1.       Appellant Dr. Mehatre Sudam Tulshiram original opponent No.2 has preferred this appeal against the judgment and order dated 25.6.2007 passed by District Forum, Jalna, by which the appellant is held liable for medical negligence and is directed to pay compensation of Rs.15,000/- along with cost of complaint of Rs.500/-.  Respondent No.1 is original complainant whereas respondent No.2 is org. opponent NO.1.

2.       The facts leading to the present appeal are as under.

That, respondent No.1/org.complainant was pregnant and feeling problem in  her abdomen, for which her husband took her to the Civil Hospital for check up. It was contended that her husband paid Rs.100/- vide receipt No.5228358 dated 22.11.2006 for her sonography test.  Accordingly, her U.S.G. test was done and it was opined that she had “ single live -1 U.F. of 27 weeks 6 days” and due date of delivery was given as 17.2.2007.

It was further contended that during her pregnancy period she had taken treatment from the hospital of Dr.Karwa, where on 14.1.2007 she was delivered and gave birth to twins i.e. one male child and one female child, out of which mail child was dead before delivery. It was contended by her that due to U.S.G. report given by the appellant/org.opponent No.2 she did not take much care and did not have further investigation.  But she was shocked to have given birth twins for which she had to suffer mental harassment and also had to spend Rs.10,700/- for her treatment in the hospital of Dr.Karwa.  She therefore alleged that appellant had acted negligently in giving incorrect test report and filed the complaint against appellant as well as respondent No.2 before District Forum, Jalna seeking direction to them to pay her Rs.2 lakhs for deficiency in service along with interest @ 18% p.a.

3.       Appellant as well as respondent No.2 i.e. original opponent No.1 & 2 appeared before the Forum and filed written version through which her claim was resisted. Appellant stated that he was working as a Medical Officer in Civil Hospital, Jalna from 23.3.2006. The appellant admitted that the complainant paid Rs.100/- for U.S.G. test and that he performed the said test on 24.11.2006 ( not on 22.11.2006 as stated by respondent NO.1) and reported “ one live foetus.  But he has denied all other allegations and claim of respondent No.1/org.complainant. It was contended by him that there are many pitfalls and limitations in U.S.G. examination such as quality of machine, position of foetus in uterus, age of foetus etc.  He averred that to avoid the missing of finding, it is generally recommended to have three such U.S.G. examinations through A.N.C. period of about 9 months 7 days. First being during the period 0 – 3 moths, when the foetuses are small and in floating position in amniotic fluid which facilitates  easy identification of their number. However in the instant case complainant had got their U.S.G. test in third trimester i.e. during the period of 7 to 9 months and that there being short space in the uterus and second foetus which was without head had occupied position behind normal foetus due to which he could not visualize the same. Hence he cannot be held responsible.  Appellant has also brought on record certain literature to establish that result of U.S.G. test are not always correct and hence one cannot be 100% sure about such test.

Appellant has further contended that due to his report regarding single live foetus, no harm can be caused such as mental harassment as well as monetary loss as second foetus was headless and was not going to survive.  With all these contentions appellant requested Forum below to quash and set aside the complaint.

4.       Respondent No.2 i.e. the then Civil Surgeon of the Civil Hospital had also filed a separate affidavit through which he had supported the contention by submitting that there was no negligence on the part of appellant or respondent No.2 as alleged by respondent No.1 i.e. original complainant.  He further contended that complaint being false and baseless be dismissed.

5.       District Forum after going through the papers and after hearing the parties has passed the impugned judgment and order by partly allowing appeal and held appellant as liable for compensation.

6.       We have perused the papers placed before us  and have also considered the oral arguments as advanced by learned counsel  Shri.A.R.Borulkar for appellant/original opponent No.2. There are two major points for our consideration and decision. 

(i)                 Does the respondent/org.complainant prove that the appellant acted negligently in conducting U.S.G. by giving opinion of one foetus instead of two foetuses?

(ii)              Does respondent No.1 prove that as a result of opinion of one foetus given by the appellant she had caused any monetary loss as alleged?

7.       As regards point of negligence,  respondent No.1 i.e. org. complainant`s only contention is that though there were two foetuses as revealed during second U.S.G. test as done by Dr.Saboo on 13.1.2007 and after her delivery on 14.1.2007 in the hospital of Dr.Karwa, appellant had given his report about only one foetus, due to which she was disturbed and shocked and she had to spend excess amount of Rs.10,700/- for her treatment which she had taken in the hospital of Dr.Karwa.

8.       However, as contended by the appellant there are many pitfalls and limitation in U.S.G. examination such as quality of U.S.G. test machine, position of foetus in uterus, age and certain anomalies in the foetus etc.  Hence we can not expect 100% accuracy in such test.  Appellant has produced on record an extract of “Singapur Medical Journal” regarding “prenatal test-ultrasound safety and accuracy”, in which it is clearly mentioned that any prenatal test of ultras, result are not always correct and it is never to be 100% sure about prenatal test report. It is also to be noted that another foetus which was detected in second U.S.G. examination done by Dr.Saboo on 13.01.2007 was without head and brain. The contention of appellant is that usually twins are identified by seeing images of two skulls.   But since another foetus had no skull, he missed the same and reported only one foetus, appears to be acceptable. 

9.       In this regard we rely on the views laid down by the Hon`ble Supreme Court regarding negligence by professionals including doctors, in “Jacob Mathew(Dr) –Vs- State of Punjab and another” , wherein it is held by the Hon`ble Supreme Court that, “professional may be held liable for negligence on one or two findings, either he was not possessed all the requisite skill which he professed to have possessed, or , he did not exercise with reasonable competence in the given case, the skill which he did possess”. By both these standards, the appellant cannot be charged with the charge of negligence. It is not the case of respondent/org.complainant that the appellant had not possessed the requisite degree or skill for U.S.G. test.  Secondly, it has not been proved that appellant did not exercise his skill with reasonable competence as it is generally expected that the result of U.S.G. test are not always correct.  Thus considering aforesaid point appellant cannot be held liable for negligence.

10.     Now, as regards second point, we do not find any reason for monetary loss due to misreporting about single foetus as against twins.  As per contention of the appellant, another foetus which was of male was died before delivery.  However, as contended by appellant as per certificate of Dr.Karwa that child died due to anencephaly i.e. child without head. Even as per second U.S.G. examination report dated 13.1.2007 by Dr.Saboo it is revealed that second foetus showed absence of head. The point to be considered is whether it was possible for complainant to take any advance precaution about second foetus before delivery, reply is certainly negative. Respondent No.1 i.e. complainant claimed that she could have taken proper care had the  appellant reported another foetus which was without head, is not acceptable.  In fact second U.S.G. test was done by Dr.Saboo on 13.1.2007 i.e. after about one month who had reported about another foetus without head.  The question is why complainant could not take any care in respect of second foetus. We are therefore of the view that due to missing in the report about another foetus by the appellant, cannot be taken as to have caused any harm or monetary loss to the respondent No.1 i.e. original complainant.  District Forum however has not gone into the details of these aspects and has erred in holding appellant as liable for compensation. We therefore do not find any substance in the present appeal and we have to quash and set aside the impugned judgment and order passed by the District Forum. Hence we pass the following order.

                                                O   R    D    E    R

1.     Appeal is allowed. 

2.     The judgment and order passed by District Forum is hereby quashed and set aside.

3.     Complaint stands dismissed.

4.     No order as to cost.

5.     Copies of the judgment be issued to both the parties.

Pronounced on 17.10.2012.