1. These are the cross-appeals against the same order dated 24/1/2019 passed by Additional District Consumer Commission, Nagpur in CC No. RBT/CC/13/85 wherein the complainant had claimed medical negligence on the part of OP Dr. Chimote. The learned District Commission partly allowed the complaint and directed the Opposite party Dr. Natchandra Chimote to pay to the complainants a compensation of Rs.3 lakh along with a litigation cost of Rs.10,000/-. Appeal No. A/19/95 is filed by Dr. N. Chimote whereas Appeal No. A/19/96 is filed by the original Complainants Mr. & Mrs. Jawade.
2. Brief facts for deciding these cross appeals are as follows.

            Mr. and Mrs. Jawade are residents of Hinganghat, District Wardha and they got married on 28/4/2009. Even after passing of one year from marriage, Mrs. Jawade did not conceive and hence they consulted Dr. Natchandra Chimote who runs Wanshdhara Clinic and Conception Centre at Nagpur. Dr. Chimote advised certain primary investigations of Mrs. Jawade. After examining reports of investigations, Dr. Chimote informed the couple that the level of male hormones in her have increased and hence her female Ovum formation was affected. The couple was advised the immediate treatment in the form of conducting a Laparoscopic examination.  But instead of a Laparoscopic examination, the doctor performed Hysteroscopy on her. The doctor informed the couple that Mrs. Jawade’s both fallopian tubes are damaged and closed and that was the reason why she could not conceive naturally. Further, the couple was advised to go for a test tube procedure which was the only procedure to have a child. The couple followed the advice and in the year 2010 was treated by Dr. Chimote. For the treatment, the couple stayed in Nagpur for 5 months. However, in spite of undergoing the treatment of embryo transfer, the same was unsuccessful. The doctor had advised at least three cycles. So the complainants went for a second cycle which was also unsuccessful and cost the couple Rs.5 lac. Before going for the third cycle, the couple approached another doctor namely Dr. Seema Mandhaniya at Hinganghat, who advised her to go for laparoscopy which was conducted by the same doctor and the report was that the fallopian tubes were normal and not damaged. Further, in the year 2012, Mrs. Jawade was conceived normally and on the 8th of September, 2012, she delivered a healthy baby girl. From the above situation, the complainant’s drawn the inference that Dr. Chimote had advised unnecessary test tube procedures and extracted money from the complainant couple. Hence they approached Additional District Consumer Commission, Nagpur, and filed a complaint bearing No. RBT/CC/13/85.

3.                Dr. Chimote defended the complaint by filing a written statement and evidence supporting his contentions. The said complaint was finally heard in the year 2019 and learned Additional District Consumer Commission, Nagpur partly allowed this complaint directing Dr. Chimote to pay the compensation of Rs.3 lac to the Complainants along with litigation cost of Rs.10,000/-. Aggrieved by the said order passed by the learned Additional Consumer Commission, Nagpur Dr. Chimote filed appeal no. A/19/95 with a prayer to set aside the impugned order whereas original Complainants Mr. and Mrs. Jawade filed appeal no. A/19/96 for enhancement of the compensation.
4.               We heard learned advocates of both the parties in the final hearing of these cross-appeals and went through the documents filed on record. Considering the rival contentions of both the parties and the submissions made before the Commission by learned advocates, and the scope of these appeals, the following points arise for our consideration and the reasoning for the same has been discussed hereinafter…
5. POINTS:

REASONS:

6.            Learned advocate for Dr. Chimote narrated the course of events and submitted that Dr. Chimote is experienced and a senior doctor having specialization in this field. Based on the examinations performed and specifically the findings in the hysteroscopy examination, depending upon the findings, he advised the test tube baby procedure IVF (Invitro Fertilization) and also advised three cycles of the same. The couple was also informed that there are chances of unsuccessful cycles and the first two cycles went unsuccessful and Mrs. Jawade could not get conceived. As per the learned advocate for Dr. Chimote, Mrs. Jawade was taking treatment for Tuberculosis which affected the fallopian tubes. Dr. Chimote conducted (drilling)? Procedure and during hysteroscopy found that the fallopian tubes were damaged. Further, the couple was explained all the details of the need for IVF (Invitro fertilization), and the choice was given to the patient. Based on this, the hysteroscopy procedure was performed. After the two cycles of IVF, the couple consulted another doctor without the knowledge of Dr. Chimote, who advised intra-Uterine Insemination. It was the contention of the complainants in the complaint that IUI should have been prescribed instead of a test tube procedure. Learned advocate for the appellant Dr. Chimote submitted that the learned Forum below has wrongly inferred the expert opinion given by the Expert Committee of Government Medical College, Nagpur in its report dated 17.7.2015. The report stated that generally infertility is treated as per various methods and if the age of the patient is elderly then the method of Invitro fertilization is used. According to the learned advocate for the appellant doctor in the present case, the couple was young and hence the Forum concluded that looking to the expert opinion, one can say that IVF should be the last resort when all other treatments are failed. Learned advocate for Dr. Chimote submitted that the order passed by the learned District Commission is not proper, just, and illegal. Hence he prayed for setting aside the impugned order as this case is not a case of medical negligence. In support of his contention, he referred to the following ruling…

1. Dr. M.Kochar Senior Consultant Obs.Gynae, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi .........V/s....... Ispita Seal Leisure Valley Apartment Society + 1,  reported in 2017 SCC Online NCDRC 1189 (Against the order dated 28/07/2011 in Complaint No.240/2001 of the State Commission Delhi).

