Quorum:

Sh.Amrinder Singh Sidhu, President.

Sh.Mohinder Singh Brar, Member.

Smt.Aparana Kundi, Member.

Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant  got married 9 years back, but she is issueless and the complainant  and her husband are extremely desired to have issue. Further alleges that on 24.05.2018 the complainant  came to Opposite Parties  for consulting her case and expenses thereof and the Opposite Party  assured  the complainant that she could also have issue by getting treatment from them and guarantedly and  surely, they will be blessed with issue otherwise, they can get their money back and in this regard, the Opposite Parties  told the total expenses amounting to Rs.2,50,000/- including consultation fee, medicine, lab tests etc for the while treatment and accordingly, on 29.05.2018 the complainant  and her husband came to Opposite Party  No.2 hospital and Opposite Party  No.2  took required samples as per the treatment and prescribed some medicines which were given by Opposite Party  No.2 and charged Rs.90,000/- from the complainant , but no receipt was issued. The complainant  again visited the Opposite Party  No.2  hospital on 08.06.2018  and Opposite Party  No.2  told the complainant  that they are giving medicines simply for cleaning and boosting the whole body system, but after taking medicines prescribed by 2 that they are giving medicines simply for cleaning and boosting the whole body system, but after taking medicines prescribed by 2, on 08.06.2018 the bleeding started from vagina. On this, the complainant  visited Opposite Party  No.2  on 11.06.2018, 20.06.2018 and 25.06.2018, the Opposite Party  No.2 prescribed and gave medicines, but bleedings continued. Opposite Party  No.2  got admitted the complainant  on 25.06.2018 and did process  of IVF and charged remaining amount of Rs.1,60,000/- and lateron the complainant  followed advice and prescribed medicines, after IVF process for the prescribed period till 19.07.2018. Even after following the prescribed  medicine post IVF bleeding continued for which the complainant  consulted Dr.Rama Sofat Hospital at Ludhiana on 27.07.2018 and showed her case history where the doctor  got Scan of complainant ‘s womb which was totally clear and reported IVF remit is negative. Said doctor Amit Sofat made it clear that medicine given  to the complainant  on 08.06.2018 was for abortion purpose meaning thereby the complainant  was pregnant, having conception and on this, he complainant  dreadfully surprised to know all this. The complainant  and her husband shocked and undergone mental and physical trauma and due to physical, mental tension and monetary loss the husband of the complainant  got paralyzed and now he is bed ridden for the rest of his life. Further alleges that there is negligence on the part of the Opposite Parties   as well as unfair trade practice. Lastly on 30.11.2018 the complainant  went to the hospital of Opposite Party  No.2  and requested her to give required treatment of IVF again on which Opposite Party  No.2  misbehaved and used filthy language for complainant. Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to refund the amount of Rs.2,50,000/- charged from the complainant  on account of treatment and Rs.15 lakhs on account of mental tension, damages unnecessary harassment or any other relief to which this District Consumer Commission may deem fit and proper be also granted.  Hence, the present complaint.

2.       On notice,  Opposite Parties No.1 and 2 appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and wrongful representation of the medical practices and application and is devoid of any merits whatsoever. Hence, the answering Opposite Parties denies each and every allegation made in the complaint under reply against the Opposite Parties unless admitted or commented therein. It appears that the present complaint has been filed to gain undue publicity and bring disrepute to a well known figure as a Doctor and hence, is liable to be dismissed qua Opposite Parties on   this ground alone that  present consumer complaint is not maintainable as medical opinion was NOT taken by this District Consumer Commission by the competent doctor or committee of doctors specialized in the field before issuing the notice to the answering Opposite Party or for that matter Opposite Parties. It is submitted that Hon’ble Supreme Court of India  in the judgment titled Martin D’ Souza vs. Mohd. Ishaq  (Reported inter alia AIR 2009 SC 249) dated 17.02.2009 held that “Whenever a complaint is received against a doctor or hospital by the Consumer Fora, then it should first refer the matter to a competent doctor or committee of doctors, specialized in the field and only on their report a prima facie case of medical negligence can be made out and a notice can be issued to the concerned doctor/hospital.” 

