ORDER
B.K. Taimni, Member
1. Appellants were the opposite parties before the State Commission where the respondent/complainant had filed a complaint alleging medical negligence on the part of the appellant Dr. Ponnusamy.
2. Very briefly the facts of the case are that the complainant, who was working as a peon in one of the Devasthanams at Palani, was having a fever, for which he approached the appellant who after more than one visit informed him that the fever was due to some eye defect and the appellant has the necessary facility for treatment. The first appellant took the complainant to his MPS Hospital and introduced him to the second appellant, who advised him Cataract Operation which was done after payment of necessary expenses and fees. After the operation was over, the respondent noticed oozing out of water from the left eye and there was also pain in the eye. It was the complainant’s case that he was not attended to properly and the doctor who operated upon him did not come when his presence was required. When the treatment for controlling the oozing out water from the eye was not coming under control, and when the bandage from his eye was removed on 10.9.1995 by the second appellant, by that time, the respondent/complainant had lost his vision. Still the water from the eye and pain were continuing. When these problems were subsisting or continuing, the second appellant referred the respondent/complainant to Arvind Hospital, where also he was told that nothing can be done to restore his eye after which he returned to Madurai and where Dr. Adhikesavan treated him and he was able to stop the flow of water and also the pain but that could not do anything regarding the loss of sight. It is in these circumstances, alleging medical negligence a complaint was filed before the State Commission, who after hearing the parties allowed the complaint and directed the appellants to pay Rs. 2,20,000 to the complainant along with cost of Rs. 1,000. Aggrieved by this order this Appeal has been filed before us.
3. We heard the learned Counsel for the parties as also perused the material on record. It is admitted position that the appellants had only filed their written version. No affidavit by way of evidence was filed nor they cross-examined the respondent/complainant who had filed his affidavit by way of evidence. The State Commission, in our view, rightly observed that the evidence brought by the complainant remained uncontroverted, for the simple reason that no affidavit by way of evidence was filed by the appellants before the State Commission whereas the allegations of medical negligence containing in the complaint were backed up by the complainant, by filing evidence by way of affidavit, which remained uncontroverted.
4. The learned Counsel for the appellant wants us to believe that the State Commission has committed error in not relying upon the contents of the written version. One has only to read Section 13 of the Consumer Protection Act, 1986 where it is clearly laid down that if in the written version the matter is contested, then the parties have to prove the case by evidence, in this case, by way of affidavits and the Consumer Fora also permits cross-examination in such cases. Admittedly, the complainant filed affidavit by way of evidence but the appellants/opposite parties neither filed any affidavit by way of evidence nor cross-examined the deponents. In such circumstances, keeping in view the position of law, the allegations of the complainant which remained uncontroverted shall prove his case in the absence of any counter affidavit filed by the respondent. In the light of above and in view of the material brought on record, we are satisfied that the finding of the State Commission on the point of medical negligence on the part of the appellants does not call for any interference.
5. However, we find that, the State Commission has not shown any grounds or basis on which they have arrived at a figure of Rs. 2,20,000 as compensation.
6. There is no disputing the fact that the complainant was working as a peon and in the year 1995 the salary of a peon could be assumed to be Rs. 2,000. As per the provisions of ‘Workmen’s Compensation Act’ for loss of one eye the 40% of the income is to be taken for purposes of compensation, which in this case will come to Rs. 9,600 per year and for 10 years Rs. 96,000 thus rounding it off, in our view, compensation of Rs. 1,00,000 for loss of eye shall be in order. Over and above of this the respondent/complainant shall also be entitled to Rs. 25,000 being the amounts spent on fees in the hospital, medical room, treatment at Keshawan Hospital, etc. Thus, in all the respondent/complainant shall be entitled to Rs. 1,25,000 along with cost of Rs. 1,000 awarded by the State Commission.
7. As per order of this Commission dated 8.8.2000 and 18.9.2000 Rs. 1,00,000 has already been paid by the appellant to the respondent/complainant. The appellant shall make payment of balance amount of Rs. 25,000 within a period of six weeks from the date of passing of this order along with cost of Rs. 1,000 failing which it shall carry interest @ 10% p. a.
8. The Appeal stands disposed of in above terms and the order of the State Commission stands modified accordingly.