ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 19.05.2008 passed by the District Forum, Dehradun in consumer complaint No. 265 of 2001. By the order impugned the District Forum has dismissed the consumer complaint.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Smt. Shikha Sheroan was referred to the opposite party by Dr. Mrs. Arti Luthra and opposite party had conducted a Ultrasound for Foetus on payment of Rs. 400/- as fees. On 13.07.2001, the opposite party gave his report suggesting an Ectopic Gestation and no pregnancy in uterus. Upon basis of opposite party findings, complainant was operated upon for Ectopic Gestation. But to her shock and horror after operating, she was informed by the surgeon that there was no Ectopic Gestation. Thereafter, another Ultrasound was conducted on 01.08.2001 whereby it was confirmed that the complainant was 8 week pregnant, but was informed and advised by the doctor that due to the aforesaid operation and medication and other drugs administered to her, there was a high risk of Foetus developing birth defects. Consequently medical termination of pregnancy was advised and carried out on 05.08.2001 by Dr. Asha Rawal. The opposite party had given a wrong report to the complainant which was resulted into not only pain, agony and unnecessary operation and medication, but also forced complainant to terminate her pregnancy. The aforesaid act of opposite party amounts to gross negligence and deficiency in service. A legal notice demanding the damages was given by the complainant to the opposite party through her counsel Sh. Rajeshwar Singh, Advocate by registered A.D. on 13.08.2001, which has been duly served and acknowledged by the opposite party vide his reply notice dated 23.08.2001, whereby he had falsely and wrongly tried to suggest that the said Ultrasound was done by him free of cost as such there was no question of damage, but the opposite party in his reply notice has admitted that he conducted the said test and also impliedly admitted that the finding given by him are incorrect and wrong. Despite notice, the opposite party has failed to pay the damages as well as tender unconditional apology. The cause of action arose in Dehradun and the complainant and opposite party are both resident of Dehradun and complaint is valued at Rs. 3.00 lacs, as damages claimed by the complainant. The opposite party No. 1 has claimed that any liability fixed upon him is payable by opposite party No. 2-The Oriental Insurance Company Ltd., who have issued an insurance cover to the opposite party No. 1, as such opposite party Nos. 1 & 2 are jointly and severally liable. The claimant has claimed Rs. 3.00 lacs for damages towards pain, suffering and medical expenses and forced M.T.P. alongwith cost of suit.
3. The opposite party No. 1-Dr. Rajeev Sikund has filed his written statement and has denied all the allegations of the complainant that the petitioner has purposely not disclosed the full facts. The petitioner paid only a sum of Rs. 400/- being the charges for an Ultrasound. However, other tests and procedures were also performed, which was wholly on a gratuitous basis, nothing extra was charged from the complainant. It is pertinent to point out that the report was only an impression and not a finding, furthermore it was only suggestive. The answering opposite party, while giving his report, was very much guided by the history given by the complainant. The answering opposite party is not aware of what happened after 13th July, 2001. It is not known as to who performed the alleged operation and under what circumstances. The complainant is herself to be blamed for her acts of omission and commission. Full and relevant details and the sequence of events after 13th July, 2001 has been purposely withheld with ulterior motives. The answering opposite party is not aware as to what happened after 13th July, 2001. If the medical termination of pregnancy was carried out, it was very much in consonance of the wishes of the complainant, with which she first went to Dr. Mrs. Arti Luthra. It is wrong to allege that the answering opposite party gave any wrong report. It is wrong to allege that the complainant suffered any pain, agony and unnecessary operation and medication on account of the report of the answering opposite party. It is also wrong to allege that the pregnancy had to be terminated medically on account of any act of the answering opposite party. It is wrong to allege that the answering opposite party is guilty of any negligence or deficiency in service. It is wrong to allege that the complainant has suffered any loss. The claim of damages of Rs. 3.00 lacs is not only unwarranted and unjustified, but also baseless. Notice sent by the complainant through her counsel Sh. Rajeshwar Singh, Advocate on 13th August, 2001 was based on incorrect facts. However, the same was replied vide notice dated 23rd August, 2001, which was duly served on the complainant. It is wrong to allege that the answering opposite party in reply dated 23rd August, 2001 has admitted that the findings given by him are incorrect and wrong. The complainant is unnecessarily twisting facts. She cannot be allowed to misinterpret the contents of the document. The complainant is guilty of concealment, misrepresentation