1. 1. 1. 1. 1. 1. 1. 1. 1. 1. CC. No. 231 of 14-09-2008
                              Decided on : 09-04-2009

Sarabjit Kaur alias Bholi W/o Harnam Singh, R/o Village Kahan Singh Wala, Tehsil Nathana, District Bathinda. ... Complainant
Versus

1. Dr. Amita Kataria, Kataria Nursing Home, The Mall, Bathinda.
2. The New India Assurance Company Limited, Red Cross Complex, The Mall, Bathinda, through its Branch Manager.
   ... opposite parties

Complaint under Section 12 of the Consumer Protection

1. Act, 1986.
   

QUORUM


Sh. Pritam Singh Dhanoa, President
Dr.Phulinder Preet, Member
Sh. Amarjeet Paul, Member

Present : Sh. Balkaran Singh Mahal, Advocate, counsel for the complainant.
Sh. J D Nayyar, Advocate, counsel for opposite party No. 1.
Sh. Sunder Gupta, Advocate, counsel for opposite parties No. 2.

O R D E R


SH. PRITAM SINGH DHANOA, PRESIDENT

1. This complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short called as 'Act') by Smt. Sarabjit Kaur alias Bholly against Dr. Amita Kataria and New India Assurance Co. Ltd., through its Branch Manager, Bathinda, for giving them direction to pay her a sum of Rs. 4,35,000/-, as compensation alongwith interest at the rate of 18 percent per annum. Briefly stated, the case of the complainant, may be described as under :-
   That on 8-07-2001, complainant accompanied by her husband approached opposite party No. 1, in her hospital for check-up and treatment of pain suffered by her on left side in the abdomen region. After checking the complainant, she was told by opposite party No. 1 that she is suffering pain due to fibroid uterus and advised her for admission in her hospital, known as Kataria Hospital, forthwith, failing which she warned the complainant that disease may assume shape of cancer. The opposite party No. 1, also gave assurance to complainant and her husband that she is quite competent Gynaecologist and Obstetrician, possessing skill and has requisite medical facilities, in her clinic. On the assurance, given by opposite party No. 1, complainant got herself admitted in her hospital on even date. After her admission, she was administered glucose and was given strong antibiotics and drugs, without subjecting her to any Laboratory or X-ray test or ultrasound, because of which her condition worsened. Thereafter, complainant was shifted to operation theatre by opposite party No. 1 for check-up, where she was injected anesthesia, because of which she became unconscious and opposite party No. 1, performed Hysterectomy operation in negligent manner and in the course of operation, removed her uterus and right side ovary on 08-07-2001 without her knowledge and consent and that of her husband. After she was shifted from operation theatre, she was told by her husband and relatives present there that her Hysterectomy operation has been done and uterus and right side ovary, have been removed and had they been not removed, then she might have lost her life. The complainant remained admitted in the hospital of opposite party No. 1, upto 15-07-2001. She also visited the hospital of opposite party No. 1 several times complaining pain after her discharge, but pain did not subside. However, the opposite party No. 1 referred her to Doctors posted in Mathura Dass Hospital, Usha Mission Hospital and Civil Hospital, Bathinda, but the complainant is still suffering from jaundice and pain on left side in her abdomen. The opposite party No. 1 charged a sum of Rs. 18,000/- from the complainant on account of fees, indoor charges and cost of medicines. The complainant came to know after inquiry that opposite party No. 1, is not competent to perform operations like Hysterectomy and is not qualified Gynaecologist and Obstetrician, as claimed by her and she does not even hold any Post Graduation Degree, but is playing with the lives of innocent patients. She is not conversant with medical science to perform major operations and to give anesthesia although she is mentioning herself to be specialist in Gynaecology and Obstetrics, in the posters affixed on the walls of her hospital. The opposite party No. 1 has also retained the requisite record regarding the treatment and operation of the complainant at the time of discharge with intention to hide her negligence and incompetence and her conduct amounts to professional misconduct and has performed the operation of the complainant ignoring the medical science and ethics.
