* HIGH COURT OF DELHI : NEW DELHI
RFA No.236/2000
% Judgment reserved on:5th May, 2009
Judgment delivered on:26th May, 2009
Shri Jagat Narain Sharma
S/o. Late Pt. Ram Prasad,
C/o. Mrs. Savita Sharma
Social Worker
sPresent Address: 358/IJ
Savitri Gali, Behind Post Office,
Mandawali, Delhi-92 .... Appellant
Through: Ms. Mala Goel, Adv as
Amicus-Curie.
Versus.
1. Union of India
Through Secretary
Ministry of Health,
New Delhi.
2. Ram Manohar Lohia Hospital,
Through its Superintendent
New Delhhi.
3. Dr. O.N. Krishna,
Head of Eye Department,
Ram Manohar Lohia Hospital,
New Delhi ..... Respondents
Through : Mr. Rajinder Nischal, Adv.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
RFA No.236/2000 Page 1 of 26
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B. GUPTA, J.
By way of present appeal, appellant has
challenged the judgment and decree dated 6th August,
1999, passed by Additional District Judge, Tis Hazari,
Delhi, vide which suit of the appellant for
compensation for Rs.2 lacs was dismissed.
2. Facts in brief are that appellant, now aged about
88 years old, filed the suit as an indigent person. On
19th October, 1987, he was admitted in Dr. Ram
Manohar Lohia Hospital, for his eye-treatment and was
operated upon for extraction of cataract of his right
eye. He was discharged on 28th October, 1987. The
operation was performed in presence and under
supervision of respondent No.3, being head of eye-
department. Appellant was asked to visit hospital after
one week for the removal of the stitches. Respondents
RFA No.236/2000 Page 2 of 26
No.2 and 3, further asked the appellant to come again
for the removal of the remaining stitches.
3. When appellant’s right eye was operated upon, he
complained to respondent No.3 and other junior
doctors, who removed the stitches, that in the course
of a fortnight he felt severe irritation in his eye as
there was excessive bleeding and whole eye-ball was
covered with blood and he had suffered great mental
loss, agony etc. When nothing was heard, he
contacted respondent No.3. Thereafter, he was sent to
Dr. Sharma who told him that a slit has been formed in
the retina due to non removal of the stitches
completely and vitreous disorder has developed and
for this reason no lense was fitted in his eye.
4. Treatment of appellant continued vide treatment
cards dated 22.9.88, 27.10.88, 26.4.89, 18.12.90,
6.2.90, 31.1.91, 30.10.91 and 31-3/1.4.91. Due to
negligence on the part of the respondents, the eye of
the appellant got damaged. Then he approached Dr.
Rajinder Prashad Hospital under All India Institute of
RFA No.236/2000 Page 3 of 26
Medical Sciences. He went there on 30.10.87 and
remained under its treatment upto 1991. Doctors at
Dr. Rajinder Prashad Hospital, informed him, that on
account of negligence on the part of the respondents
No.2 and 3, as the operation was done wrongly, the
whole of the eye-retina was formed and could not be
restored/cured in future. Appellant came to know
about this fact after 30.10.91. In 1991, respondents
refused to give him any treatment. Due to negligence
and inexperience of respondent No.3, appellant has
become blind and permanent disabled. Consequently,
respondents are liable to pay compensation to him.
Appellant took advice from various doctors of Sant
Parmanand Blind Mission Hospital also on 10.6.91.
They also informed that the right eye-ball has been
degenerated.
5. Appellant approached the consumer redressal
forum, too, which vide its judgment dated 12.2.93, had
come to the conclusion that the appellant was not a
RFA No.236/2000 Page 4 of 26
consumer. Appellant thus claimed compensation of
Rs.2 lacs in the present suit.
6. The suit was contested by the respondents.
Defence of respondents is that a routine intracapsulat
contract extraction was performed on the appellant on
19.10.87. His stitches were removed in stages, in two-
three weeks and he had to come for routine check-up.
As a matter of fact, retina is far away from Cornea and
such a thing, as a formation of slit is totally ruled out,
as per medical science. A simple and plain
conventional intraccapsular surgery was performed
and that, too, after obtaining written consent of the
appellant.