and distortion of facts. No cause of action has arisen to the complainant to file the petition. The complaint is wholly misconceived and vexatious. The complainant has totally withheld the sequence of events. It has not been disclosed, as to who performed the operation, where was it performed and why and under what circumstances were it performed. It is also not known as to who advised the complainant to have the operation performed. The details of clinical history of the patient have also not been given. The District Forum has no jurisdiction to try the present complaint, as there is neither any cause of action nor the complaint falls within the purview of the provisions of the Consumer Protection Act. In additional pleas, the answering opposite party has pleaded that the complaint is not legally maintainable. It does not fall within the purview of the Consumer Protection Act. The complaint is based on incorrect facts. The complainant is not “consumer” within the meaning of the Consumer Protection Act, 1986. There was no deficiency in service, as alleged. The tests and procedures performed by the answering opposite party do not amount to service under the Consumer Protection Act. That on 13th July, 2001, the complainant came to the answering opposite party on the reference of her Gynaecologist Dr. Mrs. Arti Luthra alongwith her prescriptions and her history. The complainant stated that she had an amenorrhea of six weeks and six days and that suspecting pregnancy the complainant had herself conducted the pregnancy test with the help of a kit available in the market. Finding the result of the said test positive, the complainant contacted her Gynaecologist Dr. Mrs. Arti Luthra and requested her to terminate the pregnancy, as the complainant did not want the child. While the preparations for Medical Termination of Pregnancy (MTP) were on, the complainant stated that although she had tested positive for pregnancy, the complainant did not feel that she was pregnant. The complainant’s Gynaecologist performed an Ultrasound, but did not find any intrauterine pregnancy. Therefore, the Gynaecologist Dr. Mrs. Arti Luthra referred the complainant to the answering opposite party for second opinion. On 13th July, 2001 the answering opposite party conducted an Ultrasound on complainant and found no evidence of intrauterine pregnancy. The complainant being an educated lady and since she was giving her history with exact dates and was confident about them, the absence of an intrauterine pregnancy was a cause of some concern. Since it is known that at times the pregnancy test, as conducted by the complainant herself, is reported to have given false positive results, the answering opposite party got another pregnancy test done by a different method, for which no extra money was charged. The said test also showed positive. Therefore, after discussing the matter with the complainant and her husband, it was decided to conduct a trans-vaginal sonography, as it is known to detect pregnancy at an earlier stage. This too was done at no extra costs being charged from the complainant. The results of the sonography are already with the complainant. It was only suggestive of ectopic pregnancy. The answering opposite party formed his impression and gave his suggestive finding guided by the history disclosed by the complainant, which perhaps was not correctly stated. The answering opposite party had no reason to disbelieve the complainant. As stated above, the reports of answering opposite party were only suggestive in a case like that of complainant. The same ought to have been correlated with other clinical findings and investigations. Whether this was done or not before the alleged surgery is not within the knowledge of the answering opposite party and, therefore, he cannot be blamed for the consequences. It is wrong to allege that the alleged Medical Termination of Pregnancy had to be got done due to any wrong act or report of answering opposite party. The report of the answering opposite party cannot be called wrong. It is wrong to allege that the answering opposite party is guilty of gross negligence or deficiency in service. The answering opposite party has an unblemished career and for the first time he has come across such a patient whose conduct is totally uncalled for and against all norms and ethics of the society. The complainant cannot take advantage of her own wrongs. The answering opposite party cannot be blamed for the acts of omission and commission either on the part of the complainant or on the part of others. What was done by the answering opposite party was in good faith and to the best of his ability with a view to help the complainant. The answering opposite party has passed his M.B.B.S. from Armed Forces Medical College, Pune and completed his M.D. (Radio-diagnosis) from the same college in 1991. He served in the Armed Forces for about 13 years. He was a Classified Specialist (Senior Specialist) in the Armed Forces. He is also a consultant in the Himalayan Institute of Medical Sciences. The answering opposite party had took a policy from Oriental Insurance Company Ltd. against his legal liability to pay compensation. The remedy of the complainant, if any, is against the insurance company.