It is submitted that present complaint is liable to be thrown out on the said legal preposition; that the complaint under reply is liable to be dismissed qua Opposite Parties as Complainant has utterly failed to prove any negligence on the part of the Opposite Party. It is further submitted that there is no evidence documentary or otherwise which points out the medical error on the part of the Opposite Party is not provided the services to the said patient of the Complainant as per medical procedures. It is further submitted that mere on the basis of the bald averments in the body of the complaint no case is made out against the Opposite Party for any misdemeanor by the Opposite Party, and Complainant cannot seek any relief from this District Consumer Commission under the scheme of the of Consumer Protection Act, 1986 against the answering Opposite Party; that the complaint under reply is liable to be dismissed as there is no commission of deficiency in service by the answering Opposite Parties since there is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law for the time being in force or had been undertaken to be performed by answering Opposite Parties in pursuance of a contract or otherwise in relation to any service. It is submitted that no case of medical negligence is made out against the Opposite Party  which warrants the allowing of the present complaint in the favour of the Complainant and against the Opposite Party. It is submitted that in re Bhajan Lal Gupta vs. Mool Chand Kharati Ram Hospital, 2001 (1) CPJ 31, wherein Hon’ble National Consumer Disputes Redressal Commission held that one of the tests of medical negligence is that something which is required under medical practice to be done was not done or what was done was contra indicated. That is, in the case of medical negligence, a Doctor can be held responsible if something has not been done which he was duty bound to do or something has been done which he was duty bound to omit. It is submitted that in the present case the Opposite Parties has adopted the line of treatment which was required to be adopted, therefore the question of any wrong treatment as alleged by the Complainant against the Opposite Party does not arise at all; that the complaint under reply is not maintainable either on facts or in the eyes of law and is liable to be dismissed qua Opposite Parties in as much as the Complainant has not come before this District Consumer Commission with clean hands and has concealed vital and material facts from this District Consumer Commission. The complainant has presented an incorrect and wrong version of the facts and medical parlance, practices and procedure before this District Consumer Commission, thereby attempted to misguide & mislead this District Consumer Commission. That in the matter of Sagli Ram vs. General Manager, United India Insurance Co. Ltd., reported at I (1994) CPJ 444 the Hon’ble Punjab State Consumer Disputes Redressal Commission has held that :-

“7.       The rule of our jurisprudence has long been that those seeking relief in equitable or extra-ordinary jurisdiction( other than ordinary and the formal one at law) must do so with the utmost candour and without any covert or overt suppression of facts or making of any misleading averments.  In the light of the above on principle and precedent, it has necessary to be held that a consumer knocking at the door of the Redressal agencies under the Act for relief in a consumer dispute must do so with clean hands.

That the complaint under reply is not maintainable as There can not  be  any  medical  negligence,  if  doctors Perform their duties and exercise ordinary degree of, professional skill and competence. and Mere deviation from normal professional practice is not necessarily evidence of negligence.[Kusum  Sharma and others  v.  Batra Hospital  and  Medical  Research  Centre and  others, I(2010)  CPJ  29  (SC)]. The treating doctor of Opposite Party i.e. Dr. Vinesh Gupta is a well known medical practitioner (Obs & Gynae) and is a renowned  Infertility Specialist  and has done various successful such procedures in her long span of career. It is further submitted that said Doctor is a respectable and a law-abiding citizen and has always treated her patients with utmost due care and followed all the medical ethics in true spirit and has rendered the true service to humanity. Patient Gurmail Kaur wife of Harjinder Singh came to Opposite Party  No.2  on 06.04.2018 for treatment of secondary infertility of 9 years for IVF-ET treatment. That after informing the couple about the procedure and results of IVF-ET treatment which is 30-40% worldwide and with full consent of both the partners, treatment for test tube baby was started. That after preparing her fully for the procedure, 3 Embryo transfer was done on 26.06.2018. 13 cases were done in this batch & 7 of them conceived. Data of batch is attached herewith. So, the result was 54% which was much more than what was explained to the complainant but she unluckily failed to conceive. It is further submitted that charges taken were also explained to the patient before starting the procedure which were Rs.80,000/- cycle and these charges including everything in the package i.e.[Medicines for wanam stimulation, all the blood tests & Semen tests including Ultrasound [6-7 times/cycle] file charges, down regulation of patient, Embryology charges, Egg pick up and Embryo transfer, Donor eggs and stay in the Hospital for the above procedure. That it is further submitted that every procedure is potentially a risk and every patient is well informed in advance the consequences and the success of the said procedure. No procedure is 100% result. This fact is known to every educated person. Anatomy of body is not fixed there could be abnormal vessels malformed organs and failure of drugs and other things.  However, Patient is prime concern for us and hundreds of patients are witness to this. That in recent order / judgment Hon’ble state Consumer Disputes Redressal Commission Punjab at Chandigarh (FA/917 OF 2012) finds that  “When in these type of cases, the success rate is just 25 to 40 % then it is not possible that IVF system will be 100% correct. What was best available with the Opposite Parties that was done and in case of failure the Ops cannot be held responsible.”   

