The complainant/respondent approached the petitioner, an Ophthalmologist at Sarojini Eye Hospital, on 29.11.2007 complaining of a problem in his right eye. It was opined by the petitioner that he had developed a Cataract in his right eye, which could be removed by a minor surgery and inserting an IOL (Intraocular Lens), in the said eye. After taking his consent, the procedure was performed, charging a sum of Rs.5,000/- from him. He was discharged from the hospital on the next day i.e. on 30.11.2007. According to the complainant, blood started coming out from his eye on 03.12.2007 and when he contacted the petitioner, he was told that it was a minor problem, which could b
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e managed with medicines. Since he could not get any relief from the said medication, he was referred by the petitioner to one Dr. K. Ravi Kumar Reddy, who allegedly told him that his right eye had been damaged on account of the lens having not been properly inserted. A second surgery was performed but the complainant could not get vision in his right eye. He therefore, approached the concerned District Forum by way of a consumer complaint seeking compensation from the petitioner.
2. The complaint was resisted by the petitioner who inter-alia alleged that the complainant himself was negligent in taking care of his right eye since he had resumed his business activities on the very next date of the procedure. It was also alleged in the written version filed by the complainant that being from the same caste and on humanitarian grounds, he had paid a sum of Rs.95,000/- to the complainant who had executed a document dated 31.12.2007, receiving the said amount in full and final settlement of his claim.
3. The District Forum having allowed the complaint, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, the petitioner is before this Commission.
4. Before proceeding with this revision petition, it may be noted that this is the second round of litigation before this Commission. In the first round of litigation, the appeal preferred by the petitioner against the order of the District Forum had been allowed by the State Commission but the order passed by the State Commission was set aside by this Commission in a revision petition filed by the complainant and the matter was remitted back to the State Commission which thereafter, dismissed the appeal which it had earlier allowed.
5. A perusal of the reply filed by the petitioner before the District Forum shows that in para 7 of the written version, he expressly alleged that being from the same caste and having regard to the advice of the elders in the caste, he had paid a sum of Rs.95,000/-, on 31.12.2007, to the complainant, on humanitarian grounds. The complainant had executed a document dated 31.12.2007 acknowledging the said payment in full and final settlement of his claim. A copy of the said document dated 31.12.2007 was also filed before the District Forum. Despite the above referred specific averment made in the written version filed by the petitioner, the complainant did not seek to file any rejoinder to the said written version controverting the above referred allegations with respect to payment of Rs.95,000/- and execution of the document dated 31.12.2007. Even during the pendency of complaint before the District Forum, no affidavit was filed by the complainant denying having receiving a sum of Rs.95,000/- from the petitioner and having executed the document dated 31.12.2007. In these circumstances, when the complainant, despite having an opportunity to deny the aforesaid allegations and document, chose not to do so, the said averment shall be deemed to have been admitted by the complainant and consequently, it must necessarily be held that he had taken a sum of Rs.95,000/- from the petitioner on 31.12.2007 in full and final settlement of his claim and had thereafter, executed the document which the petitioner had filed before the District Forum.
6. The learned counsel for the complainant submits that the said document is a forged document and does not bear the signature of the complainant. The statement coming at the stage of revision petition and having not been made on oath before the District Forum, cannot be executed. The learned counsel for the complainant states that the document was denied by the complainant before the District Forum during the course of arguments. However, even at that stage, no affidavit was filed by the complainant denying payment of Rs.95,000/- or execution of the document dated 31.12.2007. Had the complainant denied the receipt of Rs.95,000/- and execution of the document dated 31.12.2007, the petitioner would have got an opportunity to lead evidence to prove that the document dated 31.12.2007 was actually signed by the complainant and that he had actually received the aforesaid payment. Therefore, I am unable to accept the denial made by the complainant at the stage of arguments before the District Forum. On this ground alone, the consumer complaint is liable to be dismissed.
7. Coming to the merits of the case, it is complainant’s own case that when he consulted Dr. K. Ravi Kumar Reddy to whom he was referred by Dr. D. Ramesh himself, Dr. K. Ravi Kumar Reddy told him that his right eye was damaged on account of the lens having not been properly inserted. However, neither an affidavit of Dr. K. Ravi Kumar Reddy was filed nor was he produced as a witness to prove the said allegation made by the complainant. The onus was upon the complainant to prove the alleged negligence on the part of the petitioner in performing the surgery in his right eye. Not only he failed to produce Dr. K. Ravi Kumar Reddy who examined his eyes soon after the surgery by the petitioner had been performed, he also did not examine any other doctor to prove any negligence on the part of the petitioner in performance of surgery of his right eye. Thus, he failed to discharge the burden placed on him.
It is not as if no complication without negligence of the doctor can develop in a case of implant of an IOL. The medical literature produced by the petitioner before the State Commission does show the complications, though not common, are possible in such a procedure. I am unable to accept the contention that it was for the petitioner to prove that the complication had happened without any negligence on his part. The onus to prove negligence will always be on the person who makes such an allegation. This is equally true even in a case of alleged medical negligence. It is for this reason that the failure to examine Dr. K. Ravi Kumar Reddy assumes significance.
8. For the reasons stated hereinabove, the impugned orders cannot be sustained and the same are hereby set aside.
The revision petition filed by the petitioner, being devoid of any merits, is hereby dismissed with no order as to costs.