2. The opposite party No. 1 had purchased Indemnity Policy No. 4036060100190/097 dated 24-07-2000 from opposite party No. 2, as disclosed by her, vide application dated 20-11-2001, as such, opposite party No. 2, has been impleaded, as being necessary party to the complaint.
3. The complainant has suffered physical and mental agony and has been paralyzed and has become permanently disabled because of which she cannot perform household work and maintain herself. She has spent a sum of Rs. 35,000/- for purchase of medicines and diet and fee paid to various other doctors including a sum of Rs. 18,000/- paid to opposite party No. 1, for operation. As such, both the opposite parties are jointly and severally liable to pay compensation to the complainant. Hence, this complaint.
4. On being put to notice, opposite party No. 1 filed written version resisting the complaint by taking preliminary objections; that it is not maintainable; that complainant has not approached this Forum with clean hands as she suppressed the material facts; that complaint is bad for non-joinder of necessary parties and the complainant has no locus standi and cause of action to file the complaint; that the complainant is not consumer under the answering opposite party and this Forum has no jurisdiction to entertain and try the complaint because the controversy can be adjudicated in just and proper manner by the Civil Court, after the parties are given opportunities; that the complaint being false and vexatious, deserves to be dismissed with compensatory costs. On merits, it is admitted that complainant visited her hospital on 08-07-2001 but in fact she visited there earlier also on 18-06-2001, 14-06-2001, 25-06-2001 and 30-06-2001, with complaint of pain and her operation was performed, after conducting all the requisite laboratory tests and ultrasound, as mentioned in the preliminary objections. It is also submitted that the complainant was admitted at 10.00 P.M. All pre-operation measures were taken, operation was performed in the afternoon and it was an elective operation. The complainant remained under treatment in Punjab Computerized Laboratory, Lehra Bazar, Rampura Phul, before she approached opposite party No. 1. It is further submitted that anesthesia was given by Dr. J.C. Garg, M.D. Anesthesia and Dr. S K Bansal, M.S. General Surgery, assisted the answering opposite party in performance of operation after taking written consent of the husband of the complainant. It is contended that Dr. S K Bansal is M S General Surgery, from PGI, Chandigarh, and has worked in DMC Hospital, Ludhiana, Mission Hospital, Ferozepur and has been in practice at Bathinda since 1974 whereas Dr. J C Garg, has worked in Ahemdabad Medical College and Hospital and remained posted as senior resident with PGI, Chandigarh and Charitable Hospital at Bias, for a period of 11 years. It is also submitted that during the operation, doctors in the interest of the life of the complainant, formed the opinion that her uterus alongwith right side ovary have to be removed and patient was discharged after successful operation on 15-07-2001, with recommendation for check up and taking a regular medicine. The complainant again approached opposite party No. 1 on 10-08-2001 and complaint of pain in Left Iliac fosse /left lower abdomen because of which ultrasound was advised in which it was revealed that left iliac region is complex. She was provided treatment and given anti- pyretic medicines. On 11-08-2001, she again approached the answering opposite party complaining pain, after which she was asked to seek advice of Dr. S K Bansal, operating surgeon, who after her examination ordered certain investigations including urine examination for pus culture and sensitivity and vaginal swab for culture sensitivity and prescribed medicines almost similar to those prescribed earlier by the answering opposite party. The complainant also got performed certain tests from K K Laboratory, in which no growth on the vaginal culture, was established and it was revealed that she does not suffer from any Gyane or urinary tract infections. Thereafter complainant never approached the answering opposite party but her father visited her hospital several times and threatened her to teach her lesson showing newspaper cutting of some other patient, after the answering opposite party refused to meet his illegal demand to pay money. It is submitted that treatment has been given to the complainant and her operation has been performed by the answering opposite party and other doctors to the best of their ability, experience and knowledge. It is denied that there was any deficiency in service on the part of the answering opposite party or that she does not possess requisite qualification on account of which, the complainant may claim any damage from her. It is also submitted that answering opposite party has secured Insurance cover from opposite party No. 2 in the interest of her patients, as such opposite party No. 2, is liable to pay compensation if this Forum comes to the conclusion that the complainant deserves to be compensated on any count. It is also submitted that the answering opposite party is qualified Gynaecologist and Obstetrician and has experience to perform Hysterectomy operations and has secured Post Graduation Diploma from Punjab University through Dayanand Medical College and Hospital, Ludhiana, after doing MBBS and is fully conversant with medical science and has not committed any negligence in treatment and operation of the complainant. It is denied that any action of the answering opposite party was not as per medical ethics or that she has not performed the operation of the complainant with due diligence. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the complaint, with special costs.