• That as per the recent research, Study and Medical literature says :-
• Age and IVF: In Vitro Fertilization Stats

SART's most recent data reports the live birth rate at:

• 40 43% for women under 35
• 33-36% for women 35-37
• 13-18% for women 40-44
• Unlikely for women over 44

CDC IVF Success Rates by Age

All numbers below are results from using fresh embryos from non donor eggs during the cycle.

CDC's most recent data answering the question, "What is the chance of having a term, normal birth weight and singleton live birth per IVF cycle?"

• 3% for women under 35
• 17% for women 35-37

CDC’s most recent data answering the question,”What is the chance of getting pregnant per ART cycle?”

• 3% for women under 35
• 32% for women 35-37
• 1% for women 38-40
• 4% for women over 40

CDC’s most recent data answering the question,” What is the chance of having a live birth per embryo transfer?”

• 5% for women under 35
• 4% for women 35-37
• 4% for women 38-40
• 5% for women over 40

• Pregnancy Rates by Age
• 7% for women 35-37
• 36% for women 38-40
• 8% for women over 40

The pregnancy rate is traditionally higher than the live birth rate since a percentage of pregnancies end in miscarriage or stillbirth.

success rates for IVF depend on a number of factors, including the reason for infertility, where you're having the procedure done, and your age. The CDC compiles national statistics for all assisted reproductive technology (ART) procedures performed in the U.S., including IVF, GIFT, and ZIFT, although IVF is by far the most common; it accounts for 99% of the procedures. The most recent report from 2009 found:

• Pregnancy was achieved in an average of 29.4% of all cycles (higher or lower depending on the age of the woman).
• The percentage of cycles that resulted in live births was 22.4% on average (higher or lower depending on the age of the woman).

Are There Other Issues With IVF to Consider?

A woman's age is a major factor in the success of IVF for any couple. For instance, a woman who is under age 35 and undergoes IVF has a 39.6% chance of having a

baby, while a woman over age 40 has an 11.5% chance.

On merits, Opposite Parties No.1 and 2 took up almost the same and similar pleas as taken up by them in the preliminary objections and it is,  therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.  

3.       Opposite Party No.3 appeared separately through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that  the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.3 and from the allegations in the complaint no deficiency in service is made out.  Moreover, as per the terms and conditions of the policy, the Opposite Parties No.1 and 2 have should have informed the Opposite Party No.3. Moreover, the Opposite Party No.3 is liable to indemnify the Opposite Parties No.1 and 2  if they have acted  with utmost care and  devotion to the medical profession and has treated the patient as per rules of the medical practice, so the complainant against answering Opposite Party is not maintainable and the same deserves dismissal. On merits, Opposite Party No.3 took up almost the same and similar plea as taken up by them in the preliminary objections   and hence, the complainant is liable to be dismissed.              

4.       In order to prove her case, the complainant has tendered into evidence her affidavit Ex.C1 alongwith affidavit of Harjinder Singh Ex.C2  alongwith copies of documents Ex.C3 to Ex.C10 and closed her evidence.