7. The alleged negligence on the part of the
respondents has been categorically denied. It is
explained that the appellant’s eye was operated upon
to the best capability of the respondents. Actually, the
appellant did not develop any hole in retina as a result
of the operation or because of the subsequent
treatment by the respondents. The hole, if any, could
RFA No.236/2000 Page 5 of 26
be the result of independent happening and is not
necessarily related to the surgery/operation done or
performed by the respondents. At the age of 75 years,
as in the case of the appellant, the holes are commonly
found in the unoperated eyes, hence, the hole of the
appellant has no co-relations with the operation
performed by the respondent. The appellant is not
visually handicapped. His visual status of vision 6/36
Rt. Eye and 6/9 Lt. eye, does not fall into the category
of visually handicapped (even minimal handicap).
8. It is further stated that the present suit is barred
by time. Appellant has tried to abuse the process of
the court. He is nuisance monger and the allegations
contained in the suit lack bonafides. The present suit
has been filed in order to harass the doctors with
oblique motive and to achieve unlawful gain and un-
earned income in the form of compensation.
9. It is contended by learned counsel for the
appellant that there was sufficient evidence on the
record before the trial court which suggests gross
RFA No.236/2000 Page 6 of 26
negligence on the part of respondent No.3, which has
resulted in complete and incurable damage to the
appellant’s eye. It is also clear from the treatment
chart of Dr. Rajender Prasad Hospital and All India
Institute of Medical Science, that operation was
performed by respondent No.3 on the appellant in a
negligence manner, which caused incurable damage to
the appellant’s eye.
10. It is also contended that when respondent No.3
came to know about the damage caused by his wrong
operation, he refused to treat the appellant any
further. Such refusal clearly indicates the guilt on the
part of respondent No.3. Damage to the appellant’s
eye could be caused only due to wrong operation as
was opined by the doctors of other hospitals and not
due to over age as was pleaded by respondent No.3
during cross-examination.
11. In support of its contention learned counsel for
the appellant cited Savita Garg v. Director, National
Heart institute (2004) 8 SCC 56, Achutrao H.
RFA No.236/2000 Page 7 of 26
Khodwa v. State of Maharashtra & Ors. AIR 1996
SC 2377, A.S. Mittal & Ors. v. State of U.P. & Ors.
AIR 1989 SC 1570.
12. On the other hand, it has been contended by
learned counsel for the respondents, that it was for the
appellant to prove that there was negligence on the
part of the doctor, who had performed the operation.
Appellant’s eye was operated upon to the best
capability of the doctors and he did not develop any
hole in retina as a result of the operation or because of
subsequent treatment. It was the appellant, who did
not visit the doctor after the operation, as advised by
Dr. Anil Tara, DW 2 and as such there is no negligence
on the part of the doctor.
13. On 3rd November, 2006, a Division Benchof this
Court, heard the matter at some length and thereafter
it passed the following order;
RFA No.236/2000 Page 8 of 26
“Having given our careful consideration
to the submissions made at the bar, we
are of the view that the question whether
loss of vitreous reported in the OPD card
marked Ex.PW1/2 was on account of the
negligence of the surgeon operating the
patient or for any other reason is a
matter that needs to be clarified.
Unfortunately, for the parties, there is no
clear evidence on that aspect of the
matter before us. It was in that view
suggested to counsel for the parties that
an eye specialist of repute could be
examined in terms of order 41 Rule 27 of
the Code of Civil Procedure to clarify
whether loss of vitreous could be on
account of the negligence of the surgeon
operating upon the patient or could also
be attributed to any other reason. In the
latter event percentage of cases in which
this could happen, could also be clarified
by the witness.Learned counsel for the parties agreed
that Dr. Rasik Vajpayee of Rajendra
Prashad Institute of Ophthalmic
Sciences, who is a specialist of repute,
could be examined as a witness. They
further agreed that since Dr. Vajpayee is
an extremely busy person, instead of
summoning him before the court to make
a statement, it would be more
appropriate if a Court Commissioner is
appointed to got his statement recorded.
