The instant case was started on the basis of an application filed by the complainants/petitioners under Section 12 of Consumer protection Act, 1986 which was registered as Consumer Case No. 45/15 in this Forum.

The fact of the case as revealed from the petition as well as from the evidence is that the petitioners/complainants are the permanent resident of village Nehalganj P.O.-Gunjaria, P.S.-Islampur, Dist.-Uttar Dinajpur. It is to be mentioned that petitioner No.2 is the w/o petitioner No.1. From the petition it is revealed that the petitioner No.2 became pregnant and she was under treatment of Dr. Himanshu Bisswas. Unfortunately Dr. Himanshu Biswas was transferred from Islampur. There after the petitioner was treated by Dr. N.C. Bhakta who is the O.P in this case. On 18-5-2015 the petitioner No.2 was medically checkup by Dr. N.C. Bhakta. On that day Dr. Bhakta told the petitioner that all the things are normal and advised them to visit again after one week with USG report. Thereafter on the basis of such advices of Dr. N. C. Bhakta who is the O.P in this case. Again the petitioner went to Dr. Bhakta on 31-5-2015 at about 4 pm with USG report. At that time Dr. Bhakta again checkup the petitioner No.2 Sabnur Begam and prescribed only medicines. At that time Dr. Bhakta advised her that after 4 or 5 days the petitioner No.2 will give birth in normal way. On that night the petitioner No.2 felt labor pain and she was admitted to Islampur Sub Divisional Hospital. Fortunately, at that time Dr. N. C. Bhakta was on duty and admitted the petitioner No.2 in the said hospital as indoor patient. At that time the petitioner No.2 was suffering unbearable pain on her abdomen. But inspite of request Dr. Bhakta did not examine/check up her. After several request of the petitioner on the mid night on that day Dr. Bhakta tried to give delivery by giving pressure upon the abdomen of the petitioner No.2. As a result of which the petitioner no.2 gave birth of a death female child. At that time the petitioner No.1 asked Dr. Bhakta about the delivery of death baby and   Dr. Bhakta replied that the baby died two days before in the womb of the petitioner No.2. But it is revealed from the evidence as well as from the petition of the complainant that petitioner No.2 felt moving of baby of her womb before few times. According to the case of the complainant that due to the latches and negligence and wrong treatments of Dr. N.C. Bhakta, the petitioner No.2 gave birth of a death baby. After the incident the petitioner No.2 was urgently shifted to Alam Hospital for her serious conditions. After proper treatment at Alam Hospital the petitioner No.2 got a new life. Due to the negligence of Dr. Bhakta the petitioners suffered irreparable loss and mental pain and agony. For which the petitioners filed the case before this Forum claiming compensations as prayed for. 

The petition has been contested by the O.P by filing written version denying all the material allegations as leveled against him contending inter alia that the case is not maintainable, the case is barred by law of limitation, the case is barred by the principle of estoppels, waiver and acquiescence and the case is bad for non joinder and miss joinder of necessary parties.

The definite defence case is that the O.P very honestly and attentively treated the complainant/petitioner No.2 but the death of the baby in the womb is in natural course which is beyond the control of the O.P.. The O.P prescribed the medicine and also advised the petitioner No.2 as per medical theories quite properly which was applicable as per situations and circumstances of the complainant/petitioner No.2 and there was no latches on the part of the O.P. Considering such facts and circumstances the petition is to be rejected.  

During trial the petitioner No.1 himself was examined as P.W.1 and cross examined and petitioner No.2 Sabnur Begam was examined as P.W.2 and she was cross examined. Another witness Nuruddin was examined as P.W.3 and cross examined. In this case the O.P filed the examination in chief but he was not examined before this Forum. So, the examination in chief filed by the O.P cannot be accepted as he did not face the cross examination. During trial the complainants/petitioners filed the document as per firisti.

                   Decision with reasons

The fact of the case is that the petitioner No.2 Sabnur Begam previously was under treatment of Dr. Himangshu Biswas but he was transferred from Islampur. Thereafter petitioner No.2 was treated by Dr. N.C.Bhakta .At that time Dr. Bhakta advised her within 4/5 days she will give birth in normal way. On the same night she felt labour pain and she was admitted to Islampur S.D. Hospital. At that time Dr. Bhakta was on duty. At the request of the petitioner Dr. Bhakta tried to give birth of the child giving pressure upon the abdomen of the petitioner No.2. As a result of which petitioner No.2 gave birth of a female child.

The main allegation of the petitioner is that due to the latches and negligence and wrong treatment by Dr.Bhakta she gave birth of a death child. Now it is the well settled principle of law that the complainant will prove his case that the death child was born due to the latches and negligence and wrong treatment of Dr. Bhakta. But in this case no evidence is forthcoming before this court that due to giving pressure upon the abdomen of petitioner No.2 in abnormal way the petitioner No.2 gave birth of a female child. It is fact that in the labour room there is no access to the general public, how the petitioner will collect the evidence.  It is fact that a labour room is not a place for general public but the complainant will prima-facie brings the evidence that there was any latches on the part of the doctor who is the O.P in this case. In this case we do not find any USG report that before admission to the hospital that the baby in the womb of the petitioner No.2 was alive. Moreover, in the cross examination of Sabnur Begam it is found that from 29.03.15  to 18.05.15 she was under treatment of Dr. Himangshu Biswas. From the cross examination we also found that no USG was done between admission of petitioner No.2  Sabnur Begam in the Islampur S.D. Hospital on 31.05.15 to date of discharge. So how the Forum will comes to conclusion that without any medical investigation that the baby in the mother womb was alive at the time of admission to the hospital. Mere evidence of the complainant/petitioner No.2 that she felt that the baby was moving in her womb is not believable without any medical examination. It is fact that giving birth of a death child is an unfortunate event. In this case Dr.Bhakta has not been examined though he filed the examination in chief. It is settled principle of law when a person is not facing cross examination before any Forum his evidence will not carry any value at all and it will be presumed that the O.P did not adduce any evidence. Previously it is stated that the complainant will prove his own case. Due to the weakness or latches of the O.P the complainant will not get any benefit. The Ld. Lawyer of the complainant has stated in his written argument that P.W.3 Nuruddin who has established the fact that there was latches on the part of the treatment by Doctor. But the said P.W.3 Nuruddin is not a medical expert how can he say that there was latches and negligence act on the part of the Dr. Bhakta.  The Ld. Lawyer of the complainant argued that Dr. Bhakta is not a Gynecologist but no document has not been produced to show that he is not a Gynecologist. Mere submission of the Ld. Lawyer to the effect that Dr. Bhakta is not a Gynecologist is not acceptable.  So on consideration the facts and circumstances it is found that the petitioners/complainants have failed to prove their case.   

C.F. Paid is correct.

Hence it is,

                                               O r d e r e d

That the case being No.C.C.45/15 be and the same is dismissed on contest but without any cost.

Let a copy of this order be supplied to the parties free of cost.