NIRAJ AWASTHI Vs. JAGDISH BHARTI

JUDGEMENT

(1.) MR. Justice B.N.P. Singh, Presiding Member-Findings of State Commission both on merit and also as to maintainability/continuance of appeal before State Commission notwithstanding death of claimant during proceeding and suit having abated and complaint barred by limitation, was assailed by petitioner in revision.

(2.) AFTER petitioner approached Hon'ble Apex Court in Civil Appeal No. 1437/2006, Hon'ble Apex Court disposed of civil appeal with a direction to National Commission to expedite hearing of revision and dispose of the matter.

(3.) SUCCINCTLY put, facts are that deceased Jagdish Bharti, a Journalist by profession, experiencing eye problem took consultation with Dr. M.L. Agarwal at Etah on 28.6.1992 who advised him to have consultation with a Doctor of Delhi or Agra. He was referred to Dr. Mahesh Sharma, who in his turn referred him to Dr. Neeraj Awasthy, the petitioner, with his recommendation. He eventually took consultation of Dr. Neeraj Awasthy on 8.9.1992 and on payment of prescribed fee, laser treatment was given to him on right eye. Laser treatment was provided on left eye also and patient was advised to report after three months. Since there was no improvement and he was gradually losing vision, he reported to Dr. Awasthy who advised him to go to doctors of AIIMS, New Delhi and also wrote a letter to Dr. H.K. Tiwari, Head of Department of Ophthalmology. He, however, on 4.1.1994, took consultation with Dr. S.P. Kumar, a Senior Consultant in Mool Chand Khairati Ram Hospital, New Delhi, who allegedly opined that for negligence and carelessness of the treating Doctor - Dr. Awasthy, while left side eye had totally got burnt, right eye too was damaged. No improvement, however, could be brought for want of complete treatment papers issued by Dr. Awasthy which he allegedly did not spare including Discharge Slip. Alleging deficiency, complaint came to be filed with District Forum, Etah on 3.6.1994. District Forum, Etah, however, on consideration of lack of territorial jurisdiction, directed return of the plaint to Sh. Jagdish Bharti, the Claimant, complaint being not maintainable before District Forum, Etah. The day the plaint was returned to the Claimant i.e. on 20.5.1995, it was filed before District Forum, Agra which had jurisdiction to adjudicate the issue. Since preliminary issue raised by opposite party for adjudication, before going into merit of case did not find favour with District Forum, order of District Forum was challenged before State Commission, which remitted matter to District Forum, Agra for consideration. District Forum, however, eventually on consideration of pleadings dismissed the complaint. Aforesaid finding of District Forum, however, was reversed by State Commission holding petitioner doctor liable for negligence in causing damage to the eyes of the deceased Jagdish Bharti and awarded compensation of Rs. 2,00,000 to be paid within a period of two months failure of which was to carry interest @ 9% p.a. Jagdish Bharti through LRs, is now in revision.