4. The opposite party No. 2-The Oriental Insurance Company Ltd. has filed its written statement and has pleaded that the contentions made in the consumer complaint are denied for want of knowledge. The consumer complaint filed by the complainant is not legally maintainable and she is not entitled to any amount either towards damages or cost.
5. The District Forum on an appreciation of the facts and circumstances of the case has dismissed the consumer complaint vide impugned order dated 19.05.2008 in the above manner. Aggrieved by the said order, the complainant-appellant has filed the present appeal.
6. Sh. Rajeshwar Singh, learned counsel for the appellant, Sh. J.M. Singhal, learned counsel for respondent No. 1 and Sh. M.K. Kohli, learned counsel for respondent No. 2 appeared. We have heard learned counsel for the parties and gone through the entire record of the District Forum and perused the material placed on record.
7. Learned counsel for the appellant has submitted before this Commission that the District Forum has failed to consider the fact that in this case, the doctor has not failed to detect pregnancy, but gave a confirmed report of Ectopic Gestation, i.e. mass outside uterus which was never there, as such this was case of gross negligence. The Forum below has not appreciated the evidence on merits and the facts gave a confirmed report of Ectopic Gestation. The appellant was referred to respondent No. 1 by Dr. Arti Luthra and respondent No. 1 had conducted an Ultra Sound for Foetus on payment of Rs. 400/- as fees. The respondent No. 1 gave his report suggesting an Ectopic Gestation and no sign of pregnancy. The appellant was operated at Saharanpur and on the basis of report of respondent No. 1 of Ectopic Gestation and no pregnancy, no precaution was taken by surgeon. But to her shock and horror after operation, she was informed by the surgeon that there was no Ectopic Gestation. There after another Ultra Sound was conducted on 04.08.2001 whereby it was confirmed that the appellant was eight weeks’ pregnant, but was informed and advised by the doctor that due to aforesaid operation and medication and other drugs administered to her there was a high risk of Foetus developing side effects and the child being deformed. Consequently medical termination of pregnancy was advised and carried out on 05.08.2001 by Dr. Asha Rawal. Respondent No. 1 had given a wrong report to the appellant, which has resulted into not only pain and agony and unnecessary lapse in medication, but also forced appellant to terminate her pregnancy. This act of respondent No. 1 amount to negligence and deficiency in service. The word suggestive when used in reference to action to be taken is only an opinion, but if used in reference to any existing fact, then it is confirmed position and there is no scope of doubt. Ultra Sound is the best and most authoritative test of determining pregnancy, which detects pregnancy within four weeks’, i.e. 25 days while in this case the test was done on six weeks’ two days. It is argued that despite having come to the findings that the report was wrong, the District Forum has rejected the claim.
