02/12/15

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

             This Appeal is directed against the judgment and order passed by Learned District Forum, Barasat, North 24-Paraganas in case no.CC 69 of 2012 allowing the complaint with cost of Rs.10,000/- and directing the OP Nos.1 and 2 to pay the sum of Rs.5 lakh as compensation and also a sum of Rs.50,000/- as punitive damages within one month failing which the OPs will be liable to pay Rs.200/- per day till full satisfaction of the decretal amount.

            The case of the Complainant/Respondent, in short, is that he is a retired teacher aged about 74 years.  In 2010 he was examined by OP No.2 at OP No.1 and the doctor suggested cataract operation in the right eye.  Some tests were done and on 16/03/10 the cataract operation was performed by OP No.2.  On 17/03/10 the Complainant was not feeling well and could not see with his right eye and reported the matter to OP No.1 over phone.  He was asked to report on 18/03/10.  On 18/03/10 in the morning the Complainant reported at OP No.1.  The OP No.2 Dr. Paul after examining the Complainant opined that it was infected and suggested a minor operation and assured him of his vision.  The OP No.2 introduced him to Dr. Bhatt of OP No.1 who did the operation in the afternoon on 18/03/10.  From 18/03/10 the Complainant became a patient under Dr. Bhatt.  The right eye of the Complainant was again operated upon on 20/03/10 and finally on 27/04/10.  But the pain increased.  In June 2010 the infected right eye became so painful that he could not sleep even after taking pills.  Ultimately, Dr. Bhatt referred the case to Dr. Chatterjee who treated the infection successfully, but declared in September 2010 that the Complainant’s right eye became damaged permanently and it was beyond redemption.  For the six months the Complainant had to suffer pain and anxiety and with the loss of vision he was unable to offer tuition to the students.  On 25/101/10 the Complainant lodged a complaint against Dr. R. C. Paul with the West Bengal Medical Council, Kolkata.  Under such circumstances, the Complainant filed the complaint before the Learned District Forum. 

            The Learned Counsel for the Appellants has submitted that the cataract operation was uneventful, but subsequently there were complications.  It is contended that Dr. R. C. Paul is an employee of Susrut Eye Foundation & Research Centre and he could not be held personally responsible for the alleged medical negligence.  It is submitted that the particulars of negligence have not been pleaded and proved and the Complainant has simply stated the facts in the complaint.  It is contended that no expert evidence was adduced by the Complainant.  It is submitted that from 22/03/10 to 27/04/10 the Complainant visited the OP No.1 several times.  It is submitted that it was a case of post operative endopthalmitis which was treated as per standard medical practice and procedure.  It is contended that at the initial stage it was not so severe and, as such, the antibiotics were administered followed by PPV.  It is contended that the West Bengal Medical Council is the expert body which opined that there was no negligence.  It is submitted that the Appellant has also filed one Miscellaneous Application bearing no.615 of 2014 citing the report of West Bengal Medical Council as additional evidence.  The Learned Counsel for the Appellant has referred to the decisions reported in 2010 (1) CPJ 29 (SC) [Kusum Sharma & Ors. vs. Batra Hospital & Medical Research Centre & Ors.]; 2005 CTJ 1085 (SC) [Jacob Mathew vs. State of Punjab & Anr.]; III (2011) CPJ 46 (NC) [Subhendu Majumdar vs. Ashish Kumar Bhattacharjee (Dr.) & Anr.]; 2011 (CT1) – GJX – 0195 – NCDRC [Tagore Heart Care & Research Centre Pvt. Ltd. and Dr. Raman Chawla vs. Mrs. Kanta, W/o Shri Parkash Chander]; Civil Appeal No.6284 of 2014 (SC) [Mrs. Kanta vs. Tagore Heart Care & Research Centre Pvt. Ltd.]; III (2011) CPJ 128 (NC) [Baljinder Singh vs. National Insurance Co. Ltd. & Ors.]; III (2009) CPJ 49 (NC) [Malka Tarannum vs. Dr. C. P. Gupta & Anr.]; I (2007) CPJ 383 (NC) [M.A. Ganesh Rao vs. Dr. T.M.A. Pai Rotary Hospital & Ors.]; (2000) 1 SCC 66 [Ravneet Singh Bagga vs. KLM Royal Dutch Airlines & Anr; 2005 (1) CPR 474 [Parimal Kumar Acharya vs. Dr. Tapan Kumar Chakraborty & Anr.].

            The Respondent in person has submitted that after operation he was discharged and on 18/03/10 he felt inconvenience in his right eye and went to OP No.1.  It is contended that in the discharge summary under the column as to diagnosis, it was left blank and there was no mention of the particulars of ailments.  It is contended that without supportive document it was held by Medical Council, West Bengal that there was post operative endopthalmitis and there were so many anomalies in the order of the Medical Council, West Bengal.  It is contended that he went to OP no.1 in connection with cataract surgery and not for treatment of retina/cornea.  It is submitted that OP No.2 conducted the phacoemulsification and, as such, he has been impleaded in this case and Dr. Bhatt has not been impleaded.  It is submitted that no test was done to ascertain endopthalmitis and there is no laboratory test report.  It is submitted that there was lack of due care.  It is submitted that due to non-sterilisation the infection occurred. 

            We have heard the submission made by both sides and perused the papers on record.  In the petition of complaint it has been averred that on 25/10/10 the Complainant lodged complaint against Dr. R. C. Paul with the West Bengal Medical Council, Kolkata and urged for action against him.  The Appellant has filed Miscellaneous Application bearing no.615 of 2014 enclosing the report of the Medical Council, West Bengal wherein it was held that there was no negligence on the part of the treating doctor.  The Learned Counsel for the Appellants has prayed for treating the said report as additional evidence in this Appeal.  Evidently, the final opinion was formed by the Medical Council, West Bengal after the disposal of the complaint case by the Learned District Forum and during the pendency of this Appeal this Miscellaneous Application has been filed.  It is contended by the Appellant that the Respondent/Complainant did not file any written objection against this Miscellaneous Application and, as such, this additional evidence remains uncontroverted and it should be relied upon.

            It is the contention of the Respondent that the opinion of the Medical Council, West Bengal is without any basis and there are so many anomalies.

Having heard both sides and on perusal of the papers on record, we find it expedient in the interest of justice to send back the case on remand before the Learned District Forum for a fresh decision after giving opportunity to the parties for adducing further evidence. 

            The Appeal is allowed.  The impugned judgment is set aside.  The case is sent back on remand before the Learned District Forum with the direction to give opportunity to the parties to adduce further evidence.  The Learned District Forum will thereafter decide the case afresh on merits according to law.