In the circumstances, therefore, we
appoint Ms. Sidhi Arora, Advocate of this
Court as a Local Commissioner with the
direction that she shall record the
statement of Dr. Rasik Vajpayee ofRFA No.236/2000 Page 9 of 26
Rajendra Prashad Institute of Ophthalmic
Sciences, New Delhi. The Local
Commissioner shall have the following
aspects clarified from the witness.(1) Whether loss of vitreous
can be caused only because of
the negligence of the doctor
operating upon the patient for
removal of cataract?(2) If there are other reasons
apart from negligence that can
result in loss of vitreous, what
are those reasons and what is
the percentage of cases of such
losses attributable to those
reasons? In particular, whether
old age of vitreous in the course
of or even without an operation
for removal of cataract.(3) Whether non removal of
all the stitches put by the
surgeon in connection with the
cataract operation can result in
or contribute to the loss of eye
sight?Apart from eliciting the opinion
of the doctor on the above
aspects, the Local Commissioner
shall also ask questions to the
doctor suggested to her by
learned counsel for the parties
in the course of examination.”RFA No.236/2000 Page 10 of 26
14. In pursuance of the above order, Local
Commissioner appointed by this Court, recorded the
statement of Dr. Jeewan S. Tityal of Rajinder Prasad
Institute of Ophthalmic Sciences, New Delhi. The
questions put to this doctor in terms of Court’s order
along with deposition of the doctor, as are under;
“Q.1 Whether loss of vitreous can be
caused only because of the negligence of
the doctor operating upon the patient for
removal of cataract?Ans. No, vitreous loss does not happen
because of negligence. It is a known
complication of the cataract surgery.
Q.2 If there are other reasons apart
from negligence that can result in loss of
vitreous, what are those reasons and
what is the percentage of cases of such
losses attributable to those reasons? In
particular, whether old age of a patient is
in itself a reason for the loss of vitreous
in the course of or even without an
operation for removal of cataract.
Ans. There are many reasons for vitreous
loss during cataract surgery. Ocular diseases like subluxated lens, trauma, hyper mature cataract, previous history of glaucoma or retinal surgery. RFA No.236/2000 Page 11 of 26 Coexisting causes of non dilating pupil like senilemiosis(rigid) pseudaexfoliation
syndrome and several others. It is well known, that ICCE
(Intra capsular extractions)
has more incidence of vitreous
loss as compared to
conventional ECCE (Extra
capsula cataract extractions.).Old age perse is not
associated with vitreous loss
unless coexistent with hyper
mature cataract, glaucoma,
pre-existing posterior capsular
defect, posterior polar
cataract, which can increase
the risk of vitreous loss. Vitreous can be there in the
interior chamber without
surgery in cases of
spontaneous subluxtion/
dislocation of the lens in a
hyper mature cataract or
when there is history of troma.
Q.3 Whether non removal of all the
stitches put by the surgeon in connection
with the cataract operation can result in
or contribute to the loss of eye sight?
Ans. Non removal of stitches usually does
not cause loss of eye sight. Most ECCE
surgeries where sutures/stitches are
used are made of nylon which is inert
and is normally not removed until
indicated due to significant suture
induced astigmatism. If silk sutures are
used then they need to be removedRFA No.236/2000 Page 12 of 26
within 6 to 8 (six to eight) weeks. Suture
related infection can occur which can
lead to infection to the eye.
The questions suggested by Ms. Mala
Goel, Counsel for the appellant & put to
Dr. Jeewan S. Tatyal by me alongwith his
answers/deposition is an under;
Q.1 What is ICCE?Ans. ICCEE is a type of cataract surgery
where the lens is removed in toto
(complete). The newer surgeries
performed now a days are ECCE where
an opening is made in the anterior
capsule of the lens and the lens in
removed leaving the capsular bag intact.
Q. 2 What is vitreous loss?Ans. Vitreous is a Gel-like structure
which is located behind the lens. During
cataract surgery vitreous can pro lapse
into the anterior chamber if there is a
break in the posterior capsule or anterior
vitreous phase.Q.3 What it the effect of vitreous loss?