5.       On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 also tendered  into evidence affidavit of  Dr.Vinesh Gupta Ex.OP1,2/1 and copies of documents Ex.OP1,2/2 to Ex.OP1,2/30. Similarly, Opposite Party No.3 tendered into evidence the copy of document Ex.OP3/1 and Ex.OP3/2, alongwith  affidavit of  Sh.Jaswant Singh Dhaap Ex.OP3/3 and thereafter closed their respective evidence. 

6.       We have heard the ld.counsel for the parties and also gone through the documents placed on record.

7.       Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant  got married 9 years back, but she is issueless and the complainant  and her husband are extremely desired to have issue. Further contended that on 24.05.2018 the complainant  came to Opposite Parties  for consulting her case and expenses thereof and the Opposite Party  assured  the complainant that she could also have issue by getting treatment from them and guaranteedly and  surely, they will be blessed with issue otherwise, they can get their money back and in this regard, the Opposite Parties  told the total expenses amounting to Rs.2,50,000/- including consultation fee, medicine, lab tests etc for the while treatment and accordingly, on 29.05.2018 the complainant  and her husband came to Opposite Party  No.2 hospital and Opposite Party  No.2  took required samples as per the treatment and prescribed some medicines which were given by Opposite Party  No.2 and charged Rs.90,000/- from the complainant , but no receipt was issued. The complainant  again visited the Opposite Party  No.2  hospital on 08.06.2018  and Opposite Party  No.2  told the complainant  that they are giving medicines simply for cleaning and boosting the whole body system, but after taking medicines prescribed by 2 that they are giving medicines simply for cleaning and boosting the whole body system, but after taking medicines prescribed by 2, on 08.06.2018 the bleeding started from vagina. On this, the complainant  visited Opposite Party  No.2  on 11.06.2018, 20.06.2018 and 25.06.2018, the Opposite Party  No.2 prescribed and gave medicines, but bleedings continued. Opposite Party  No.2  got admitted the complainant  on 25.06.2018 and did process  of IVF and charged remaining amount of Rs.1,60,000/- and lateron the complainant  followed advice and prescribed medicines, after IVF process for the prescribed period till 19.07.2018. Even after following the prescribed  medicine post IVF bleeding continued for which the complainant  consulted Dr.Rama Sofat Hospital at Ludhiana on 27.07.2018 and showed her case history where the doctor  got Scan of complainant ‘s womb which was totally clear and reported IVF remit is negative. Said doctor Amit Sofat made it clear that medicine given  to the complainant  on 08.06.2018 was for abortion purpose meaning thereby the complainant  was pregnant, having conception and on this, he complainant  dreadfully surprised to know all this. The complainant  and her husband shocked and undergone mental and physical trauma and due to physical, mental tension and monetary loss the husband of the complainant  got paralysed and now he is bed ridden for the rest of his life. Further alleges that there is negligence on the part of the Opposite Parties   as well as unfair trade practice. Lastly on 30.11.2017 the complainant  went to the hospital of Opposite Party  No.2  and requested her to give required treatment of IVF again on which Opposite Party  No.2  misbehaved and used filthy language for complainant.

