NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER CASE NO. 70 OF 2016
 
1. SAURABH SAINI
RESIDENT OF C-13, FIRST FLOOR, BALI NAGAR, NEAR RAJA GARDEN,
NEW DELHI - 110015.
...........Complainant(s)
Versus 
1. NEW DELHI CENTRE FOR SIGHT PRIVATE LIMITED & 7 ORS.
B-5/24, SAFDARJUNG ENCLAVE, OPPOSITE PARTY DEER PARK,
NEW DELHI
2. DR. MAHIPAL SINGH SACHDEV
E-16/12, VASANT VIHAR,
NEW DELHI - 110 057.
3. DR. HEMLATA GUPTA
B-5/24, SAFDARJUNG ENCALVE, OPPOSITE PARTY DEER PARK,
NEW DELHI
4. DR. AVNINDRA GUPTA
B-5/24, SAFDARJUNG ENCLAVE, OPPOSITE DEER PARK,
NEW DELHI.
5. DR. DINESH TALWAR
B-5/24, SAFDARJUNG ENCALVE, OPPOSITE DEER PARK,
NEW DELHI
6. STAAR SURGICAL COMPANY
1911 WALKER AVENUE, MONROVIA,
CA 91016
USA
7. STAAR SURGICAL AG INDIA
ANCHAL ANAND 104 SEA CREST-II, NE COSTA COFEE, SEVEN BUNGALOWS, ANDHERI (WEST)
MUMBAI
8. SANKARA NETHRALAYA
18 COLLEGE ROAD, NUNGAMBAKKAM,
CHENNAI - 600 006
TAMIL
9. SANKARA NETHRALAYA
18 COLLEGE ROAD, NUNGAMBAKKAM,
CHENNAI - 600 006
TAMIL
10. MEDICAL RESEARCH FOUNDATION
-
...........Opp.Party(s)

BEFORE: 
 HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER

For the Complainant :
Mr. Arvind Bhatt, Advocate with
Mr. Kuber Giri, Advocate
For the Opp.Party :
For the opposite parties nos.1to3 : Mr. Abhinav Bhalla, Advocate
For the opposite party no.4 : Mr. Vivek Singh, Advocate
For the opposite party no.5 : Mr. Dhruv Gupta, Advocate
For the opposite parties nos.6 & 7: Mr. Ashish Anand, Advocate with Mr. Amrit Singh, Advocate
For the opposite party no.8 : Ms. Vaishnavi Subrahmanyam,Advocate

Dated : 10 May 2018
ORDER

 

ORDER

1.         The complainant, Saurabh Saini (for short, ‘patient’) has filed this complaint under Section 12 of the Consumer Protection Act, 1986 alleging medical negligence and deficiency in service while performing lasik surgery on the eyes of complainant.  Due to complainant’s high myopic status and thin cornea, he underwent Torik Implantable Collamer Lens (TICL) at New Delhi Centre for Sight Pvt. Ltd./OP-1.  It was performed by Dr. Mahipal Singh Sachdev (OP-2).   After the surgery, the complainant suffered blurring of vision and infection in his right eye.  The complainant has filed the present complaint for alleged medical negligence and deficiency in service on the part of OP-1 to 7, for which the complainant suffered grave and irreparable injury, he claimed compensation of Rs. 6,03,20,000/- on the several grounds viz. expenses relating to treatment, hospitalisation, medicine, conveyance and special diet, attendant charges, loss of earnings and future earnings, future medical expenses, damages for pain, suffering and trauma as a consequence of criminal negligence and injuries, loss of amenities of life, compensation for disability, loss of marriage prospects etc.