Ans. The major effect of vitreous loss are
seen if it is not managed effectively. In
the immediate post operative period
there can be increased inflammation,
glaucoma and corneal oedema. In the
long term patient can develop retinal
oedema and corneal decomposition.
These can cause decrease in vision. The
retinal oedema can also occur due to age
related changes also. The hproper
management of vitreous loss includes
complete removal of vitreous fromRFA No.236/2000 Page 13 of 26
anterior chamber by manual or
automated vitrectomy machines. The
prolonged use of anti inflammatory drugs
in the post operative period also helps.
Implantation of IOL (Intro Ocular Lens)
will depend upon adequate support of
posterior capsule for posterior chamber
IOL, or sufficiently normal anterior
chamber anatomy for an anterior
chamber IOL. The IOL implantation may
be avoided in the same sitting and the
patient can be reassessed after 6 to 8
weeks. A secondary IOL can then be
planted.Q.4. What is slit lamp?
Ans. Slit lamp is an apparatus need for
the examination of eyes under variable
magnification.Q.5 In which part of eye is cataract is
formed?Ans. Cataract is formed in the natural
crystalline lens.Q.6 Can removal of cataract by ICCE
cause vitreous loss?Ans. Yes, the highest incidence of
vitreous loss has been reported with
ICCE surgery as compared to ECCE
surgery.Q.7. Can cornea ulcer be caused by
vitreous loss?Ans. Vitreous loss perse will not be
associated with a corneal ulcer. Vitreous
when associated with a compromised
surgical wound or a compromisedRFA No.236/2000 Page 14 of 26
cornea, may be associated with a corneal
ulcer.”15. In the light of evidence recorded in this case as
well as statement of Dr. Jeewan S. Tityal, it is to be
seen as to whether there has been any negligence on
the part of respondent doctor, while performing the
operation of the eye of appellant or not.
16. Before entering into this venture, the first and
foremost question which arises for consideration is as
to which doctor has performed operation, on the eye of
the appellant and whether he is negligent.
17. It is appellant’s case throughout, that respondent
No.3, Dr. O.N. Krishan, performed his eye operation
and there has been gross negligence on part of
respondent No.3.
18. Appellant, in his evidence stated that, he was
operated upon for extraction of cataract of right eye on
19th October, 1987. His half eye stitches, were
RFA No.236/2000 Page 15 of 26
removed by Dr. Tarun and for remaining half, he wascalled after one week. He again went there after one
week. They told him that his eye was covered with
water and therefore it was not possible to remove the
stitches. Again he visited the hospital and approached
Dr. Krishna and Dr. Sharma, but his remaining stitches
were never removed. Dr. Sharma examined him fully
and informed that a hole had cropped up in the retina
and he was not rightly operated upon.
19. In cross-examination, appellant stated that Dr.
Krishan has prescribed few drops but he did not listen
to him properly and sent him out of this room, when he
went to meet him, after the discharge.
20. There is nothing on record to show that
respondent No.3, had ever conducted the operation of
the appellant’s eye. Respondent No.3 who appeared as
DW 1, in his cross-examination stated that he had not
conducted any operation in this case and he is neither
RFA No.236/2000 Page 16 of 26
personally concerned nor had any personal knowledgeabout this case.
21. On the other hand, it is DW 2, Dr. Anil Tara, who
has conducted the operation of the appellant in this
case, as in his examination-in-chief, DW 2 has
categorically stated that he had conducted the
operation of the appellant.
22. Since respondent No.3 is not at all connected with
the operation of the appellant, I fail to understand, as
to how he has been made as a party in this case. As
respondent No.3 has not conducted the operation of
appellant, no relief can be granted against him.
23. Apex Court has held in Udit Narain Singh
Malpaharia v. Addl. Member, Board of Revenue,
Bihar, [(1963) Supp 1 SCR 676], that there is a
distinction between “necessary party” and “proper
party”. In that case, the Court said;
“The law on the subject is well settled: It
is enough if we state the principle. A
necessary party is one without whom noRFA No.236/2000 Page 17 of 26
order can be made effectively; a proper
party is one in whose absence an effective
order can be made but whose presence is
necessary for a complete and final
decision on the question involved in the
proceeding.”24. Since respondent No.3 did not conduct the
operation of the appellant, so, no negligence can be
attributed to him.
