Dr. Ravi David Prabhakar vs Dhondiram (Deceased) & Anr.

Dr. Ravi David Prabhakar, who was arrayed as Opposite Party No.-1 in the Complaint filed by the Complainant Shri Dhondiram has approached this Commission by filing this present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (herein after referred to as 'Act') against the Order dated 04.02.2018 passed by the State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Aurangabad, (herein after referred to as 'State Commission'), whereby the State Commission has allowed the Appeal preferred by the Complainant and had set aside the Order dated 23.09.2008 passed by the District Consumer Disputes Redressal Forum, Ahmednagar (Hereinafter referred to as, 'District Forum').

The State Commission had directed the Respondents i.e. the Opposite Party No.- 1 and 2 to pay Rs.2,00,000/- jointly and severally to the Complainant / Legal Heirs within a month from the receipt of this Orders, or else it will carry interest rate of 6% per annum from the date of the Order till realisation of the amount.

Briefly stated that the facts giving rise to the present Petition are as follows:

According to the Complainant, Dhondiram Dagadu Akolkar, it is alleged that both the Opposite Parties i.e., Dr. Ravi David Prabhakar, the Opposite Party No.-1 / Petitioner herein C/o Fair Bank James Friendship Memorial Hospital and Community at Wadala-Bhairoba Tq. Newasa Dist. Ahmednagar and Dr. R. K. Shelke, Respondent No.-2, Resident of Ahmednagar had arranged eye camp at Wadala in the Hospital. In the said Hospital all other tests were carried and he was informed that Surgery for right eye is necessary to be conducted and his vision will improve after the said surgery. Even after the said surgery the Complainant could not found his vision improved. Therefore he was required to approach many time after the said surgery to the Opposite Party No.-1 / Petitioner. The Petitioner treated the Complainant since 18.02.2002 to 23.03.2006. But they could not cure his problem; therefore he approached to the Civil Surgeon Ahmednagar. The Civil Surgeon certified on 18.04.2006 that the Complainant is permanently disabled due to loss of his eye sight. The Complainant issued legal notice dated 03.08.2006 to the Opposite Party and claimed the compensation. Said notice was not responded by the Opposite Party. No compensation was paid. Therefore, the Complainant approached the District Forum by demanding compensation of Rs.2,00,000/-.

The Opposite Parties appeared before the Forum and denied the Complaint mainly on the ground that on 18.02.2002 any camp for cataract surgery was not arranged. Even no advertisement in that respect was ever issued by the Opposite Parties. It is submitted by the Opposite Party No.-1 / Petitioner that the Respondent No.-2 herein arranged the camp in the Hospital of the Opposite Party No.-1 / Petitioner, but the Opposite Party No.-1 has no concern with the said camp. The Opposite Party No.-1 / Petitioner only made available the building of the Hospital and Machinery, Operation Theatre, etc. It is further submitted by the Opposite Party that the list of the patient who were operated in the said camp did not mention the name of the Complainant. Therefore the Complainant is totally false and frivolous. The Complainant had approached the District Forum with the intention to grab the compensation money, hence the Complaint be dismissed.

After hearing both the parties, the District Forum, Ahmednagar referred the matter to the Civil Surgeon, Nashik for the Expert Opinion. But the Civil Surgeon could not give his opinion as all the case papers regarding treatment given to the Complainant were not supplied to him. As the documents were not supplied the Civil Surgeon expressed doubts about such Surgery. By relying on the said Report, the District Forum dismissed the Complaint.

Feeling aggrieved, Shri Dhondiram, the Complainant preferred an Appeal before the State Commission. As already mentioned herein above, the State Commission vide Order dated 04.02.2018 had allowed the Appeal and granted the relief.

We have heard Mr. Amol N. Suryavanshi, Learned Counsel for the Petitioner and, Mr. Yogesh K. Ahirao, Learned Counsel for the Respondent and perused the Impugned Order passed by the State Commission as also other documents filed along with the Revision Petition.

From the perusal of the Impugned Order passed by the State Commission, we find that the State Commission had mentioned the papers filed by the Complainant as also the facts regarding the eye camp arranged or not. The relevant paragraph 8 and 9 of the Impugned Order passed by the State Commission is reproduced below for ready reference:

We thus heard both the Counsel and perused the record. It is the case of the Complainant that he was admitted in the Opponent No.-1 Hospital on 18.02.2002. To support his contention he had produced the case papers issued by the Respondent No.-1 Hospital. It is also mentioned on the said case paper that he was admitted in the ward. Case history was also recorded in the said papers and accordingly treatment was given to the Appellant. Some required tests were also carried out in the said hospital. Therefore in our view the contention of the Respondent that the Appellant was never admitted in their hospital cannot accepted. District Forum called the expert opinion from Civil Surgeon, Nashik but relevant case papers regarding treatment of Appellant were not supplied to the Civil Surgeon. In our view the doctors who treated the Appellant are the proper person to explain about the treatment given to the Appellant. But both the Respondents only tried to mention the fact that the Appellant was never treated in any eye camp, but they failed to explain about the case papers produced on record by the Appellant. Both the Respondents flatly denied admission of the Appellant in any eye camp, but they did not explain the case papers produced by the Appellant on record, neither they submitted any explanation before the Civil Surgeon about the treatment. Therefore the Civil Surgeon expressed his inability to give any opinion about the medical negligence. In our view this is a definitely deficiency in service on the part of the Respondent.

Appellant is a layman, illiterate person and farmer. He is not very well aware about the treatment given to him. He might have under impression that he was admitted for surgery in the eye camp. But in fact he was admitted in Respondent No.-1 Hospital and the Respondent No.-2 conducted the surgery. Respondent also did not deny the case papers issued by the respondent No.-1 hospital to the Appellant. In our view the Respondents are under obligation to submit the explanation about the treatment given to the Appellant. In the year 2006 when he got permanent disability certificate from Civil Surgeon the disability was confirmed and therefore he rightly approached to Forum alleging medical negligence against the Respondent. Forum while dismissing the Complaint relied on the report of the Civil Surgeon and committed error. In our view at the most Forum could have asked the explanation from the Respondents about the case papers filed by the Complainant before the Forum. But Forum also relied on the fact that there was no eye camp arranged on 18.02.2002. Respondents tried to take advantage of the ignorance of the Appellant and only tried to submit that there was no arrangement of eye camp on 18.02.2002. In our view, the Respondents are liable for medical negligence as well as deficiency in service. Hence we are allowing the Appeal by setting aside the judgment and the order passed by the District Forum, Ahmednagar. (Emphasis Supplied) From the perusal of the Paragraph 8 and 9 reproduced above, we find that the State Commission had held that the Forum should have asked the explanation from the Respondents i.e. the Doctors that the case papers filed by the Complainant before the Forum, but it did not do so. However, the State Commission also did not ask for any explanation from the Doctors who had, according to the papers filed by the Complainant, treated the Complainant and simply held that the Doctors are liable for negligence.

In our view, the Orders passed by the State Commission does not deal with the matter on merits as to whether the Doctors were indeed negligent in treating the Complainant or not. From the papers filed by the Complainant, the State Commission ought to have analysed in terms of conclusion that on the basis of the treatment given by the Doctors there some Medical Negligence was there which have occurred.

In this view of the matter, we are of the considered opinion, that the Impugned Order passed by the State Commission cannot be sustained and is hereby set aside. The Appeal is restored to the file of the State Commission and the State Commission is requested to decide the Appeal afresh in accordance to with law expeditiously, if possible within three months from the date a copy of this Order is filed before it. In view of the facts and circumstances, the Parties shall bear their own cost.