NAJRUL SEIKHversusDR. SUMIT BANERJEE & ANR.

          [2024] 2 S.C.R. 1065 : 2024 INSC 184

                      Najrul Seikh
                           v.
                Dr. Sumit Banerjee & Anr.
                (Civil Appeal No. 2877 of 2024)
                       22 February 2024
  [Vikram Nath and Satish Chandra Sharma, JJ.]

                    Issue for Consideration
Whether the State Commission and the National Commission
were justified in exonerating the respondents-doctors of all the
charges of misconduct/medical negligence in performing the
cataract surgery of complainant’s son leading to complete loss of
vision in his right eye.

                           Headnotes
Consumer Protection Act, 1986 – s. 12 – Deficiency in service
– Medical negligence – Complainant’s 13 year old son lost
complete vision in his right eye following an allegedly negligent
cataract surgery by the respondents-doctors – District forum
allowed the claim for compensation – However, the State
Commission and the National Commission set aside the order
exonerating the respondents of all the charges of misconduct/
negligence – Correctness:
Held: 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 – Both the State Commission
and the National Commission ought to have examined the evidence
in totality, instead, they mechanically and exclusively relied upon
the Medical Council report and reiterated its findings without any
reference to the evidence of the doctor – Appellate forum was
tasked with the duty of undertaking a more thorough examination
of the evidence on record, which they failed – Specific findings
made by the District forum 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 – Through
the expert evidence of the doctor, a nexus was established between
the lapses in post-operative care and the development of loss of
vision after the operation, which remained uncontroverted – Holding
1066                                                         [2024] 2 S.C.R.

                      Digital Supreme Court Reports


     of the District forum is strengthened not only by the report of the
     Medical Council but also by the admission of the respondent No. 1
     itself that management and rehabilitation of traumatic cataract for
     a child is very difficult, unpredictable, and prone to complications
     – Furthermore, in cases of deficiency of medical services, duty
     of care does not end with surgery, thus, the finding of the District
     forum that there was a deficiency in the medical services provided
     by the respondents to the complainant’s son affirmed – Order of
     the State Commission and the National Commission set aside.
     [Paras 12-16]

                                List of Acts
     Consumer Protection Act, 1986.

                             List of Keywords
     Deficiency in service; Medical negligence; Compensation; Exonerating
     of the charges of misconduct/negligence; Medical Council report;
     Duty of care; Lapses in pre-operative and post-operative standards;
     Cataract surgery; Loss of vision; Deficiency of medical services.

                            Case Arising From
     CIVIL APPELLATE JURISDICTION: Civil Appeal No.2877 of 2024
     From the Judgment and Order dated 09.06.2016 of the National
     Consumer Disputes Redressal Commission, New Delhi in RP No.
     526 of 2016
                         Appearances for Parties
     Rupesh Kumar, Sr. Adv., Ms. Pankhuri Shrivastava, Ms. Neelam
     Sharma, Advs. for the Appellant.
     Partha Sil, Sanjiv Kr. Saxena, Chirag Joshi, Ms. Sayani Bhattacharya,
     Abhiraj Chaudhary, Advs. for the Respondents.
                Judgment / Order of the Supreme Court

                                   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
[2024] 2 S.C.R.                                                      1067

                Najrul Seikh v. Dr. Sumit Banerjee & Anr.


     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
     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.
1068                                                        [2024] 2 S.C.R.

                     Digital Supreme Court Reports


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 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:
          “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,
[2024] 2 S.C.R.                                                             1069

                Najrul Seikh v. Dr. Sumit Banerjee & Anr.


           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 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.
1070                                                        [2024] 2 S.C.R.

                     Digital Supreme Court Reports


          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 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 contributory negligence attributed to the
    Appellant is entirely unsubstantiated by expert opinion.
[2024] 2 S.C.R.                                                         1071

                Najrul Seikh v. Dr. Sumit Banerjee & Anr.


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
    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.


     Headnotes prepared by: Nidhi Jain                     Result of the case:
                                                              Appeal allowed.