Date of Filing 06.12.2023

                                                                                                             Date of Disposal: 22.04.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                             ...….MEMBER-I

               THIRU.P.MURUGAN, M.Com, ICWA (Inter), BL.,                                                          …….MEMBER-II

CC.No.123/2023

THIS MONDAY, THE 22^nd DAY OF APRIL 2024

1.Mrs.G.Sangeetha,

    W/o.Gopinath,

    No.3A/13, Sandhu Street,

    Tiruttani -631 209, Thiruvallur District.

2.Ms.G.Jyotsna,

    D/o.Gopinath,

    Represented by her mother and natural

    Guardian Mrs.G.Sangeetha,

    No.3A/13, Sandhu Street,

    Tiruttani, Thiruvallur District 631 209.                                             ......Complainant.

                                                                              //Vs//

Dr.N.Sathish Kumar,

Consultant Eye Surgeon,

M/s.Nehha Nethralaya, Kanchipuram,

No.92, Kamarajar Salai,

(Near N.A.C.Jewellers),

Kanchipuram – 631 501.                                                                      .…..Opposite Party.

Counsel for the complainants                                     : M/s.M.Samuel Raja, Advocate.

Counsel for the opposite party                                    :  M/s.S.Vigneshwar, Advocate.

This complaint coming before us on various dates and finally on 15.04.2024 in the presence of M/s.M.Samuel Raja, counsel for the complainant and M/s.S.Vigneshwar, counsel for the opposite party and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainants u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite party in the matter of failure to issue the diagnosis report to the complainants on refusal by the complainants to buy spectacles from the opposite party after undergoing an eye check up along with a prayer to direct the opposite party to repay a sum of Rs.1000/- being the bill amount, to pay a sum of Rs.3,00,000/- each towards compensation for mental agony and hardship caused to the complainant, to issue medical diagnosis report free of cost along with cost of the proceedings to the complainants.

Summary of facts culminating into complaint:-

2. Aggrieved by non issuance of diagnosis report, the present complaint was filed.

3. The 1^st complainant along with the 2^nd complainant had consulted the opposite party by paying the consultation fee a sum of Rs.500/- each on 17.09.2023 at 1.30pm.  By mentioning some medical terminologies, the opposite party prescribed both to start use of spectacles and compelled them to choose it from the opposite party’s clinic. Complainants expressed their opinion of purchasing the spectacles from some other shop and requested the Diagnosis Report.  Despite paying the consultation fee of Rs.500/- each, the opposite party demanded separate payment for providing the diagnosis report.  The patient/consumer was entitled to receive their diagnosis report for which they had paid as it was essential for understanding the complainants’ medical condition and receiving appropriate medical care. The opposite party failed to prominently display his consultation fees in front of his chamber, which was required for transparency and informed decision-making for patents seeking his services.  Hence complainants sent a legal notice to the opposite party on 26.09.2023 and the same was received by the opposite party on 30.09.2023, but the opposite party neither sent any reply nor turned up to issue the patients’ diagnosis report. Thus aggrieved by the act of the opposite party the present complaint was filed to direct them to repay the bill amount of Rs.1000/-, to issue the complainants’ medical diagnosis report free of cost, to pay a sum of Rs.3,00,000/- to each complainants towards compensation along with cost of the proceedings to the complainant.

The crux of the defence put forth by the opposite party:-

3. The opposite party filed version disputing the complaint allegations contending inter alia that two patients Mrs.G.Sangeetha and Miss.G.Jyostsna came for consultation with Dr.N.Sathish Kumar.  That when patients came for consultation, the importance of applying eye drops to check the retina explained to them by the attenders but they refused to undergo retina checkup. The patients and their attenders refused to sign the required consent forms.  After explaining the procedure repeatedly patients and the attenders were quarreling with the working staffs in the clinic. Exact spectacle prescription could be given only after post mydriatic test (PMI), after 3 days.  Here Mrs.G.Sangeetha, Miss G.Jyostsna and the attenders did not agree for the above eye examination procedure. If they agreed for the routine eye examination procedure the exact medial report and spectacle prescription would have been given.  The correct medical report and spectacle prescription could not be given to the patients without checking the retina, optic nerve, and doing post mydriatic test.  Consultation charges were clearly explained to the patients and their attenders.  Routine non-emergency eye checkup fees was Rs.500/- and after knowing the fees, the patients paid the required consultation fees. Proper medical ethics were followed in spite of patients and the attenders quarrelling with the clinic staffs.  There is no negligence as the patients did not sign the required consent forms to carry out further eye examination to give the medical report and exact spectacle prescription.  Thus he sought for the dismissal of the complaint.