2.         Show cause notice for pre-admission hearing was issued.  Heard the counsel for complainant and the OP-1, OP-4, OP-5 and OP-8.  OP-1 has filed I.A. No. 5385 of 2018 for submission of additional documents.  The learned counsel for the complainant submitted that the complainant, Saurabh Saini, underwent vision correction through lasik procedure, i.e TICL performed by OP-2 at OP-1/Centre on 20.11.2012 and 6.12.2012 in right and left eye respectively.   There was deficiency in service and many lapses in performing the TICL Surgery.  The surgery was unsuccessful.  The counsel further submitted that the behaviour of OP-2 and other doctors was bad and non-cooperative.  The doctors did not attend him properly.   OP-2 and his team of doctors failed to take timely precaution to avoid the spread of infection.  On 7.5.2014, the Complainant had to go to USA for examination of his eyes and even the doctors at USA said that nothing could be done to resolve the problem.  The counsel further narrated number of other allegations against OP-1/Centre; that UBM test was not done at initial stage; the white to white test (to check the diameter and Complainant’s eye lens) was wrongly done and doctors at OP-1/Hospital took a wrong measurement (size) of Implantable Collamer Lens.  The OP performed multiple surgeries instead of repositioning the small ICL.  The doctors at OP-1/Hospital should have replaced the same with larger size ICL.  The OP failed to diagnose recurring infection in the complainant’s eye and they failed to find out the cause and nature of the infection.  The infection was disclosed at a very late stage by the doctors at OP-1/Hospital.  If it would have been disclosed earlier, he would have taken second opinion.  After explantation of ICL, the Complainant started suffering from endophthalmitis, which was concealed by doctors at OP-1.  The OP-2 and other doctors at OP-1/Hospital negligently performed repeated surgeries on the eyes of the Complainant as a result of which, severe infection developed and caused complete loss of vision in the right eye.  Presently, Complainant’s right eye is filed with Silicon oil and he may require further surgery to refill the eye again.  The left eye lens is still rotating, therefore, the Complainant had poor vision also.  The complainant is facing serious flashes in his left eye due to Posterior Vitreous Detachment and pain in eye due to rotation of the lens. Multiple images are seen in his left eye, therefore, he is suffering from prolonged severe headache.  He is unable to focus on objects and words in books.  The doctors at OP-8/Sankara Nethralaya and USA have advised the complainant not to take further surgeries in the left eye as it may also get infected which may cause complete loss of vision.  The complainant is still under treatment from OP-8/Sankara Nethralaya. 

3.         The counsel further submitted that due to administration of steroid at OP-1/Hospital, his liver got affected and therefore, he has to get his liver tested every week.  The father of the complainant has to take leave from his office because the complainant was called almost daily for check-up, hence, he incurred huge expenditure on daily travelling to the hospital.  The complainant is not married and he may face problem in getting a good match for marriage.  The complainant’s life was ruined because of the negligence of OP-2, therefore, complainant and his parents are suffering from high mental tension, depression and misery.   The complainant had developed tendency to commit suicide as well.  The photocopy of prescription of Dr. Prashant Gopal, Psychiatrist is placed on record as (annexure 29).  Due to the negligence of doctors at OP-1/Hospital, the entire future and career of the complainant has been spoiled and all his dreams were also shattered.  The OP had failed to exercise high degree of care and skill/caution while treating the patient.  The complainant has to suffer his remaining life of almost 47 years from mental agony and hardship. His youth is lost. The marital prospects and happiness was lost, which cannot be compensated in terms of money.  Due to negligence and deficiency in service of OP-1 to 8, the complainant has to suffer grave hardship and irreparable injury, therefore, the complainant is entitled to a compensation of a sum of Rs.6,03,20,000/- along with interest @ 12% per annum.  

4.         The learned counsel for OP-1 submitted that I.A. 5385 of 2018 was filed for submission of additional documents, which are necessary to prove mala fide intention of complainant.  Learned counsel for the complainant resisted the application.  The counsel for OP-1 submitted that the complainant has not come before this Commission with clean hands and has deliberately concealed the vital facts and information.  To ascertain the truth about loss sustained by the complainant, OP-1 has carried out some discreet inquires and has come to know that after his lasik treatment at OP-1/hospital, he has completed his higher education and presently employed full time in the private sector.   To establish the fact, OP has produced compact disc. (CD) containing photographs and videos of the complainant at his workplace.  I have perused the CD and seen the contents.  The OP has also produced profile and other details from the Facebook to prove that the complainant was not facing any impediment in his personal or professional life.  In my opinion for effective adjudication of the complaint the application to be allowed. It is ordered accordingly and all  the  documents filed with the application are taken on record. 

5.         The learned counsel appearing for OPs 4 and 5 have made similar submissions on the point of maintainability of the complaint.   The counsel for OP- 4 and 5 requested for deletion of their name from array of the parties.  The learned counsel for OP-8/Sankara Nethralaya also submitted that no negligence was attributed to said opposite party, still they made necessary party to the complaint. 