8.       On the other hand, ld.counsel for Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the complainant and contended that the present complaint has been filed to gain undue publicity and bring disrepute to a well known figure as a Doctor and hence, is liable to be dismissed qua Opposite Parties on   this ground alone that  present consumer complaint is not maintainable as medical opinion was NOT taken by this District Consumer Commission by the competent doctor or committee of doctors specialized in the field before issuing the notice to the answering Opposite Party or for that matter Opposite Parties. It is contended that Hon’ble Supreme Court of India  in the judgment titled Martin D’ Souza vs. Mohd. Ishaq  (Reported inter alia AIR 2009 SC 249) dated 17.02.2009 held that “Whenever a complaint is received against a doctor or hospital by the Consumer Fora, then it should first refer the matter to a competent doctor or committee of doctors, specialized in the field and only on their report a prima facie case of medical negligence can be made out and a notice can be issued to the concerned doctor/hospital.”  It is further contended that present complaint is liable to be thrown out on the said legal preposition; that the complaint under reply is liable to be dismissed qua Opposite Parties as Complainant has utterly failed to prove any negligence on the part of the Opposite Party. It is further submitted that there is no evidence documentary or otherwise which points out the medical error on the part of the Opposite Party is not provided the services to the said patient of the Complainant as per medical procedures. It is further submitted that mere on the basis of the bald averments in the body of the complaint no case is made out against the Opposite Party for any misdemeanor by the Opposite Party, and Complainant cannot seek any relief from this District Consumer Commission under the scheme of the of Consumer Protection Act, 1986 against the answering Opposite Party; that the complaint under reply is liable to be dismissed as there is no commission of deficiency in service by the answering Opposite Parties since there is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which was required to be maintained by or under any law for the time being in force or had been undertaken to be performed by answering Opposite Parties in pursuance of a contract or otherwise in relation to any service. It is submitted that no case of medical negligence is made out against the Opposite Party  which warrants the allowing of the present complaint in the favour of the Complainant and against the Opposite Party. It is submitted that in re Bhajan Lal Gupta vs. Mool Chand Kharati Ram Hospital, 2001 (1) CPJ 31, wherein Hon’ble National Consumer Disputes Redressal Commission held that one of the tests of medical negligence is that something which is required under medical practice to be done was not done or what was done was contra indicated. That is, in the case of medical negligence, a Doctor can be held responsible if something has not been done which he was duty bound to do or something has been done which he was duty bound to omit. It is further contended that in the present case the Opposite Parties has adopted the line of treatment which was required to be adopted, therefore the question of any wrong treatment as alleged by the Complainant against the Opposite Party does not arise at all; that the complaint under reply is not maintainable either on facts or in the eyes of law and is liable to be dismissed qua Opposite Parties in as much as the Complainant has not come before this District Consumer Commission with clean hands and has concealed vital and material facts from this District Consumer Commission. The complainant has presented an incorrect and wrong version of the facts and medical parlance, practices and procedure before this District Consumer Commission, thereby attempted to misguide & mislead this District Consumer Commission. That in the matter of Sagli Ram vs. General Manager, United India Insurance Co. Ltd., reported at I (1994) CPJ 444 the Hon’ble Punjab State Consumer Disputes Redressal Commission has held that :-

“7.       The rule of our jurisprudence has long been that those seeking relief in equitable or extra-ordinary jurisdiction( other than ordinary and the formal one at law) must do so with the utmost candour and without any covert or overt suppression of facts or making of any misleading averments.  In the light of the above on principle and precedent, it has necessary to be held that a consumer knocking at the door of the Redressal agencies under the Act for relief in a consumer dispute must do so with clean hands.

The complaint under reply is not maintainable as there can not  be  any  medical  negligence,  if  doctors Perform their duties and exercise ordinary degree of, professional skill and competence. and Mere deviation from normal professional practice is not necessarily evidence of negligence.[Kusum  Sharma and others  v.  Batra Hospital  and  Medical  Research  Centre and  others, I(2010)  CPJ  29  (SC)]. The treating doctor of Opposite Party i.e. Dr. Vinesh Gupta is a well known medical practitioner (Obs & Gynae) and is a renowned  Infertility Specialist  and has done various successful such procedures in her long span of career. It is further contended that said Doctor is a respectable and a law-abiding citizen and has always treated her patients with utmost due care and followed all the medical ethics in true spirit and has rendered the true service to humanity. Patient Gurmail Kaur wife of Harjinder Singh came to Opposite Party  No.2  on 06.04.2018 for for treatment of secondary infertility of 9 years for IVF-ET treatment. That after informing the couple about the procedure and results of IVF-ET treatment which is 30-40% worldwide and with full consent of both the partners, treatment for test tube baby was started. That after preparing her fully for the procedure, 3 Embryo transfer was done on 26.06.2018. 13 cases were done in this batch & 7 of them conceived. Data of batch is attached herewith. So, the result was 54% which was much more than what was explained to the complainant but she unluckily failed to conceive. It is further submitted that charges taken were also explained to the patient before starting the procedure which were Rs.80,000/- cycle and these charges including everything in the package i.e.[Medicines for wanam stimulation, all the blood tests & Semen tests including Ultrasound  [6-7 times/cycle] file charges, down regulation of patient, Embryology charges, Egg pick up and Embryo transfer, Donor eggs and stay in the Hospital for the above procedure. That it is further submitted that every procedure is potentially a risk and every patient is well informed in advance the consequences and the success of the said procedure. No procedure is 100% result. This fact is known to every educated person. Anatomy of body is not fixed there could be abnormal vessels malformed organs and failure of drugs and other things.  However, Patient is prime concern for us and hundreds of patients are witness to this. That in recent order / judgment Hon’ble state Consumer Disputes Redressal Commission Punjab at Chandigarh (FA/917 OF 2012) finds that  “When in these type of cases, the success rate is just 25 to 40 % then it is not possible that IVF system will be 100% correct. What was best available with the Opposite Parties that was done and in case of failure the Ops cannot be held responsible.”   