5. On the side of complainants Proof Affidavit along with documents marked as Ex.A1 to Ex A4 were submitted. The opposite party inspite of filing written version did not file any proof affidavit or documents or written arguments and hence the evidence on the side of the opposite party was closed on26.02.2024.

Points for consideration:-

1. Whether the alleged act of denial by the opposite party to issue the diagnosis report to the complainants on refusal by the complainants to buy spectacles from the opposite party after undergoing eye check up amounts to deficiency in service and whether the same has been successfully proved by the complainant?
2.  If so to what relief the complainant is entitled?

Point No.1:-

            6. Heard the oral arguments by the complainants and the opposite party. Inspite of filing written version the opposite party did not file any proof affidavit or documents or written arguments and hence the evidence on the side of the opposite party was closed. Though a change of vakalath was filed on the side of the opposite party, no steps were taken by them to reopen the case and to file their proof affidavit or written arguments. The opposite party appeared party in person and made oral arguments.

7. The primary allegations made by the complainants is that inspite of they undergoing eye check up with the opposite party by paying the necessary consultation fee of Rs.500/-, the diagnosis report was not provided to them as they refused to buy spectacles from the opposite party.  The other allegations made was that the fee was not displayed in the clinic enabling the persons visiting the clinic to decide about the treatment.

8. On the other hand, the opposite party who appeared as party in person argued that as the complainants refused to sign the consent form no necessary tests were taken to issue a report.  Further it is argued by him that from the beginning the complainants were quarrelling with the staffs.

9. On appreciation of the entire pleadings and material evidences it is found that the factum of the complainants approaching the opposite party for eye check-up on 17.09.2023 at 1.00pm after paying the consultation fee of Rs.500/- each was not disputed by either of the parties. The only grievance of the complainants is that the opposite party refused to provide the tests report enabling them to purchase the spectacles from any outside optical.  From the written version of the opposite party it is found that the opposite party had made certain tests on the complainants, however, as they refused to sign the consent form and for applying the drops to dilate, no further tests has been taken for the complainants.  If the version was true the opposite party ought to have produced the report of the complainants for whatever tests taken by him for the complainants as it is nobodies case that no test has been taken.   In such circumstances this commission could not believe the version of the opposite party. 

10. As per regulation issued by the Medical Council of India, maintenance of Medical Records and issuance was made mandatory to any medical Professional and when no medical records issued the same amounts to Professional mis-conduct as produced hereunder,

Maintenance of Medical Records:

1.3.1. Every physician shall maintain the medical records pertaining to his/her indoor patients for a period of three years from the date of commencement of the treatment in a standard proforma laid down by the Medical Council of India and attached as Appendix 3.

1.3.2. If any request is made for medical records either by the patients / authorized attendant or legal authorities involved, the same may be duly acknowledged and documents shall be issued within the period of 72 hours.

MCI ethics regulations 7.2 further clarifies that not giving records can amount to professional misconduct.

11. Further it has been categorically held by various judgments of the NCDRC that the Hospital should be held liable for deficiency in service for not providing medical records to the patient.

12. In the said circumstances, when the specific allegation of the complainants that they had approached the opposite party for eye tests and had paid the consultation fees and had also undergone the test but no report was produced on their refusal to buy spectacles was clearly established, the burden of proof to prove the contra shifts on the opposite party.  However the opposite party failed to discharge the onus by providing any documentary evidence.  Hence, when the complainants are entitled for the diagnosis report or eye glass prescription after eye check up entitling them to purchase the spectacles as per their wish, non issuance of the report on the pretext of some reason by the opposite party clearly amounts to deficiency in service.

Point No.2:-

13.  As we have held above that the opposite party had committed deficiency in service we direct the opposite party to issue the report with respect to whatever examinations/diagnosis undergone by the complainants with the opposite party on 17.09.2023.  Further we also award a sum of Rs.25,000/- to be paid towards compensation for the mental agony and hardship caused to the complainant along with Rs.5000/- towards cost of the proceedings.

In the result, the complaint partly allowed against the opposite party directing him

a) To issue the report with respect to whatever examinations /diagnosis undergone by the complainants on 17.09.2023 with the opposite party within four weeks from the date of receipt of copy of this order failing which opposite party to repay the Bill amount of Rs.1000/- (Rupees one thousand only) to the complainants;

b) To pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for the mental agony and hardship caused to the complainants;

 c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainants.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 22^nd day of April 2024.

                                                                                                                                                                                                                                       Sd/-                                                          Sd/-                                                     Sd/-

 MEMBER-II                                            MEMBER-I                                        PRESIDENT

List of document filed by the complainants:-

   Sd/-                                                                    Sd/-                                                    Sd/-

MEMBER-II                                                 MEMBER-I                                    PRESIDENT