in terms of money and the Courts apply the well settled principles for determination of the exact liquidated amount. In a suit for damages on account of negligence, the onus

13


lies on the patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated.


Medical Negligence-


20. The term ' medical negligence' is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this expression.

21. Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practised by an ordinary and reasonably competent man practising the same art.


22. A branch of the civil wrongs is known as negligence. A sub-branch of this is medical negligence, which deals with situations in which a physician or surgeon or other member of the medical profession may have to pay compensation, if he has not exercised reasonable care. The degree of care to be exercised depends on the facts of each case. However, in general, it may be stated that the test is the standard of the ordinary skilled man,exercising and professing to have that special skill. If a medical man fails to measure up to that standard in any respect, he has been negligent and has to pay compensation to the person harmed by him.


23. Once a doctor accepts a patient, this principle becomes applicable, whether the doctor accepts fees or not, and whether the doctor is a private practitioner or a public servant, general

14


practitioner or a specialist. A person who offers medical advice or treatment, implicit undertakes that he has the requisite skill and knowledge. Such a person owes to the patient certain duties, of

which the following are important-


(a) duty of care in deciding whether to take in a case;


(b) duty of care in deciding what treatment to give and in diagnosis;


(c) duty of care in administering the treatment; and


(d) a duty of care in answering a question put to him by a patient when he knows that the patient intends to rely

on his answer.


24. There is a difference between a Specialist and general practitioner. A person may be general practitioner but not specialist and not vice-versa. A specialist is one from whom , in case of a cataract, more skill can be demanded than from a general practitioner. In case of eye the person who holds the degree of Master of Surgery can be regarded as a specialist but not the person who is a general practitioner. A breach of duty any of these duties will support a suit by the patient.


Professional negligence


25. Professional negligence, rather medical negligence is that which , as the term suggests, relates to the medical profession and is the rsult of some irregular conduct on the part of any member of


15


the profession or related services in discharge of professional duties.


26. It may be stated here that to establish negligence on the part of the defendent, the claimant must show-

(a) what is the standard of care;

(b) on the facts of the case, that the defendant's conduct fell below that standard;


Burden of proof


27. In the famous case of Hucks V. Cole decided by Lord Denning (III (2002) CPJ 136 (NC) ), Lord Denning pointed out that a charge of professional negligence against a medical man stood on a different footing to a charge of negligence against the driver of a motor car. It affected his professional status and reputation. Therefore, the burden of proof was correspondingly greater.


28. In halsbury's Law of England (Vol.26 page 17 ), it has been held that a doctor is not liable in negligence because someone else of better skill and knowledge would have prescribed a different treatment or operated in a different way, nor is he guilty of negligence if he had acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men. This principle has been affirmed by the Apex Court in a famous case of Dr. Laxman Balkrishna Joshi Vs. Bapu Godbole (AIR 1969 SC 128 ).


Liability of medical men and hospitals

16


29. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of care. Neither the very highest nor a very low degree of care and competent judged in the light of the particular circumstances of each case is what the law requires. ( Halsbury's Laws of England, 3rd Edn. Vol. 26 P. 17 ).


30. In Clark Vs. Maclenna ( 1983 (1) All. E.R. 416 ), it has been clearly stated that in case where a general duty of care arose and there was failure to take a recognized precaution and that failure was followed by the very beginning, the burden of proof lay on the defendant to show that he was not in breach of any duty.


31. In Poonam Verma Vs. Ashwani Patel (AIR 1996 SC 2111), the Hon'ble Supreme Court has held as under-


" The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances, would do or by doing some act which a reasonable prudent man would not do."


Vicarious liability


32. Vicarious liability means substitute or indirect responsibility of senior doctor when he delegates a task to his junior/ nursing

17


staff or to doctors in locum tenens. In other words, the hospital may be held directly responsible for faulty premises, equipment, inadequate or unqualified staff and other organizational errors and may also be held vicariously liable for the fault of their employees. The hospital authorities are responsible for the whole of their staff, not only for the nurses and doctors but also for the anaesthetists and surgeons.


33. The moment a doctor/ hospital accepts to treat a patient who

has submitted himself for such treatment, the duty of care starts, irrespective of monetary considerations.


34. In such a situation, the hospital cannot escape liability by mere statement that it only provides infrastructural facilities, services of nursing staff, supporting staff and technicians and that it cannot suo motu perform or recommend any operation/ amputation.


