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Judgment
Dr. S. M. Kantikar, Member
The Petitioner has filed the instant Revision Petition filed under section 21 of the Consumer Protection Act, 1986, against the Order dated 22.12.2009 passed by the State Consumer Disputes Redressal Commission, Bhopal, MP (for short “the State Commission”) in Appeal No. 621 of 2007, wherein the Appeal was dismissed and upheld the order passed by the District Forum, Bhopal.
Brief facts are that the Complainant underwent operation of removal of left eye cataract and insertion of intra ocular lens (IOL) at Bhopal Eye Hospital (OP-2) on 09.12.2004. OP-1 promised her that after lens implantation she would not have to use spectacles. On 10.12.2004, she found that blood was coming from the operated eye. She was taken to the operation theater, wherein OP-1 put stitches and asked to come for checkup after 10 days. But due to severe pain on 13.12.2004 she approached the hospital, wherein the stitches were removed and was again called on 20.12.2004, however, she did not get any relief from severe pain in left eye. Even after taking treatment for 5 months, she lost her vision and did not get relief from the pain. Thereafter, she approached other Ophthalmologists and came to know that the OP-1 instead of implanting IOL in posterior chamber, it was implanted outside i.e. in anterior chamber at eccentric location. However, the OP-1 never accepted the fact. Therefore, being aggrieved the Complainant filed a Consumer Complaint before the District Forum, Bhopal.
The District Forum allowed the Complaint and ordered the Petitioner No.2 i.e. the New India Assurance Company Ltd. to pay an amount of Rs.5 lakhs under the Doctor’s Professional indemnity policy to the Complainant and Rs.5,000/- towards cost of litigation.
Being aggrieved, the insurance company filed F.A. No.621/2007 and the Opposite Party Dr. Ajit S. Jain filed F.A. No.667/2007 before the State Commission.
The State Commission dismissed both the Appeals and confirmed the Order passed by the District Forum.
Unsatisfied with the order of the State Commission, the Opposite Party No.1 filed this Revision Petition.
Heard the learned Counsel for both the parties and perused the material on record.
The learned counsel for the Petitioner argued that the District Forum and State Commission have committed errors and passed order on mere presumptions on the exaggerated facts stated by the Complainant.
On careful perusal of medical record-indoor case sheet, the Complainant was suffering from advanced cataract in her left eye and on 09.12.2004 ECCE+IOL (Extra Capsular Cataract Extraction + Intra ocular lenses) was done. The patient came to doctor with the complaint of hyphaemia (oozing of blood). Thereafter, the patient consulted various doctors in Bhopal and at Indore wherein she came to know the negligence caused by the OP-1. We have perused various prescriptions of Dr. Prashant Bhartiya, Bombay Hospital, Indore who treated her for several days. The prescription dated 09.02.2006 revealed as below:
H/o (2) cataract surgery at Bhopal 9/12/2004. Poor visual recovery- Also has been having chronic pain & redness.
Chronic uvetitis persisting due to irritation of rigid haptics of PC & OL in AC.
The discharge ticket of OP-2 hospital revealed a sticker of Aurolab-REF. S3600SQ, Power +25.1. Thus, it was PCIOL. Further, we have perused the specific instruction No. 4 of the Aurolab (Intraocular Lens Division) The safety and effectiveness of a posterior chamber lens if placed in the anterior chamber has not been established and such implantation to be unsafe in some cases. The OP- 1 did not mention in operation notes or discharge card about the cataract has been removed by ECCE instead of ICCE operation. Thus, it is evident that IOL was not implanted in correct chamber. As even after treatment and several visits to the OP-1 when the vision not recovered and itching in eye did not subside. Therefore, the Complainant consulted various Ophthalmologists namely Dr. K.L. Gupta, Dr. Smt. R. Anand, Dr. Som, Dr. Sandip Agrawal and Dr. Dubey, Psychiatrist during 06.04.2005 to 04.05.2005. All Ophthalmologists in their prescriptions mentioned that the IOL should have been implanted inside the membrane but it was wrongly implanted by the OP-1 outside the membrane and the lens was fixed eccentric. They further have suggested to take treatment from higher centres Shankar Netralaya, Chennai or at Mumbai.
We further note that, the State Commission vide order dated 07.03.2008 directed the Complainant to appear before the Director/HOD Department of Ophthalmology, Gandhi Medical College, Bhopal for examination of her operated eye. It was reported that on 12.03.2008,
"Vision Right Eye - 6/6
Left Eye-6/12 with pinhole - 6/9
Left Eye - Old healed iridocyclititis with anterior chamber IOL (Posterior chamber IOL implanted in anterior chamber)
Posterior chamber rent visible in the supriomedial region
Tension - 12.2 mm of Hg
Fundus - Optic disc normal."
Inference - Posterior chamber IOL has been planted in anterior chamber. Treatment papers show that treatment has been given for post-operative inflammation."
Thus, it was proved that the Posterior chamber IOL has been implanted in anterior chamber, thus, it was not an accepted standard of practice. We have perused few books on Ophthalmology. It was noted that after cataract removal, if primary IOL implantation was not possible, in that case it was the duty of ophthalmic surgeon to re-do IOL implantation i.e. secondary IOL. In the instant case the Opposite Party No.1 could have done secondary IOL after one month if facilities are available with him or he could have referred the patient to higher centre. We are of considered view that pain in the left eye and other problems were due to the wrong procedure adopted by the OP-1. It was the failure of duty of care, thus, the medical negligence.
We note, there are concurrent findings of the fact. The revisional Jurisdiction of this Commission is extremely limited, which was held by the Hon’ble Supreme Court in the recent judgement in ‘Sunil Kumar Maity vs. State Bank of India & Anr.’ . It was observed that as under:-
“9. It is needless to say that the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the National Commission itself had exceeded its revisional jurisdiction by calling for the report from the respondent-bank and solely relying upon such report, had come to the conclusion that the two fora below had erred in not undertaking the requisite in-depth appraisal of the case that was required. .....”
On the basis of the discussion above, within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the State Commission. We find no jurisdictional error, or a legal principle ignored, or miscarriage of justice, as may necessitate interference in the exercise of the revisional jurisdiction from this Commission.
The Revision Petition, being misconceived and devoid of merit, is dismissed.