5. The opposite party No. 2 filed written version resisting the complaint taking preliminary objections; that the complaint is not maintainable and the complainant is not consumer, as such, she has no locus standi to file the complaint; that intricate questions of law and fact are involved in the case, as such, controversy cannot be adjudicated in summary manner; that the opposite party No. 1, has not sent intimation to opposite party No. 2, immediately after receiving the notice of filing of complaint from this Forum and has violated the terms and conditions of the policy because of omission to supply the record of the operation and indoor treatment of the complainant; that liability of answering opposite party under the policy, if any, is limited to the extent of Rs. 50,000/-; that complaint being vague, false and vexatious, is liable to be dismissed. On merits, the factum of issuance of policy, has not been disputed and it is submitted that opposite party No. 1, is competent, qualified and experienced doctor who is fully conversant with her profession and has done the treatment of the complainant to the best of her ability. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the complaint with costs.
6. On being called by this Forum, the counsel for the complainant tendered in evidence, her affidavit and affidavits of Malkiat Kaur, Harnam Singh, Sewa Singh, Surjit Singh, Numberdar and Gian Singh, Member Gram Panchayat and copies of documents Ex. C-1 to Ex. C-41 and closed her evidence. On the other hand, the counsel for opposite party No. 1, tendered in evidence her affidavit and the affidavits of Dr. S K Bansal, Dr. J C Garg, Dr. J Sidhu, Dr. Uma Bansal, Dr. Ajay Garg, Dr. Anil Kataria, Dr. J S Romana, Sh. Gurjit Singh, Mrs. Lakhbir Kaur and Miss Bimla and copies of documents Ex. R-1 to Ex. R-40 and closed her evidence whereas the counsel for opposite party No. 2, tendered in evidence affidavit of Sh. V K Batra and photocopy of Insurance policy and closed the evidence.
7. We have heard the learned counsel for the parties and gone through the oral and documentary evidence adduced on record by them carefully with their kind assistance.