This ruling is squarely not applicable in the instant case.

7. Learned advocate for original complainants Mr. and Mrs. Jawade invited our attention to the course of events and that after two unsuccessful cycles of IVF, the couple was frustrated and they consulted another doctor. Surprisingly, Mrs. Jawade conceived naturally in 2012 and in due course gave birth to a healthy baby girl. Thus, for a very young patient, who had hardly completed one year of marriage, Dr. Chimote undertook the last resort which is the test tube procedure and while undertaking this procedure the couple was wrongly informed that the fallopian tubes of Mrs. Jawade are damaged. However, this was proved wrong when Dr. Mandhaniya conducted IUI alongwith laparoscopic examination, and confirmed that the fallopian tubes were normal (patent). Finally, the natural conception confirmed the patency of fallopian tubes. Without resorting to advise for natural conception, Dr. Chimote advised and also went for IVF which is against the regular practice and procedures recommended in the medical literature. Hence the learned advocate for the original Complainants Jawade couple prayed for enhancement of the compensation in view of the huge expenditure suffered by the couple for unnecessary test tube procedures in addition to physical and mental harassment.
8.                  While replying to the submissions, the learned advocate for the original complainants, the advocate for Dr. Chimote, the original opposite party argued that the whole procedure was informed to the Jawade couple and their consent was obtained for the procedure. Further, since no marriage certificate was on record, the exact years of marriage were also not available. Also, consent of the patient-couple was already obtained, reference page. 189, the same was not disputed by the complainant. This fact was not considered by the District Forum.
9. In view of the above discussion, we have perused the record and the impugned order passed by the learned Additional District Consumer Forum. We have perused the expert opinion given by the Expert Committee of Govt. Medical College and Hospital, Nagpur, dated 17^th July 2015. According to this report, the committee was formed comprising of the Chairman, who is the medical superintendent of the hospital, and other 3 expert doctor members. After studying the documents, the committee gave an opinion in the local Marathi language and it is as follows,

“Generally initially, the case of Infertility is treated according to the causes of infertility and if the age of the patient is advanced, a minimum of 3 months treatment is necessary. If the treatment fails, then and only then In Vitro Fertilization is used for treatment.”

In the instant case, Dr. Chimote advised IVF (In Vitro Fertilization) at the first instance. No doubt the doctors are specialists in IVF, but advising the patients/couple on advanced technology in the first instance proves the unfair approach by the doctor, Dr. Chimote, to the treatment of the infertility patient.

10. After going through the order passed by the learned District Consumer Forum at Nagpur, it has identified the points to be decided properly. The reasoning given for every point is also proper. We are not inclined to disturb the well-reasoned order passed by the forum. Except that, in the appeal filed by the original complainant, we are allowing the appeal partly by granting a refund of Rs.1, 80,000/- that was treatment expenditure. We think it proper to direct the treating doctor to refund the treatment expenditure incurred by the complainant, appellant in appeal no. A/19/96. In view of this discussion, we hold that the order passed by the learned District Consumer Forum of Nagpur, is just, legal and proper. The answer to point no.1 is Affirmative.
11. We pass common order in both the appeals since both appeals are cross appeals arising out of the same judgment and order of learned District Forum, as follows.

COMMON ORDER

1. The Appeal no. A/19/95, filed by Dr. N. Chimote is hereby dismissed with costs quantified to Rs. 50,000/- to be paid by the appellant to the respondent within 2 months from the date of receipt of the order.
2. The Appeal no. A/19/96, filed by Shri. Ajay Jawade is partly allowed with costs quantified to Rs. 25, 000/- to be paid by the respondent to the appellant within 2 months from the date of receipt of the order. The order passed by the District Forum is modified, with directions to the respondent to refund the incurred treatment expenditure of Rs.1,80,000/-, along with a 9 % rate of interest per annum, from the date of payment i.e., 28^th November 2011, within 2 months from date of receipt of a copy of this order. The rest of the order passed by the District Forum is confirmed.
3. Failure to pay the above amounts will carry interest @ 12 % per annum till the realization of these amounts.

Copy of this order to be given to all the parties free of cost.