BEFORE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CIRCUIT BENCH, RAJASTHAN, JAIPUR


APPEAL No. 1703/2003


Smt. Rekha W/o Shri Anil Kumar, R/o Kothi Gulzar Bagh, Bharatpur.

..Appellant-Complainant

VS


Raj Diagnostic Centre, through Shri Vinod Bansal, Opp: Old Hospital, Bharatpur.

..Respondent-Opposite Party


Before;

Mr. G.S. Hora, Presiding Member

Mr. Sikandar Punjabi, Member


Present:

Mr. Punit Sharma, counsel for the Appellant

Mr. Vipin Gupta, counsel for the Respondent


ORDER Dated:30/04/2009


PER Mr. G.S. HORA, PRESIDING MEMBER


This appeal arises out of the order passed on 14.8.2003 by the learned District Forum, Bharatpur whereby the complaint was dismissed.


The Complainant filed a complaint with this averment that she was pregnant and was advised for Sonography by a Gynaecologist Dr. G.C. Kapoor. On 9.7.1995, She got her Sonography done from Raj Diagnostic Centre, the report of which indicated that the Baby is dead. It was further stated that on the basis of such report, Dr. Kapoor suggested that the fetus should be removed for which he fixed 12.7.1995 as the date for this purpose. As the Complainant wanted to have second opinion, she got another Sonography done in General Hospital, Bharatpur. From this report, it was found that the Baby was healthy. Alleging deficiency in service by Raj Diagnostic Centre, the Complainant filed a complaint claiming a sum of Rs. 3,50,000/- as compensation. A reply was also filed by the Opposite Party and after hearing both the parties, the complaint was dismissed against which the present appeal is preferred.


The question for consideration is whether the report given by the Opposite Party was wrong and on the basis of this report, the Complainant is entitled to get compensation.

2


There is no dispute on this point that the second opinion was obtained by the Complainant by way of sonography report and as per the report given by Dr. Singhal, the Baby was found healthy. It is also borne out from the record that the Complainant delivered a healthy child. There is no dispute on the point that sonography was done by Raj Diagnostic Centre on 9.7.1995 and the report given was 'missed abortion'.


The medical literature in the form of Annexures A to F has been placed on record. The definition of 'missed abortion' has been given as under:


“A missed abortion is a non-viable pregnancy that is destined to mis-carry. If there is a fetus, it has no heart beat.”


The learned counsel for the Appellant strenuously argued that there was totally false report given by Doctor. The words 'missed abortion indicate that the child was dead. If the Complainant had not gone for the second opinion she would have gone for abortion and D&C. Earlier also in the year 1994, the same kind of report was given by the Opposite Party on the basis of which the D&C was done by Shri Digambar Hospsital.


The learned counsel for the Respondent submitted that as there was no heart beat of the fetus, the report of missed abortion was given. The learned counsel has also cited a judgement of the Hon'ble Supreme Court in 2009 (III) SCC 1 wherein it has been held that Doctor doing duty with reasonable care would not incur liability even if their treatment fails. It was also held that Courts and Consumer Fora are not experts in medical science and therefore they should not substitute their own views over that of specialisation. It was also observed that Consumer Fora or criminal courts concerned should first refer the matter to a competent Doctor or Committee of Doctors specialised in the relevant field and when such a Doctor or Committee reports that there is a prima-facie case of medical negligence only then notice to the Doctor or the Hospital should be issued.


We have considered the arguments advanced by both the sides.


In Text Book of Obstetrician written by Dr. D.C. Dutta (V) Edition at page 175, the terminology 'missed abortion' has been described as under:



3


“When the fetus is dead and retained inside the uterus for a variable period, it is called 'missed abortion.”


From the definition as given in the literature produced by the learned counsel for the Respondent and definition given by Dr. Dutta goes to show that the words 'missed abortion' are used when the fetus is found to be dead. So there are contradictory situations before us. One situation is that in the second sonography report, the child was found to be healthy and the Complainant also delivered a normal child and the other aspect of the matter is that the words 'missed abortion' has been used by the Opposite Party which indicate that the fetus was dead at the time of examination. The report in question also goes to show that at the time of test, gestation age was shown to be 8 weeks, 6 days and the literature produced also goes to show that in nearly 8 weeks the heart beat of the child can be felt easily. The learned counsel for the Respondent submitted that as there was no heart beat of the child, the report of missed abortion was given. We are not satisfied with the arguments of the learned counsel.


The report given by the Respondent is contrary to what had happened later on. Doctor should have been careful enough to give such a report. This report might have led to abortion and D&C. It was at the insistence of the Complainant that second opinion by way of sonography was obtained which saved the fetus to grow further. There is a satisfactory evidence on record to show that the Respondent was deficient in service by giving wrong report.


Consequently, the appeal filed by the Complainant deserves to be accepted and is accepted. While setting aside the impugned order of the learned District Forum, we direct the Respondent to pay to the Appellant-Complainant a sum of Rs. 25,000/- towards physical and mental agony within one month failing which the Respondent shall be liable to pay interest @ 9% per annum from the date of this order.


The Appellant-Complainant shall also be entitled to get Rs. 5,000/- as cost of litigation.



Member Presiding Member




Hiralal