8. At the out set, learned counsel for the complainant Sh. Balkaran Singh Mahal, Advocate, has submitted that opposite party No. 1 has admitted the factum of admission of the complainant in her hospital from 08-07-2001 to 15-07-2001, operation performed by her and treatment provided after operation. Learned counsel has further submitted that opposite party No. 1, does not possess requisite qualification, skill and experience nor she has adequate facilities for performance of Hysterectomy operation in her hospital but after creating scare in the mind of the complainant that pain suffered by her in abdomen region is due to fibroid uterus, which may take the shape of cancer, if there is delay in performance of operation takes place, performed the same on the date complainant approached her with complain of pain, without subjecting her to any laboratory or ultrasound tests. Learned counsel has argued that as the complainant was conscious, before operation, therefore, it was incumbent upon opposite party No. 1, to obtain her consent in writing, but she failed to do so and administered anesthesia. She secured the consent of her husband and removed her uterus and right side ovary although she suffered pain due to averse affect of strong anti-biotics and drugs given to her by opposite party No. 1. Learned counsel has further submitted that statement of the complainant to the extent of above said facts, is corroborating, by the affidavits of her mother, husband and those of independent witnesses, including a Numberdar and Member Gram Panchayat, whereas opposite party No. 1, has relied upon statement of interested witnesses, who are either her profession colleagues or patients. Learned counsel has further submitted that from the documents tendered in evidence by the complainant, it has been established that after operation, she was referred to Dr. S K Bansal by opposite party No. 1, because she was not in a position to deal with post operation complications herself. Learned counsel has further argued that complainant has been rendered permanently disabled because of which she is unable to perform household works and even to maintain herself. Learned counsel has further contended that complainant is still under treatment for disease of jaundice and pain in left side of her abdomen still persists, due to negligence and incompetency on the part of opposite party No. 1, in performance of her operation from which she could not be cured till date, inspite of her treatment in several other hospitals. Learned counsel has urged that opposite party No. 1, is liable to refund the complainant a sum of Rs. 18,000/- paid by her and to pay her a sum of Rs. 17,000/- paid by her to other doctors and for purchase of medicines, money spent on special diet and for various types of tests conducted as per her advice, after her operation. Learned counsel has further argued that life of complainant has become permanently disabled, as such, she is also entitled to seek compensation from the opposite parties in the sum of Rs. 4,00,000/- in addition to above said charges and costs, incurred by her for filing of instant complaint.
9. On the other hand, learned counsel for opposite party No. 1. Sh. J D Nayyar, Advocate, has submitted that opposite party No. 1, has tendered in evidence documentary proof of her qualification and experience and said fact is also corroborated by the affidavits of other doctors, tendered in evidence by her. Learned counsel has further submitted that as per evidence produced on record by complainant, operation of the complainant was not performed in emergency, but it was elective operation at her instance for which she herself opted, after her laboratory and ultrasound tests conducted prior to date of operation, for which it was established that she can be relieved of pain only if Hysterectomy operation was performed. Learned counsel has also drawn our attention to several documents showing that complainant has approached opposite party No. 1 with complain of pain on 18-06-2001 and 30-06-2001 and operation was performed by her and Dr. S K Bansal (M S General Surgery) on 08-07-2001 after administration of anesthesia by Dr. J C Garg M.D (Anesthesia) after it was revealed from various laboratory tests and report of ultrasound that she is suffering from Adenomyosis, leading to menorrhagia and dysmenorrhoea , back-ache and dyspareunis i.e. painful intercourse. Learned counsel has argued that in the course of operation of the complainant, the operating doctors including opposite party No. 1 had to take emergent decision to remove the right side ovary, in order to save the life of the complainant and consent for the operation had been given by her husband, who alone was in her attendance. Learned counsel has further submitted that opposite party No. 1, has tendered in evidence various texts contained in books and papers, to show that one ovary of a patient below age of 45 years, has to be conserved and the problem faced by the complainant after successful operation is not result of any negligence or carelessness in performance of the operation but due to other causes, independent thereof. Learned counsel has argued that even the doctors who checked the complainant and provided her medicines after operation have supported the case of opposite party No. 1, and contents of affidavits filed on behalf of the complainant are falsified by the affidavits of the doctors named above, who participated in operation and prescribed the treatment thereafter. Learned counsel has further submitted that complainant was referred by opposite party No. 1, to Dr. S K Bansal, for better opinion because he is senior to her and has participated in the operation and complainant has failed to bring on record any evidence to show that operating surgeons, including opposite party No. 1, were negligent and had removed her diseased uterus and ovary with some ulterior motive. Learned counsel has further contended that affidavits of independent witnesses have also been tendered about the operation conducted and treatment given by opposite party No. 1, in her hospital either to them or their close relative whereas persons whose affidavits have been produced by the complainant, have no personal knowledge and are related to her. Learned counsel has argued with full vehements that facts borne on record lead to only inference that complainant has presented the false version by concocting false story to satisfy the ego of her father, who felt hurt after opposite party No. 1, turned down his demand, for refund of money paid in the sum of Rs. 8500/- for the operation. Learned counsel has argued that instant complaint, being abuse of process of this Forum, is liable to fail and to be dismissed with special costs.