6.         I have perused the entire pleadings, medical record, Compact Disc. and the print outs of Facebook profile etc. It Prima facie transpires from the record that the Complainant is hale and hearty having good social network.  He is attending day to day activities.  In my view, the complainant had made false submission to the effect that his and future has totally been ruined. Moreover, the complainant has not indicated the basis for claiming a staggering amount of Rs.6,03,20,000/- as compensation.  The prayer is not convincing and it appears to be highly inflated one.  The complainant has claimed that he consulted doctors at R. P. Centre of Ophthalmology  at  AIIMS, Shroff Eye Centre, Dr. Neeraj Sandhuja Centre,  however, he has not placed any prescription and test reports, issued by these centres.  He has also not produced the prescription and review/test reports from Dr. Browners, USA.  He also alleged that he suffered psychological problem (depression) and took treatment.  On perusal of psychiatric prescription, it is not proved that he was under depression.  In my prima facie view, Psychiatrist prescription produced by the complainant does not establish that he had suffered any depressive disorder.  I say no more, lest it may cause prejudice to either of the parties.

7.         The next question which requires consideration is as to whether the consumer fora/commission established under the Consumer Protection Act, 1986, is expected to entertain a complaint as a matter of course, without going into the merits of the claim made by the complainant in the complaint, even if it is ex facie exaggerated or unrealistic? 

8.         Having heard learned Counsel for   both the parties and gone through the averments and allegations in the complaint, I am convinced that the claim made by the complainant, to the tune of Rs.6,03,20,000/- is without any basis and to say the least, it is wild and hence this commission does not have jurisdiction to entertain the complaint.  In this context,  the following observation of this Commission in the case of Ramesh Kumar Sinhan Hans alias Ramesh Kumar (2012) NCDRC 158  are quite apposite.:

 “9. We are constrained to note that of-late there is an increased tendency on the part of the complainants to over-value their claim.  The reason why the complainants tend to do this are not difficult to understand.    The one reason for doing this may be that a very meagre fee as compared to the Court Fee payable in civil suit, is payable on complaints filed before the consumer fora.  The optimum fee payable for filing original complaint is Rs.5,000/- irrespective of the valuation of the claim made in the complaint.  Yet another reason may be is that when it comes to settlement of the claim, the complainant may have an edge and will be in better bargaining position to settle the claim on his own terms.  Such a tendency need to be curbed, lest the complaints of over-valued claim keep on mounting in the National Commission.  As per the recent statistics more than 200 complaints which are more than a decade old are pending for disposal.  Had proper examination of the complaint been done at the admission stage, pershaps the number of complants filed and peding could have been drastically reduced.  It is the experience of this Commission that more often than not in most of the complaints, compensation awarded by this Commission is not even a fraction of the claim made by the complainant.

           

9.         In another case of Nandita Bose vs. Ratanlal Nahata (1987) 3 SCC 705, the Hon’ble Supreme court has held as under:-

The principles which regulate the pecuniary jurisdiction of civil courts are well settled.  Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff valuation in his plaint determines the court in which it can be presented.   It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over – valuing or gross under-valuing a suit.  The court always has the jurisdiction to prevent the abuse of the process of law.  But the question whether she was entitled to claim mense profits or damages in respect of the period subsequent to February 1, 1995 could not have been disposed of at a preliminary stage even before the trial had commenced.  That question had to be decided at the conclusion of the trial along with other issues arising in the sit.  Having regard to some of the decisions on which reliance is placed by the appellant in the course of the appeal, we are of the view that the matter is not free from doubt.

 

10.       Considering the entirety of the facts in the instant case, the complainant claims have incurred expenditure on the treatment to the tune of few lakhs for medical treatment but, has preferred claim in respect thereof, to the tune of Rs.6,03,20,000/- which appears to be towards non-pecuniary damages.  The complainant has not placed anything on record about the break-up of his claim.  The compensation for medical negligence or deficiency in service in the treatment has to be commensurate with the resultant loss and injury to the patient or his heirs.  In my view, the unrealistic claim has been made only with view to confer pecuniary jurisdiction on this commission, which cannot be permitted.  

11.       Therefore, at this stage, without commenting on the merits of the complaint, lest it may cause prejudice to the parties, the  complaint is  dismissed for lack of pecuniary jurisdiction, with liberty to the complainant  to file a fresh complaint , before an appropriate fora except this Commission, if so advised.

 
......................
DR. S.M. KANTIKAR
PRESIDING MEMBER