IMPORTANT POINTS
(1) In cases of deficiency of medical services, duty of care does not end with surgery.
(2) While report of Medical Council can be relevant for determining deficiency of service before a consumer forum, it cannot be determinative, especially when it contradicts evidentiary findings made by a consumer forum.

ORDER :

1. Delay condoned.

2. Leave granted.

3. The Appellant before us, a BPL card holder, is the father of Master Irshad, a 13-year-old boy who lost complete vision in his right eye following an allegedly negligent cataract surgery undertaken by the Respondents. The complaint preferred by the Appellant under Section 12 of the Consumer Protection Act, 1986 was allowed by the District Consumer Disputes Redressal Commission (‘DCDRC’) However, the order of the DCDRC was set aside by the West Bengal State Consumer Disputes Redressal Commission (‘SCDRC’) and thereafter, the revision petition Disputes Redressal Commission (the ‘NCDRC’) was also dismissed vide order dated 09.06.2016, which is impugned before this Court.

Brief Facts:

4. The facts, to the extent relevant, are that on 14.11.2006, Master Irshad sustained an injury in his right eye. The next day, he was taken to Disha Eye Hospital and the examination report revealed that Irshad was suffering from traumatic cataract and required a minor surgery. Being unable to finance his son’s treatment at Disha Eye Hospital, the Appellant approached Respondent No.1, a doctor and partner at Megha Eye Centre i.e., Respondent No. 2 on 18.11.2006.

5. Thereafter, Respondent No. 1 affirmed the previous medical opinion and accordingly, conducted the surgery on 24.11.2006. After the surgery, Irshad began experiencing irritation, pain, and blood clotting and despite visiting Respondent No. 1 multiple times, there was no improvement in his condition. Eventually, Respondent No.1 referred them to the Regional Institute of Ophthalmology (‘RIO’) and a month later, on 19.04.2007, the Appellant and his son visited the RIO and were informed that it was a case of Retinal detachment leading to permanent loss of vision in the right eye, caused due to the faulty operation conducted by Respondent No. 1.

6. Vide order dated 16.05.2013, the DCDRC found that there was deficiency in the medical services provided by the Respondents herein and inter alia directed payment of INR 9,00,000 as compensation, in favour of the Appellant within a period of one month, failing which, the amount would be subject to an interest @ 10% until the date of realisation. The DCDRC relied on the uncontroverted expert evidence provided by Dr. Anindya Gupta, RMO-cum-Clinical tutor from the Burdwan Medical College to hold that Irshad lost his vision due to the negligent and careless attitude of Respondent No. 1 manifesting through lapses in pre-operative and post-operative care and rehabilitation.

7. On the other hand, the SCDRC vide order dated 11.09.2015 held that the Appellant herein failed to establish deficiency of service/negligence on part of the Respondents and dismissed the complaint of the Appellant. The SCDRC relied on the report of the West Bengal Medical Council (the ‘Medical Council’) dated 18.05.2015 which exonerated Respondent No. 1 of all charges of misconduct/negligence and instead found contributory negligence on part of the Appellant as he visited the RIO only after a delay of 1 month, contrary to the advice of Respondent No. 1.

8. Similarly, the NCDRC also held that there was no negligence on part of the Respondents and concluded that the Appellant’s delay of one month in approaching the RIO was fatal for his son.

Submissions & Analysis:

9. Learned Counsel for the Appellant vehemently contends that the NCDRC failed to consider that the SCDRC undertook a selective appreciation of evidence, completely disregarding the uncontroverted expert evidence provided by Dr. Gupta regarding the lapses in pre-operative and post-operative care provided by the Respondents.

10. Per Contra, Learned Counsel for the Respondents submits that both the NCDRC and the SCDRC have correctly placed reliance on the decision of the Medical Council to arrive at their conclusions regarding the absence of negligence on part of the Respondents.

11. This Court has heard the Learned Counsel for the parties and perused the record.

12. Upon perusal of the orders of