Decided on December 06,2008

Andip Vinayak Aher Appellant
Rukhmini Manohar Karad Respondents


- (1.) THIS is an appeal filed by org. complainant, who is aggrieved by the fact that his consumer complaint against Dr. Smt. R. Karad had been dismissed by the District Forum, Nashik by its impugned judgment delivered in consumer complaint No. 57/2007 on 27.3.2008. Facts to the extent material may be stated as under: The complainant had approached the opposite party Dr. Smt. R. Karad at Sharda Clinic, Sathey Baug at M.G. Road at Nashik after seeing advertisement published in local T.V. Channel by Dr. Smt. R. Karad about excimer laser treatment. According to the complainant, he had approached Smt. R. Karad after reading advertisement, in her clinic. His number of right eye was 13 and that of the left eye was 12. He was told by the doctor that after conducting excimer laser treatment his number would be brought to zero and, therefore, he opted for laser treatment given by the opposite party. On 8.12.2004 as per advice given by opp. party doctor he had undergone the various tests. Thereafter, on 10.12.2004 opposite party conducted excimer laser operation on his eyes. Immediately, after the operation the eye -sight of the complainant was reduced to a great extent but doctor assured him that within 4 -5 months his eye -sight would come to normal. After operation number of both the eyes got reduced to 5. Therefore, doctor suggested second operation and it was performed on 13.5.2005. Even after having second operation, he was not having proper eye -sight and number, which was expected to go to zero became 6. But doctor assured him that in due process it would come down to Zero. According to the complainant, because of operation he has got diminished eye -sight and he is finding it difficult to do his day to day work. He is Advocate by profession and eye -sight is very important for his profession and because of negligence of opposite party doctor his eye -sight has been badly damaged and he had suffered tremendous damage and, therefore, opp. party is squarely guilty of not rectifying the defects properly and he has been cheated by the opp. party doctor and therefore, he is required to suffer continued mental agony because of cheating. Therefore, he filed consumer complaint and claimed damages of Rs. 4,50,000 and Rs. 5,000 as cost of proceedings.
(2.) OPP . party filed written statement and pleaded that she is expert Ophthalmologist of Nashik. She had given all details and information to the complainant before conducting operation on his two eyes. She had supplied broacher giving all details of laser treatment. He had read that broacher. She had never assured that his eye sight of both the eyes would be restored back to normalcy after operation. She had told him that she would try to reduce the number of both the eyes by operation she was performing on him. She had cautioned him that since the complainant had high eye number, it would not be wiped out completely but she would reduce it substantially by performing operation. She had suggested the complainant that he should instal or implant contact lenses, but since that was very expensive, the complainant refused to opt for that protocol suggested by her and opted for excimer laser treatment and gave written consent to that effect. She as such performed two operations on the complainant and his number was reduced to 5. She asserted that because of operation conducted retina of both the eyes had not been damaged in any manner and complainant certainly would get benefit since his eye -sight was reduced to 5. Therefore, she asserted that she was not guilty of any negligence in conducting two operations and in giving leaser treatment on both the eyes of the complainant. She therefore prayed that the complaint should be dismissed with cost.
(3.) ON the basis of affidavits and documents, the Forum below in its order observed that the excimer laser treatment was employed to reduce the numer of eye sight. In this process number of eye is reduced to zero that is the object of conducting operation. But many in times number can be anywhere between zero and -+ 0.25 to -+ 0.5. Even after laser treatment given the number of the complainant had been reduced to 5. So, certainly after treatment the complainant got benefited by the operation. His eye -sight number was reduced substantially though it was not totally brought down to zero. However, the complainant had not adduced any medical expert evidence to prove that while conducting the operation, opp. party doctor was guilty of medical negligence. Burden is on the complainant to prove that the opp. party doctor was guilty of medical negligence and medical negligence of the doctor has got be proved by adducing expert evidence. No such expert evidence is adduced by the complainant. The Forum below noted in its order that the complainant had not adduced affidavit of any Ophthalmologist in support of his contention and his own affidavit alleging medical negligence on the part of Dr. Karad was not sufficient to hold that Dr. Karad was guilty of medical negligence. On the other hand, the Forum below mentioned in its order that the opposite party filed affidavit of Dr. Anup Shah, Nashik. His affidavit has revealed that because of laser treatment given eye -sight number is not brought to zero, but it can be reduced and because of laser treatment neither retina nor main nerve of the eyes gets damaged. The complainant did not file any counter affidavit or expert opinion to the affidavit of or that of the affidavit of Dr. Anup Shah and therefore, Forum below held that there was no medical negligence proved against Dr. Karad and, therefore, it was pleased to dismiss the complaint. As such, the complainant has filed this appeal.;

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