35. The second question that arises in this case is whether in performing the operation of cataract of right eye of the complainant appellant, there was any medical negligence on the part of respondent no.1 or not.


36. Before examining the issue of medical negligence, the question that has to be answered is whether respondent no.1 was the qualified surgeon or not for doing the surgery of cataract of the complainant appellant which was done by her on 28.7.97 in the SMS Hospital, Jaipur.


37. A specialist is one from whom in case of contract, more skill can be demanded than from a general practitioner.

18


38. As per the reply of respondent no.1, it is clear that Dr. Indu Arora, respondent no.1 at the relevant time was a Professor and Unit Head of the Deptt. of Opathalmology of the SMS Medical College and Hospital, Jaipur and she is MS in Opthalomology and she is also a member of All India Opthalmic Society and in her affidavit the respondent no.1 had further stated that she is doing the job of eye surgeon for the last 21 years and had performed about 6000 Cataract operations. Thus from the record, it could be said that she was qualified surgeon for doing the job and thus on point of skillness she had passed the requisite tests.

39. Further it is not the case of the complainant appellant that respondent no.1 was not a qualified doctor and not specialized in the respective field to treat the patient. Thus, it is held that respondent no.1 was duly qualified and specialist in the respect field for which operation was done by her on 28.7.97.


40. In book of Complications in Ophthalmic Surgery for words " Expulsive Hemorrhage" the following statement is given-


" Expulsive Hemorrhage

One of the most frightening and serious complications of cataract surgery is the sudden occurence of an expulsive subchoroidal hemorrhage. Vail referred to this as the " bete noire of the ophthalmic surgeon". Fortunately it is rare and will be witnessed only a few times by an ophthalmic surgeon."


41. Further it could be said that Massive choroidal hemorrhage may occur as a sudden catastrophe during an intra-ocular operation; more rarely it happens spontaneously. In both instances

19


it is accompanied by sudden, severe and excruciating pain. In the former case all the intra-ocular contents may be expelled and in the later secondary glaucoma supervenes. A preliminary 2 mm, scleral trephine operation may viate such a calamity in liable cases and, when it occurs at operation, immediate posterior sclerotomy, to allow escape of the blood, should be done and this procedure may save an eye from complete disaster.


42. Thus, from point of view, of medical science expulsive subchoroidal hemorrhage in some cases occures while the patient was being operated for extraction of the cataract and which results in the massive choroidal hemorrhage causing damage to the retina and in this case it had happened and that is why the vision of the right eye of the complainant was lost after the operation.


43. But to say that on that point the respondent no.1 was negligent in conducting the operation of complainant appellant would be wrong one as from the bed head ticket of the SMS Hospital, Jaipur, it further appears that as soon as she found a case of subchoroidal hemorrhage, she had taken all proper steps that could have been taken in the emergent cases and since in this case the damage to the retina was due to subchoroidal hemorrhage that happened in some cases while being operation of cataract and therefore, from that point of view also it could not be said that if there was a subchoroidal hemorrhage while she was being operated, that was due to not exercising reasonable care and skill by respondent no.1 at the time of operation.


44. Thus, it could be held that in a case where injury is inevitable or in cases where some extraneous event happens, the medical man could not be held liable and thus the complainant

20


appellant had failed to prove the fact that there was breach of duty on the part of respondent no.1 in conducting the operation or the operation was done without due care and precaution.


45. It may be stated here that even Dr. P.N.Nagpal in his report dated 9.9.97 had stated that when a case of explusive haemorrhage during surgery was found, measures had been taken by respondent no.1 to over come that problem and this aspect shows that respondent no.1 had taken all the possible steps that could have been taken in that situation while performing surgery of cataract to meet out the case of subchoroidal hemorrhage that had resulted during the operation and therefore, from that point of view also no case of medical negligence on the part of respondent no.1 could be found established.


46. It may be stated here that sometimes something happens despite the exercise of reasonable skill and care and the law itself recognizes the danger which are inherent in surgical operations, but for that the doctor concerned could not be held guilty for medical negligence and in the present case also the respondent no.1 could not be held responsible if something had happened while the complainant appellant was being operated.


47. It may further be stated here that the doctor does not undertake that he will positively cure a patient nor does he undertake to use the highest possible degree of skill, but he definitely undertakes to use a fair reasonable and competent degree of skill and that had been taken by respondent no.1 in the present case and from that point of view also it could not be said that respondent no.1 was negligent in any manner.