• That as per the recent research, Study and Medical literature says :-
• Age and IVF: In Vitro Fertilization Stats

SART's most recent data reports the live birth rate at:

• 40 43% for women under 35
• 33-36% for women 35-37
• 13-18% for women 40-44
• Unlikely for women over 44

CDC IVF Success Rates by Age

All numbers below are results from using fresh embryos from non donor eggs during the cycle.

CDC's most recent data answering the question, "What is the chance of having a term, normal birth weight and singleton live birth per IVF cycle?"

• 3% for women under 35
• 17% for women 35-37

CDC’s most recent data answering the question,”What is the chance of getting pregnant per ART cycle?”

• 3% for women under 35
• 32% for women 35-37
• 1% for women 38-40
• 4% for women over 40

CDC’s most recent data answering the question,” What is the chance of having a live birth per embryo transfer?”

• 5% for women under 35
• 4% for women 35-37
• 4% for women 38-40
• 5% for women over 40

• Pregnancy Rates by Age
• 7% for women 35-37
• 36% for women 38-40
• 8% for women over 40

The pregnancy rate is traditionally higher than the live birth rate since a percentage of pregnancies end in miscarriage or stillbirth.

success rates for IVF depend on a number of factors, including the reason for infertility, where you're having the procedure done, and your age. The CDC compiles national statistics for all assisted reproductive technology (ART) procedures performed in the U.S., including IVF, GIFT, and ZIFT, although IVF is by far the most common; it accounts for 99% of the procedures. The most recent report from 2009 found:

• Pregnancy was achieved in an average of 29.4% of all cycles (higher or lower depending on the age of the woman).
• The percentage of cycles that resulted in live births was 22.4% on average (higher or lower depending on the age of the woman).

Are There Other Issues With IVF to Consider?

A woman's age is a major factor in the success of IVF for any couple. For instance, a woman who is under age 35 and undergoes IVF has a 39.6% chance of having a

baby, while a woman over age 40 has an 11.5% chance.

9.       Now the question arises as to whether Opposite Parties No.1 and 2 have been negligent in the instant case or not? In this regard, we shall have to see what is meant by negligence or medical negligence. Reference in this context can be made to the observations made in Jacob Matahew Vs. State of Punjab & Anr (2005) 6 SCC 1, decided on 05.08.2005 by Hon’ble Supreme Court of India as follows:-  

(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

10.     The question  of medical negligence also came up for hearing before  the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-

I.          Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

II.         Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

III.       The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

IV.       A medical practitioner would be liable only where his conduct fell below that of the standards      of   a  reasonably   competent practitioner in his field.

V.     In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.       The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII.      Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII.     It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the  patients have to be paramount for the medical professionals.

In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital &  Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-

"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"...(See page 122 placitum `B' of the report)

18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with  ordinary care (See page 122, placitum `A' of the report).”

11.     Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the couple in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 and 2 can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 and 2 during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 and 2 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 and 2. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered with that the complainant has miserably failed to prove any negligence on the part of Opposite Parties No.1 and 2 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 and 2. There is absolutely no force in the complaint and the same requires to be dismissed.

12.     Hence, keeping in view the facts and circumstances of the case as well as supra judgements of  Hon’ble Supreme Court of India, we find no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

13.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 05.01.2022.