Subhada S Deshpande vs Jangid Builders Pvt Ltd

THIS appeal has been preferred assailing the order dated 17.1.94 passed by the learned District Forum, Calcutta CDF Case No. 3156/94.

BY the said impugned order, the learned District Forum, Calcutta has directed the appellants to refund the cost of the spectacles supplied to the respondent. The crux of the complaint is that the respondent examined her eyes with the appellants who prescribed for spectacles which caused to the respondent headache and other complications those were brought to the notice of the appellants. Lastly the respondent got her eyes examined with other specialist/ othalmologist in N.R.S. Medical College and Hospital which prescribed for lesser power than the powerful spectacles as prescribed by the appellant, as a result of which the complainant/respondent was relieved from headache and other complications using the more powerful spectacles prescribed and provided with by the appellants. The said actions on the part of the appellants are definitely deficiency in service and/or negligence causing not only complications to the respondent but also caused harassment and mental pain to her.

THE contention of the appellants that the learned Forum below is not expert to adjudicate the dispute about the headache suffered by the complainant/ respondent due to user of the spectacles but the fact remains that the eye specialist of N.R.S. Medical College and Hospital prescribed the lesser powerful spectacles than the powerful spectacles prescribed by the appellants and sooner the complainant/respondent uses the lesser powerful spectacles the headache of the complainant/respondent subsided.

THE said fact leads to us to believe that the cause of headache suffered by the complainant/ respondent was due to higher powerful spectacles prescribed by the appellants which amounts to negligence and/or deficiency in service on the part of the appellants vis -a -vis wrong spectacles supplied by the appellants to the respondent due to said wrong prescription. In view of the above observation, the order passed by the learned District Forum, Calcutta does not appear to have any defect in the said judgment and order. We, therefore, dismiss the appeal and affirm the judgment passed by the learned District Forum, Calcutta and direct to comply the same within 15 days from the date of communication of this order. There will be no order as to the cost. ORDER Mr. Justice A.K. Bhattacharya, President -Here appellant No. 4 tested the eyes of the complainant/respondent and gave a prescription. The prescription was served by the employees of the appellant No. 1 M/s. G.K.B. Opticals. The respondent alleged pain and headache after wearing the spectacles. She was at first advised to wear the spectacles constantly. There being no relief she was requested to visit the appellants. The respondent, however, did not meet them any more and consulted another doctor who prescribed a lesser power for her. The respondent was told that the power prescribed by the appellant No. 4 was wrong as it was higher than the actual power required by her. The respondent -complainant thereafter filed the complaint and the Calcutta District Forum ordered the refund of the entire price of the spectacles from the appellants. 8. The question to be considered is whether there was deficiency in service as against the appellants and if so, is the order for compensation against them correct ? 9. Here the optomatrist (appellant No. 4) made the prescription. The allegation against her is that she made a wrong prescription by suggesting a higher power for the eyes. Appellants 1 to 3 only served the prescription by preparing the lenses and manufacturing the spectacles. If they prepared the correct lenses, there was evidently no deficiency in service as against them. There in no whisper that appellants 1 to 3 prepared spectacles by using lenses different from those prescribed by the optomatrist. So, where is the deficiency against them ? In my opinion no deficiency being proved against them, the order of refund of the price of the spectacles cannot stand. 10. As regards appellant No. 4 it may be that her prescription was not correct. But it depends on expert evidence that the prescription was actually wrong. Even if it is assumed that the complainant was relieved of her pain and headache by using the power prescribed by the subsequent doctor, it does not automatically prove the deficiency of the previous doctor. Some kind of expert evidence is necessary to hold the appellant No. 4 guilty of deficiency in service. The doctor who opined that the previous prescription was wrong has not been examined. Neither is there any explanation for not examining him. Mere oral submission on behalf of the complainant is not enough to indict the doctor in this case. Considering the facts, therefore, I do not think that the order of the District Forum has been a proper one. Hence this appeal is allowed and the order of the District Forum dated 17.11.94 passed in C.D.F. 3156/94 is hereby set aside. Appeal dismissed.