25. Nevertheless, fact remains, that appellant was
operated upon for cataract of his right eye in Ram
Manohar Lal Hospital, and this fact has been admitted
by DW2, Dr. Anil Tara. DW 2 in his statement has also
stated that appellant’s ailment regarding muscular
degeneration is an age related process and has nothing
to do with the operation.
26. In cross-examination, he stated that as per
document Ex- DW 2/2, dated 19th October, 1987,
appellant was operated upon in their hospital and he
conducted the operation. He advised removal of
stitches on 18th November, 1987. He does not
RFA No.236/2000 Page 18 of 26
remember, whether he removed the stitches or not.He denied the suggestion that due to wrong operation
conducted by him, the stitches in the eye of the
appellant could not be removed completely, and his
right eye got damaged.
27. As per discharge slip, Ex. PW 1/1, the appellant
was advised for removal of stitches. There is no
material on record to show that after 1st November,
1987 till 27th October, 1988, appellant ever visited Dr.
Ram Manohar Lohia Hospital, where he was operated
upon. Only document placed on record, thereafter is
Ex- PW 1/2, the O.P.D. Card dated 22nd October, 1988.
So, as per medical evidence on record, after 1st
November, 1987, appellant did not visit Dr. Ram
Manohar Lal Hospital till 27th October, 1988. This fact
has been corroborated by respondent No.3 in his
evidence, who has stated, that appellant was operated
in the Eye Department on 19th October, 1987. He had
submitted a discharge slip dated 28th October, 1987
and subsequently, appellant came after one year for
RFA No.236/2000 Page 19 of 26
check-up while he was supposed to come after oneweek.
28. In the light of this evidence, it is to be seen as to
whether doctors of Dr. Ram Manohar Lal Hospital are
negligent or not, when admittedly, appellant after his
operation did not act as per advice of the doctor and
visited the hospital for treatment after one year. Since
there is a gap of one year, it cannot be said with
certainty, that problem in the eye of appellant which
occurred in October, 1988 is due to negligence act of
the doctors.
29. As per statement of Dr. Jeewan S. Tityal, it is
clear that vitreous loss does not happen due to
negligence. He has further stated that non-removal of
stitches usually does not cause any loss of eye sight
and if silk sutures are used, then they need to be
removed within six to eight weeks.
RFA No.236/2000 Page 20 of 26
30. There is nothing on record to show that appellant
went to Dr. Ram Manohar Lohia Hospital for removal
of the stitches as advised.
31. What is “negligence”, has been discussed by
Supreme Court in length at Jacob Mathew v. State of
Punjab and Anr. AIR 2005 SC 3180. It lays down that;
“The jurisprudential concept of
negligence defies any precise definition.
Eminent jurists and leading judgments
have assigned various meanings to
negligence. The concept as has been
acceptable to India jurisprudential
thought is well-stated in the Law of Torts,
Ratanlal & Dhirajlal (Twenty-fourth
Edition 2002, edited by Justice G.P.
Singh). It is stated (at p.441-442) –
“Negligence is the breach of a duty
caused by the omission to do something
which a reasonable man, guided by those
considerations which ordinarily regulate
the conduct of human affairs would do, or
doing something which a prudent and
reasonable man would not do. Actionable
negligence consists in the neglect of the
use of ordinary care or skill towards a
person to whom the defendant owes the
duty of observing ordinary care and skill,
by which neglect the plaintiff has suffered
injury to his person or property…The
definition involves three constituents of
negligence: (1) A legal duty to exercise
due care on the part of the partyRFA No.236/2000 Page 21 of 26
complained of towards the party
complaining the former’s conduct within
the scope of the duty; (2) breach of the
said duty; and (3) consequential damage.