10. We find merit in the arguments advanced by the learned counsel for opposite party No. 1. Before embarking upon, other aspects of the case, we are taking the plea of the complainant that opposite party No. 1, performed her operation after creating scare in her mind on the date she approached her, for the first time, with complain of pain in her abdomen. As per her case, she approached opposite party No. 1, on 08-07-2001, with complain of left side of her abdomen and after her advice that pain is due to fibroid uterus and may turn cancerous, she performed her operation, on even date. The opposite party No. 1, has reiterated in her affidavit Ex. R-1, on solemn affirmation that complainant in fact approached her with complaint of pain in abdomen and excessive bleeding, during mensuration period on 18-06-2001 and then on 30-06-2001 and after examination, she recorded her history and advised various types of laboratory tests including ultrasound, on examination of which, she formed the opinion that her uterus is to be removed. In support of her plea, opposite party No. 1, has produced copies of prescription slips dated 18-06-2001 and 30-06-2001. She has also tendered in her evidence, copies of Hematology and Bio-Chemistry Reports and Serological Test and other documents Ex. R-17 to Ex. R-21, issued by Punjab Clinical Laboratory, Rampura Phul and report of E.C.G. and allergy dated 06-07-2001 Ex. R-22 and Ex. R-23, issued by Rajan Nursing Home, Rampura Phul. She has tendered affidavit of Dr. J S Romana, wherein he has stated that he performed the ultrasound of complainant on 30-06-2001. The complainant has not produced any evidence to establish that her above said tests prior to operation were not performed or that she did not approach, opposite party No. 1, prior to the date of her operation. In the absence of any evidence to the contrary, we express our inability to accede the submissions made by the learned counsel for the complainant that these documents have been forged by opposite party No. 1, to absolve herself of liability. Therefore, we find no substance in the plea of the complainant that her operation was performed by opposite party No. 1, on the date, she approached her for the first time with complain of pain in her abdomen or that she performed her operation without subjecting her to laboratory tests. It is not disputed that the operation of the complainant was in fact performed on 08-07-2001 and she was discharged from the hospital of opposite party No. 1, on 15-07-2001. The facts borne on record demonstrate that enough time was given to complainant, to decide for operation, by opposite party No. 1, after scrutinizing the laboratory tests and ultrasound report, got conducted by the complainant herself, from institutions of her choice. Since the complainant herself opted for the operation, as per advice given by opposite party No. 1, therefore, it cannot be accepted that she was kept in dark by her about need for performance of Hysterectomy operation and removal of uterus. The opposite party No. 1, has also tendered in evidence, a copy of consent letter dated 08-07-2001 Ex. R-24, executed by Sh. Harnam Singh, husband of the complainant, giving his consent for operation of his wife. It is not the case of the complainant that signatures of her husband, were secured on blank papers and consent letter, was fabricated subsequently thereon. It is a matter of common knowledge that generally personal consent of the patient for serious operations is seldom taken by the operating doctors, because due to fear, it creates in his/her mind. As such, liability cannot be fastened upon the opposite parties even if personal consent of the complainant was not secured, prior to her operation, before anesthesia was administered to her.
