The main legal point established in the judgment is the requirement for filing a consumer complaint within the prescribed period of limitation under Section 24A of the Consumer Protection Act, 1986, and the onus of proof in cases of medical negligence.

ORDER :

Mr. Justice B.C. Kandpal, President:

This is complainant’s appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 31.10.2011 passed by the District Forum, Dehradun, thereby dismissing his consumer complaint No. 46 of 2006, being barred by time as well as on merits.

2. The case is hand pertains to the question of medical negligence and it has to be decided whether or not the opposite party No. 1 Dr. Dinesh Sharma committed medical negligence in the treatment of the complainant Sh. Akash Dora.

3. The factual matrix of the case is that when the complainant was young and of tender age, he consulted the opposite party No. 1 with regard to a minor squint problem in his left eye. It is alleged that the doctor assured that the said problem would be completely cured after the operation and on the said assurance; consent for operation was given by the father of the complainant. It is further alleged that even after the operation, the problem did not subside and the condition of the eye of the complainant worsened. When the bandage was removed, it was found that the eye ball of the complainant’s left eye had become white. The complainant also developed the problem of vomiting, headache and fainting. It has further been averred that when the problem was brought to the notice of the opposite party No. 1, he acknowledged his mistake and confessed that by his mistake, the operation was not successful. The opposite party No. 1 advised for another operation by Dr. Rajiv Mirchia of Chandigarh. The complainant consulted Dr. Rajiv Mirchia and got himself operated upon and incurred the expenditure of Rs. 1,00,000/-. But even after the said operation, the problem increased manifold. The complainant again contacted the opposite party No. 1, who referred him to Dr. N.N. Sood of Shroff Eye Centre, New Delhi. The complainant contacted Dr. N.N. Sood, but his problem increased. Thereafter, the complainant contacted Dr. Daljeet Singh of Amritsar and Dr. Gupta of Aligarh and spent heavy amount on medicines etc., but to no avail. The complainant has alleged that all the doctors have told him that his eye had been badly damaged by the opposite party No. 1 and now, it can not be cured. Alleging medical negligence on the part of the doctor, the complainant filed a consumer complaint before the District Forum, Dehradun.

4. The opposite party No. 1 – doctor filed written statement before the District Forum and pleaded that the complainant contacted him with a complaint on squint in his left eye and on examination, it was found that the said problem is on account of no vision in his left eye. The doctor was told that the complainant had suffered an injury in his early childhood, which caused traumatic cataract and the doctor advised for operation for cataract. It is further pleaded that there can not be guarantee of 100% success in surgery cases and more so, in traumatized eye cases. The operation was successful, but on the 6th day of the operation, the complainant himself injured his eye, which led to gaping/opening of the wound and massive prolapse (brown portion of the eye came out) of the iris brown layer of the eye and on account of the said reason, the complainant was advised to consult Dr. Rajiv Mirchia. It has further been pleaded that if the problem of the complainant increased after he was operated upon by Dr. Rajiv Mirchia, the opposite party No. 1 can not be held responsible for the same. It is also alleged that on account of high pressure in the operated eye, the complainant had a tendency of vomiting and headache and for the said reason, he was referred to Dr. N.N. Sood on 29.09.1994, but the complainant consulted Dr. N.N. Sood in the end of January, 1995. It is further pleaded that there is not an iota of evidence to prove that the opposite party No. 1 was negligent in treating the complainant and conducting the operation of his left eye.

5. The opposite party No. 2 insurance company also filed written statement befo