21


48. Apart from that so far as the reports of Dr. R.K.Tongia and Dr. G.L.Verma are concerned, they described the factual position but from that it could not be said that there was medical negligence on the part of respondent no.1.


49. To sum up the above discussions, we hold that the complainant appellant had failed to prove any deficiency in service on the part of respondent no.1 or in other words as medical negligence on the part of respondent no.1 and further respondent no.1 had proved by satisfactory evidence that she had taken reasonable care and caution while performing the cataract surgery of the right eye of the complainant appellant on 28.7.97 to the best of her ability and knowledge of the subject and had acted in good faith in the interest of health of the complainant appellant but due to bad luck the complainant appellant had lost the vision of her right eye.


50. For the reasons stated above, the findings of the District Forum by which complaint of the complainant appellant was dismissed are liable to be confirmed one as they are based on correct appreciation of entire materials and evidence available on record and they do not suffer from any basic infirmity or illegality or perversity and hence, no interference is called for with the same and this appeal deserves to be dismissed so far as merit of the case is concerned.


Ex-gratia payment


51. Before parting with this appeal, a question has further arisen that no doubt medical negligence had not been found established against respondent no.1 but the fact that the complainant appellant

22

had lost her vision of the right eye because of that operation which was done by her on 28.7.97 is an established fact and the question arises whether some sort of ex-gratia payment could be ordered to be given to the complainant appellant or not for the loss of her vision of right eye which was the result of the operation done by respondent no.1 from respondent no.3, State of Rajasthan through the Secretary, Medical and Health Deptt., Secretariat ,Jaipur under whom the respondent no.1 was working.


52. It may be stated here that running hospital is a welfare activity undertaken by the Government. The C.P.Act,1986 being an act enacted to provide better protection of the interests of consumers and to provide speedy inexpensive remedy. No doubt the compensation could only be awarded when the complainant had suffered loss due to negligence of the opposite party but that would be for a compensation on account of medical negligence and not for ex-gratia payment.


53. Ex-gratia payments are made as an act of grace and they could not be claimed as a matter of right. If the damage caused is outside the perview or in other words as in the present case, no negligence was found established, if payment is made that would be called a payment as an act of grace on humanitarian grounds and in such a cases a lenient view on humanitarian grounds should be taken.It is further made clear that ex-gratia payment of claims would arise when there would not be any legal liability on the part of respondents to make payment as no medical negligence is found against respondent no.1.

54. It may further be clarified here that if such payments are made, it does not mean that respondent no.1 is bound to make the payment in similar circumstances in future. Such claims are paid to mitigate hardship to the claimant by way of equitable relief.


23


55. Further the word ' ex-gratia' payment itself means a payment which is voluntarily and charitable in nature and since the C.P.Act,1986 is based on the principle of equity, therefore, hypertechnicalities could be ignored and equitable consideration should be kept in mind while deciding the matter.


56. Thus, this Commission is of the view that when the complainant appellant had lost her vision of the right eye while being operated by respondent no. 1 on 28.7.97 and since the complainant appellant is the wife of a retired government servant of Govt. of Rajasthan and now he is a practicing lawyer and looking to the fact that equitable relief is being granted by the Consumer Fora and looking to the fact that the complainant had spent a lot of money in getting further treatment from various hospitals and by loosing the vision of the right eye the complainant appellant would have certainly faced inconvenience, hardship , discomfort, disappointment, frustration and mental stress in life and looking to the fact that even in case loss of vision of one eye in an accident, the State Insurance Deptt. pays Rs. 1 lac to the victim and looking to the fact that the complainant appellant is facing trial of her complaint since 13.8.01 and taken into consideration all facts and circumstances of the case and taken into consideration that the present case is a peculiar case, therefore, if nominal amount of Rs.50,000/- is being ordered to be paid by respondent no.3 to the complainant appellant as ex-gratia payment that would be just , proper and equitable and that would meet the ends of justice.


57. For the reasons stated above, the appeal filed by the complainant appellant is dismissed on merits against respondents. However, on ground of humanitarian and equitable consideration

24


as stated above , respondent no.3 State of Rajasthan through the Secretary, Medical and Health Deptt., Secretariat ,Jaipur is directed to pay a sum of Rs. 50,000/- to the complainant appellant as ex-gratia payment within two months from today failing which the respondent no.3 would pay interest @ 9% p.a. on the above amount from today. It is made clear that this case would not be treated as precedent for other cases.



(G.S.Hora) (Justice Sunil Kumar Garg)

Member President