11. The version of the complainant that opposite party No. 1, does not possess requisite qualifications, experience and expertise, is also falsified by the copies of documents Ex. R-12 to Ex. R-14, including degree of Bachelor of Medicine and Surgery, Diploma in Gynaecology & Obstetrics, issued by Punjab University, Chandigarh and certificate of registration issued by Punjab Medical Council. She has also tendered certificate Ex. R-15, she even attended conference of Obstetrics & Gynae , organised by FOGSI, at Jallandhar on 18-04-1999. The affidavit of the complainant about her qualification and experience is corroborated by affidavit of Dr. S K Bansal Ex. R-2. He has also stated that he also participated the operation after spinal anesthesia was given by Dr. J C Garg and diseased uterus and right side ovary of the complainant had to be removed to save her life. He has also stated that decision of removal of diseased ovary of right side and to preserve ovary of left side taken in the process of operation and complications after the operation suffered by the complainant, have nothing to do, with her operation which remained successful. Even opposite party No. 1, has also tendered the affidavit of Dr. J C Garg, Ex. R-3, who has substantiated her plea in its entirety. As per medical science, such emergent decisions are taken in the course of operation by the operating surgeon, if disease is not diagnosed earlier. The opposite party No. 1, has also tendered copies of documents Ex. R-25 to Ex. R-27, pertaining to complete record, from the date of admission of the complainant and her discharge wherein complete details of operation and treatment prescribed to her have been given alongwith previous history in material particulars. As such, her conduct shows that, she has not made any attempt to withhold any record to conceal her omission or error, if any. She has also tendered in evidence affidavit of Dr. (Mrs.) J S Sidhu, Dr. (Mrs.) Uma Bansal, Dr. Anil Kataria, Ex. R-4, Ex. R-5 and Ex. R-7, wherein they have corroborated her version that conservation of one ovary is necessary and post operation complications complained by the complainant are not related to her operation. The opposite party No. 1, has also tendered Ex. R-32, showing that complainant approached her on 29-07-2001, after operation with complain of fever and chills and rigors and she prescribed medicines. The complainant has tendered in evidence prescription slip Ex. C-11 dated 11-08-2001, whereby she was referred by opposite party No. 1, to Dr. S K Bansal, who performed the operation alongwith her. Since the said doctor had participated in the operation of the complainant, therefore, her reference to him, showing above said symptoms is no proof of post operational complications due to operation. Moreover, Dr. S K Bansal, in his affidavit has ruled out such possibility. The complainant has tendered the report Ex. C-9, given by Dr. Ajay Garg, who in his affidavit Ex. R-6, has stated that opinion given by him about mass in left region and bowel mass, in his ultrasound report and question marks put by him against them, are based on suspicion as she was doubtful about right diagnosis. The complainant has also tendered report dated 30-08-2001, Ex. C-19/2, wherein Dr. J S Romana, has reported that there is cystic mass with internal echoes of the size of 43/48mm, in left ovary, which suggest of Hemorrhagic follicular cyst Lt. Ovary. The said doctor has also filed his affidavit Ex. R-10, that opinion given by him is general in nature. In the remaining documents, produced by the complainant, there is nothing on record , on the basis of which, it may be concluded that there was no need for operation and removal of uterus and ovary or for preservation of left side ovary.
12. The opposite party No. 1, has also tendered relevant pages of text books, written by various prominent foreign authors belonging to different countries Ex. R-37 to Ex. R-39, about Gynaecology & Obstetrics and problems faced by the women. As per their opinion, atleast one ovary has to be conserved in case of young woman because sometimes further child bearing is desired and 20% woman subjected to surgical operations, may develops symptoms of hypertension and arteriosclerosis. The symptoms told by the complainant to opposite party No. 1, after she approached her after operation, are quite distinct from those symptoms. In the absence of any evidence to the contrary, they cannot be said to be post operation complications. The opposite party No. 1, has also produced cutting of news article published in “The Tribune” Ex. R-40, in its edition dated 14-08-2002, wherein it is printed as under :-
    “Hysterectomy is the medical term for surgical removal of the uterus. Most hysterectomies are performed as a last resort to save a woman, from a number of problems, which most commonly include fibroids of the uterus, causing heavy bleeding, pelvic discomfort and pain. Endometriosis , uterine prolapse, pre-cancerous and conditions and 'cancer' is another problem in which case hysterectomy, is more or less considered a necessity. With reasons varying from patient to patient, many times ovaries and fallopian tubes are also removed, alongwith the uterus. Once uterus is separated from the body, the menstrual cycle comes to an abrupt end. Removal of ovaries, adds to a more severe type of hormonal imbalance, which invariably makes a woman experience certain short-term and long terms health upheavals. Hysterectomy performed during the reproductive life span acts as a surgical or enforced menopause. Though normal menopause is in itself an important milestone in a woman's life, it sudden and unnatural occurrence, makes the situation more eventful.”