Cause of action for negligence arises only
when damage occurs; for, damage is a
necessary ingredient of this tort.According to Charles worth & Percy
on Negligence (Tenth Edition, 2001), in
current forensic speech, negligence has
three meanings. They are: (i) a state of
mind, in which it is opposed to intention;(ii) careless conduct; and (iii) the breach
of duty to take care that is imposed by
either common or statute law. All three
meanings are applicable in different
circumstances but any one of them does
not necessarily exclude the other
meanings. (Para 1.01) The essential
components of negligence, as recognized,
are three: “duty”, “breach” and “resulting
damage”, that is to say:-1. the existence of a duty to take care,
which is owed by the defendant to the
complainant;2. the failure to attain that standard of
care, prescribed by the law, thereby
committing a breach of such duty; and3. damage, which is both causally
connected with such breach and
recognized by the law, has been suffered
by the complainant. (Para 1.23)RFA No.236/2000 Page 22 of 26
If the claimant satisfies the court on the
evidence that these three ingredients are
made out, the defendant should be held
liable in negligence.”32. Further held;
“The degree of skill and care required
by a medical practitioner is so stated in
Halsbury’s Laws of England (Fourth
Edition, Vol.30, Para 35):-“The practitioner must bring to
his task a reasonable degree of
skill and knowledge, and must
exercise a reasonable degree of
care. Neither the very highest nor
a very low degree of care and
competence, judged in the light of
the particular circumstances of
each case, is what the law
requires, and a person is not
liable in negligence because
someone else of greater skill and
knowledge would have prescribed
different treatment or operated in
a different way; nor is he guilty of
negligence if he has acted in
accordance with a practice
accepted as proper by a
responsible body of medical men
skilled in that particular art, even
though a body of adverse opinion
also existed among medical men.RFA No.236/2000 Page 23 of 26
Deviation from normal practice is
not necessarily evidence of
negligence. To establish liability
on that basis it must be shown (1)
that there is a usual and normal
practice; (2) that the defendant
has not adopted it; and (3) that
the course in fact adopted is one
no professional man of ordinary
skill would have taken had he
been acting with ordinary care.”
33. As per case of the appellant, he was discharged in
normal condition from the hospital after his eye
operation on 28th October, 1987 and thereafter, did not
visit the hospital for about one year. The fact that eye
of the appellant did not give him any trouble for a
period of about one year after his operation, goes on to
show that there was no problem in the eye of the
appellant during that period. Problem in the eye of the
appellant occurred after about one year after his
operation, and for this, the doctors who performed the
operation one year ago, cannot be held liable.
34. The case of the appellant is also that he had
undergone treatment in various other hospitals and
RFA No.236/2000 Page 24 of 26
doctors of other hospitals have attributed this
negligence to the doctors of Ram Manohar Lal
Hospital, who had performed the operation. In this
regard it would be fruitful to reproduce the findings
given by the trial court. The trial court observed that;
“As a matter of fact, his story
remains opague despite the
explanations given by him. The
evidence given by the plaintiff stands
rebutted by the statement of DW.2. It
is beyond the pale of my
comprehension as to why the
important witnesses such as the
doctors from the Rajinder Parsahd
Eye Centre, All India Institute of
Medical Sciences, Bhai PArmanand
Eye Hospital, Dr. Lohia, a private
practitioner in Shakarpur, had not
been produced in the dock. It may be
recalled that the plaintiff has clearly,
specifically and unequivocally stated
that the Dr. Lohia, Dr. Setrhi and
doctors from AIIMS has informed him
that the doctors of Ram Manohar
Lohia Hospital had wrongly
conducted the operation. The
evidence of the above said doctors
carrying infinite value would have
gone a long way to throw light on this
controversy. Absence of theseRFA No.236/2000 Page 25 of 26
doctors or medical evidence dampens
the ardour of the plaintiff’s case.”
35. So, from the entire material available on record, I
come to the conclusion, that appellant has failed to
prove, that there was any negligence on the part of the
doctors of Ram Manohar Lohia Hospital, who
performed eye operation of the appellant in 1987.
Since, there is no negligence on the part of any of the
doctors, various judgments cited by learned counsel
for the appellant, in support of its case are not
applicable to the facts of the present case.
36. Consequently, the appeal filed by the appellant is
not maintainable and the same is hereby dismissed.
37. Parties shall bear their own costs.
38. Trial court record be sent back.
26th May, 2009 V.B.GUPTA, J.
rb
RFA No.236/2000 Page 26 of 26