2024 INSC 184 SLP (C) No. 17437 of 2018 Page 1 of 9

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). OF 2024

[Arising out of SLP (Civil) No(s). 17437 of 2018]

NAJRUL SEIKH …APPELLANT(S)

VERSUS

DR. SUMIT BANERJEE & ANR. …RESPONDENT(S)

O R D E R

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

preferred by the Appellant before the National Consumer

SLP (C) No. 17437 of 2018 Page 2 of 9

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.

SLP (C) No. 17437 of 2018 Page 3 of 9

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

SLP (C) No. 17437 of 2018 Page 4 of 9

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 the NCDRC and the SCDRC,

we find significant merit in the contention of the Learned

Counsel for the Appellant. At this stage, it would be appropriate

to refer to the findings of the DCDRC regarding the negligence

of the Respondents. The operative paragraph(s) of the order

passed by the DCDRC read as under:

SLP (C) No. 17437 of 2018 Page 5 of 9

“So, we are very much affirmed that

diagnosis of Disha Eye Hospital regarding

"traumatic cataract" was known to the O.P. No.1

before the operation. This O.P. No.l has admitted in

the last portion, of para-23 of the written version by

saying that 'from medical point of view it is well

established that management and rehabilitations of

traumatic cataract, specially in a child, is very

difficult, unpredictable and any complication may

happen at any moment and it cannot be ascertained

before hand. Unfortunately this type of

complication happened to the son of the

complainant.

If that be the position, why the doctor did not

take any post-operative care of traumatic cataract.

In this regard the expert doctor Anindya Gupta who

is the RMO-cum-Clinical Tutor department of

Ophthalmology, Burdwan Medical College and

Hospital has specifically stated that "prior to

operation skin test is done for determining any drug

allergy if at all". But no test of drug allergy was

advised in the prescriptions. Apart from that expert

doctor has stated that OT date was on 24.11.2006

but the medical card of the patient does not reflect

the treatment prior to 24.11.2006 except urine test

pending and there is nothing mention of next date of

review after 24.11.2006. It has further stated

normally a patient is checked on the next date of

operation if not discharged earlier. The expert

doctor has further stated that theoretically speaking

any check after 72 hours of the operation is

sufficient in a normal case during post-operative

period but the card shows that the next date of

checking is 1.12.2006 after (24.11.2006, date of

OT). The expert doctor further stated that on

6.12.2006 the vision rating, is not normal. It is

SLP (C) No. 17437 of 2018 Page 6 of 9

pertinent to point that the expert doctor has

specifically stated that "as a doctor one should take

care of all risk factor of the patient before

performing the operation". So, it is clear inspite of

knowing the fact of seriousness of the treatment i.e.

operation of traumatic cataract O.P. No.l doctor did

nothing on the medical point of view. So, we are

opined that it is not only the unfortunate of the

patient but it is the unfortunate of the society at

large that this type of unruly negligent doctor still

performing operation in the medical field,

particularly when he had no faith upon the medical

science and medical ethics and regulations. In this

regard the expert doctor has stoutly stated in the end

of his deposition that a doctor must always be

updated. If a doctor violates the code of medical

ethics and regulations it can be said to be

professional misconduct.

Apart from that, the expert did not stop of

saying against the treatment of this O.P. No.l but

stated "non-adherence to medical prescription,

post-operative trauma etc. are the contributory

factor for the loss of vision after operation. Extra

Capsular Surgery is the modern level of surgery and

risk factor may be less in case of Extra Capsular

Surgery compared to other method of surgery which

is available in all Eye Hospital. The O.P. No.l has

admitted in para No.20 of written version that he is

being a one of the partner of Megha Eye Centre,

which is well equipped and (modernized institution

with world class microscope for examination. If that

be so, what prompted the O.P. No.1 not to induct

surgery in the modern method i.e. Capsular

Surgery?, particularly when he was well aware

regarding the gravity of disease namely traumatic

cataract and also aware that on medical point of

SLP (C) No. 17437 of 2018 Page 7 of 9

view management and rehabilitation of traumatic

cataract specially in a child is very difficult,

unpredictable and any type of complication may

happen at any point of time which cannot be

ascertained before hand.”

It is evident that the DCDRC has made specific findings

regarding lapses in duty of care by Respondent No.1 vis a vis both

pre-operative and post-operative standards for conducting a

traumatic cataract surgery. More pertinently, through the

evidence of Dr. Gupta, a nexus was established between the

lapses in post-operative care (the delay in review, the abnormal

vision rating on 06.12.2006 which was left unchecked by

Respondent No. 1, failure to undertake extra capsular method of

surgery despite having the necessary equipment) and the

development of loss of vision after the operation. It must be re-

emphasized that the expert evidence of Dr. Gupta went entirely

uncontroverted due to the absence of cross-examination and the

failure of the Respondents to bring on record any other

contradictory expert evidence.

13. Despite the presence of evidence pointing towards

negligence of the Respondents, both the SCDRC and the

NCDRC failed to consider it and relied only on the report of the

Medical Council. On a perusal of the Medical Council report, it

appears that the Medical Council did not delve into the nuances

of pre-operative and post-operative care. Further, the finding of

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contributory negligence attributed to the Appellant is entirely

unsubstantiated by expert opinion.

14. Under these circumstances, both the SCDRC and the

NCDRC ought to have examined the evidence in totality,

especially since this plea was urged by the Counsel for the

Appellant in both the forums. Instead, both the forums have

mechanically and exclusively relied upon the Medical Council

report and reiterated its findings without any reference to the

evidence of Dr. Gupta. While the report of the Medical Council

can be relevant for determining deficiency of service before a

consumer forum, it cannot be determinative, especially when it

contradicts the evidentiary findings made by a consumer forum.

In these circumstances, the appellate forum is tasked with the

duty of undertaking a more thorough examination of the evidence

on record. On this failing alone, the orders of the SCDRC and

DCDRC deserve to be set aside.

15. As it stands today, the specific findings made by the

DCDRC regarding lapses in post-operative care by the

Respondents and the resultant development of Retinal

detachment remains unchallenged by the other evidence on

record. In fact, the holding of the DCDRC is strengthened not

only by the report of the Medical Council which states that

development of Retinal Detachment is not uncommon in cases of

blunt trauma as in the case of Irshad, but also by the admission

SLP (C) No. 17437 of 2018 Page 9 of 9

of the Respondent No. 1 itself that management and

rehabilitation of traumatic cataract for a child is very difficult,

unpredictable, and prone to complications. That being the case,

and in view of the established principle of law that in cases of

deficiency of medical services, duty of care does not end with

surgery, we have no hesitation in affirming the finding of the

DCDRC that there was a deficiency in the medical services

provided by the Respondents to the Appellant’s son.

16. In view of the aforesaid, the present appeal succeeds and

the order of the NCDRC and the SCDRC are set aside.

Accordingly, the Respondents are directed to comply with the

order of the DCDRC within one month from the date of this

order.

17. Resultantly, the appeal stands allowed.

18. Pending applications, if any, shall also stand disposed of.

……………………………………J.

[VIKRAM NATH]

……………………………………J.

[SATISH CHANDRA SHARMA ]

NEW DELHI

FEBRUARY 22, 2024