V.K.AGARWAL,PRESIDENT - (1.) THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 23.4.2004 in complaint No. 223/03 by District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) directing the appellant to pay to the complainant compensation of Rs. 2,00,000 within 30 days failing which interest @ 9% p.a. from 19.5.2003 was directed to be paid. Rs. 2,000 as cost of the complaint, were also awarded.
(2.) THE facts not in dispute are, that the complainant/respondent has cataract in his right eye. He therefore approached for treatment the appellant No. 2 M/s. Medical Institute, Raipur (hereinafter called 'Institute' for short) on 7.7.2002. Appellant No. 1 Dr. B.P. Sharma examined him and advised surgery in the right eye of the complainant. It is further not in dispute that on 12.8.2002 complainant's right eye was operated upon by appellant No. 1 Dr. B.P. Sharma in appellant No. 2 Institute and he was thereafter discharged on the same day. It is further not in dispute that the complainant went for follow -up checkup to the appellant No. 2 Institute on 16.8.2002, whereafter he was permitted to go to Korba, where the complainant resided. It is further not in dispute that the complainant developed pain and problem in his operated eye and was advised to come to the appellant No. 2 Institute at Raipur. He went there on 24.8.2002. The complainant was again examined by the appellant No. 1 Dr. B.P. Sharma on 24.8.2002. It is further not in dispute that as complications developed in the right eye of the complainant, appellant No. 1 Dr. B.P. Sharma referred the complainant to 'Shankar Netralaya', Chennai, a hospital of higher specialty. It is also not in dispute that the complainant was treated from 6.9.2002 to 13.9.2002 at Shankar Netrayala and ultimately his right eye had to be eviscerated (removal of eye -ball) and cosmetic shell was fitted after operation.
(3.) IT was averred in the complaint that the complainant also visited appellant No. 2 Institute on 26th, 28th and 29th August, 2002 and on 3.9.2002. However, there was no improvement in the complications and problems which developed in his operated right eye and, ultimately, appellant No. 1 Dr. B.P. Sharma referred the complainant/respondent to Shankar Netralaya, Chennai. It was further averred that necessary precautions were not observed by the appellant Nos. 1 and 2, as a result of which fungal infection in the complainant's eye developed. It was further averred that though the complainant was complaining about the complications and problem in his eye, yet he was not attended properly. It was also averred that reference to Shankar Netralaya, Chennai was made belatedly on 3.9.2002. It was averred that fungal infection was detected at Shankar Netralaya, Chennai. It was averred that fungal infection developed due to carelessness and negligence on the part of appellant No. 1 in conducting surgery and in not referring the complainant earlier; as a result he had to suffer evisceration of right eye -ball and cosmetic shell was fitted after removal of his right eye. Complainant, therefore, claimed total compensation of Rs. 10,50,000 with interest and cost, etc. The appellant Nos. 1 and 2 resisted the complaint. They averred that the complainant/respondent had not paid any charges for treatment and therefore he cannot be treated as their consumer and thus the complaint was not maintainable. It was denied that there was any negligence on their part in performing surgery or treatment of the complainant. It was averred that there was proper sterilization of the Operation Theatre of the Institute as well as of the instruments used in the Surgery. It was also averred that there was no delay in referring the complainant to Shankar Netralaya, Chennai. It was averred that the surgery of the complainant was done with due care and that the operation was successful, without any complications or problems. It was further averred that complainant was completely well cared post -operatively for almost about 2 weeks and had no complications till 24.8.2002. It was further averred that on 24.8.2002 the complainant was examined by the appellant No. 1 and had no complications then. It was further averred that fungal infection in the right eye of the complainant developed while he was at his home and that it was detected by appellant No. 1 for the first time on 3.9.2002. It was further averred that since there was no facility of fungal culture in the appellant No. 2 Institute the complainant was informed accordingly and was advised to take further treatment at Shankar Netralaya, Chennai. The stand of the appellant Nos. 1 and 2 was that the fungal infection developed in the right eye and evisceration was necessitated due to negligence, carelessness of the complainant, in not strictly following post -operative advice regarding care and precaution given to the complainant, and his attendant. It was averred that there was no negligence or deficiency in service by the appellant Nos. 1 and 2. It was accordingly prayed that the complaint be dismissed.;