Fakeer Chand vs Manish Shrivastava Eye Specialistraipur

THIS revision petition is directed against the order dated 01.12.2010 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (in short, ''the State Commission''), by which the State Commission dismissed the appeal filed by the petitioner against the order dated 07.10.2010 passed by the District Consumer Disputes Redressal Commission, Mahsamund (in short, ''the District Forum'') in complaint case no. 8 of 2010. By the aforesaid order, the District Forum had dismissed the complaint.

THE petitioner was the complainant before the District Forum. He alleged medical negligence and deficiency in service on the part of the opposite party (OP) in carrying out a surgery in the right eye of the complainant at an Eye Camp organised by Kolta Samaj Saraipali on 19-20th February 2009. It was alleged in the complaint that when the complainant went on 19.03.2009 to the OP Doctor to get the bandage open, he was unable to see clearly. He therefore, went to the Government Hospital, Saraipali where there were other patients also who had their eye sight affected after the surgery conducted at the aforesaid Eye Camp. The complainant was further treated at the District Hospital of Mahsamund, where he was examined and prescribed medicines for 1 months. Since his eye sight did not improve, he was referred to the Medical College and Hospital, Raipur, where he was diagnosed with post-operative endophthalmitis. He was recommended to undergo surgery and virectomy for retina detachment which was not possible within the Chhattisgarh State. Finally, he filed a consumer complaint alleging medical negligence on the part of the OP Doctor in conducting the eye surgery which resulted in complete loss of eye sight in his right eye and prayed for Rs. 2.80 lakh by way of compensation on various counts.

ON appraisal of pleadings and evidence, the District Forum dismissed the complaint. In appeal by the petitioner, the State Commission affirmed the order of the District Forum.

I have heard Mr. Kaustubh Shukla, learned counsel for the petitioner. In dismissing the appeal, the State Commission observed as under: "The District Consumer Disputes Redressal Commission, Mahasamund (hereinafter called "District Forum" for short), has dismissed complaint case no. 8 of 2010 of the appellant herein, vide order dated 07.10.2010 on the ground that in an Eye Camp organised by Kolta Samaj cataract operation was performed by OP free of cost without obtaining any charges from any of the patient in the camp. The OP was also a doctor of the Government Hospital. Thus services were provided by him in the camp without obtaining any charges and complainant was also not required to pay any amount for the operation. Even if we apply the analogy of case of Indian Medical Association v V. P. Shantha and Ors. (1996) 1 Consumer Law Today 1 of Hon''ble Supreme Court, then also it cannot be inferred in favour of the appellant that he availed some service of the respondent as per section 2 (1) (o) of Consumer Protection Act, 1986 and thus comes in the category of ''consumer''. We find that the District Forum has properly appreciated the question of facts and law involved in the matter and appreciation is as per settled position of law by the Hon''ble Supreme Court as well as Hon''ble National Commission."

MR. Shukla learned counsel for the petitioner has not been able to show any evidence of payment of fees/consideration by the petitioner to the respondent/OP for the eye surgery that he underwent at the aforesaid Eye Camp. Therefore, the finding of the State Commission in the impugned order that there was no relationship of a consumer � service provider between the petitioner and respondent/OP cannot be said to be erroneous on any count. The attempt of Mr. Shukla to cite the rulings of the Apex Court in the case of Indian Medical Association v V. P. Shantha and Others [ (1995) 6 Supreme Court Case 651 ] is misplaced because the entire Eye Camp was conducted without charging any fees/consideration from any patients including the petitioner/complainant and there was no evidence of respondent/OP Doctor being paid any fees for his service.

THOUGH I have considerable sympathy for the petitioner/complainant on account of loss of eye sight that he has suffered, there is no alternative but to dismiss the revision petition in limine on the basis of material evidence produced on record by the petitioner. I order accordingly.