13. The complainant has not examined any expert witness to establish that opposite party No. 1, was careless and negligent in performance of operation or has removed her uterus and right side ovary and has preserved left side ovary against medical norms. She has tendered in evidence affidavits of several persons Ex. C-2 to Ex. C-6, who are related to her by relationship or otherwise but their names are not mentioned in the complaint as the persons who approached opposite party No. 1, with the complainant, before operation. As such, the contents of their affidavits are not based on personal knowledge of the facts, stated therein. In the face of positive evidence, produced by the opposite party No. 1, including opinion of co-surgeons, anesthetist and other prominent doctors, in the town of Bathinda, much significance, cannot be placed on them to hold opposite party No. 1 guilty of any omission or commission in performance of her operation and her treatment.
14. The opposite party No 1 tendered in evidence affidavits of other patients or their relatives Ex. R-8, Ex. R-9 & Ex. R-11, about their satisfaction after treatment or operation, in her hospital. The names of those patients are found mentioned in the relevant pages of register maintained by opposite party No. 1, in her course of profession Ex. R-33. This documents also include the name of the complainant alongwith date of her admission and discharge after operation and amount of fee paid by her, in the sum of Rs. 8500/-. Even in receipt Ex. R-36, which mentions that complainant paid a sum of Rs. 8500/- on 15-07-2001. The opposite party No. 1, has also produced the relevant page of cash book maintained in her hospital Ex. R-36, containing entry regarding deposit of Rs. 8500/- by the complainant on account of fees. The complainant has not produced any evidence regarding more payment made to opposite party No. 1. As such, her plea that she made payment of Rs. 18,000/- to opposite prty No. 1, also does not carry any weight. She has not brought on record proof of payment made in the sum of Rs. 17,000/- to other doctors on account of fees and amount spent for medicines, tests and special diet. On the basis of evidence adduced on record, we are unable to accept the version of the complainant that there was any deficiency in service on the part of opposite party No. 1, for which compensation may be awarded to the complainant, merely because of complications faced by her after operation due to other reasons not connected with her treatment and operation in the hospital of opposite party No. 1. In 2008(1) CPR 364 (NC) S.C. Lehri Vs. Dr. Pawan Kumar and Another, wherein it has been held by the Hon'ble National Commission that it cannot be expected that every physician or surgeon is gifted with extra ordinary skills or they can perform miracles and what was expected of him is whether procedure adopted is acceptable to medical profession.
15. At this stage, the learned counsel for opposite party No. 2, Sh. Sunder Gupta, Advocate, has submitted that opposite party No. 1, has not supplied record of pre and post treatment and has not conveyed intimation about her admission and operation, as such, liability to pay compensation, cannot be fastened upon opposite party No. 2, on the basis of Insurance policy and counsel has urged that even if this Forum comes to the conclusion that the case is fit for award of compensation, then the liability of opposite party No. 2, is restricted to Rs.50,000/-, as per terms and conditions of the policy, as secured by opposite party No. 1.
16. Since the complainant has failed to make out case for award of compensation for any deficiency in service on the part of opposite party No. 1, therefore, this argument raised by the counsel for opposite party No. 2 above, has been rendered infrastructures
17. In the light of above discussion, we have come to the conclusion, that complaint filed by the complainant is bound to fail. Resultantly, we dismiss the same and leave the parties to bear their own costs.