8. Learned counsel for respondent No. 1 has submitted that a bare perusal of the report of respondent No. 1 (paper No. 21kha/2 in the Trial Court record and paper No. 27 in the appeal), the respondent No. 1 has clearly stated that the findings are “suggestive”. The word “suggest” has been defined therein to mean a slight trace or indication. Therefore, the word “suggestion” cannot be confused to mean confirmed. An impression suggestive of Ectopic Gestation is implied wherein a suspected pregnancy, no Gestational sac is seen in the uterus and some mass is found outside the uterus. In her case, the appellant did not go to a Gynaecologist, but went instead to a surgeon in another city, who just operated without assessing her or following the laid down protocol and on not finding anything just removed her appendix. The respondent No. 1 did his best for the appellant and relied on her giving an accurate history being an educated lady. Respondent No. 1 was sincere in his efforts. Learned counsel for respondent No. 1 has submitted before this Commission about medical literature “Progress in Obstetrics and Gynaecology, Volume Eleven By John Studd, MD, FRCOG, Consultant Gynaecologist, London, UK in Chapter-17, there is mention of Ectopic Pregnancy, in which Ectopic Pregnancy is defined as it is a Gestation in which implantation occurs at a site other than the uterine cavity. The terms extrauterine and Ectopic Pregnancy are often used synonymously. This is not strictly accurate; cervical and interstitial pregnancy are Ectopic Gestations located with the uterus. The patient with Ectopic Gestation may or may not have symptoms pointing to pregnancy. With or without a period of amenorrhea, she typically complains of pelvic pain and irregular vaginal bleeding. However, only half of the patients with Ectopic Pregnancy will be correctly diagnosed as having the condition based on clinical features alone. Ectopic Pregnancy may be suspected, if there is an enlarged but empty uterus and an adnexal mass and fluid in the pouch of Douglas. In order of appearance a normal intrauterine sac should contain a yolk sac and embryonic echoes with visible hear activity at days 33, 38 and 43 days from the last menstrual period respectively. Learned counsel for respondent No. 1 has argued that there is no denial about the fact that the complainant had visited Dr. Arti Luthra in the first place and Dr. Arti Luthra conducted an Ultra Sound herself and not finding any pregnancy, then, referred her for second opinion. The report of Dr. Arti Luthra has been purposely withheld by the appellant. It is clear that on same day, two doctors performed independent ultrasounds, but did not find any intra uterine pregnancy. It clearly shows that there was no negligence or wrong on the part of respondent No. 1. The fact of Dr. Arti Luthra performing an Ultra Sound is also borne out from the discharge ticket of Singhal Nursing Home, which has been filed by the complainant herself, which on the back page states that an Ultra Sound was done at Luthra Maternity and Infertility Centre on 13.07.2001. Infact, in this discharge ticket, the findings of Dr. Luthra had been recorded to state that no Gestation sac was seen in the uterus and that she was referred for a refined ultra sound to rule out Ectopic Pregnancy. It is clear that even Dr. Arti Luthra suspected Ectopic Pregnancy. Learned counsel further argued that husband of the appellant is in Indian Army and was posted at I.M.A., Dehradun. The complainant has been going from one doctor to the other and went to Saharanpur for an operation leaving the good medical facilities at M.H. or at other centers at Dehradun, is something which is not a normal conduct and more so, in the facts and circumstances of the case, where the appellant for some reasons best known to her was trying to have her pregnancy terminated. The appellant instead of consulting her Gynaecologist for further action for some reasons, best known to her, rushed outside Dehradun and got herself admitted at Saharanpur on 14.07.2001, i.e. on the very next day. The appellant is definitely concealing true facts and is also trying to take advantage of her own wrongs. As per the report of respondent No. 1, it is clearly stated that the Heterogeneous mass, which gave the indication of Ectopic Gestation, was located on the left side. In the discharge ticket of Singhal Nursing Home, there is no recording of the symptoms or other parameters of the patient like temperature, pain, blood pressure or other problems. The column of investigations on the back page is blank except the blood group. It is, therefore, clear that either she was operated upon in some emergency for appendix and she is now trying to take advantage thereof or she is hiding true facts. On the reverse of this discharge ticket, at the bottom, the words have been written “Mentioned on prescription of Dr. Luthra”. But these papers have been withheld. There is no room for any doubt that the appellant has not come with clean hands. She is guilty of misrepresentation, distortion and concealment of material facts. Learned counsel has argued that the sequence of events will also show that the appellant was acting in undue haste. The appellant did not even wait for a day. She was in a haste to terminate the pregnancy. The actual facts are that the appellant wanted to terminate her pregnancy and had gone to Dr. Arti Luthra for this purpose, has been clearly stated in para No. 24 of the written statement of respondent No. 1 and the same has not been denied by the appellant in her affidavit (paper No. 20ka on the District Forum’s record). The record of Dr. Arti Luthra and her affidavit clearly shows the intention of the appellant. At a belated stage, the appellant tried to say that she did not go to Dr. Arti Luthra for termination of pregnancy, but has failed to explain as to how the writing came into existence. Dr. Arti Luthra is a renowned doctor. The appellant has not alleged any bias or enmity. There is no reason, why Dr. Arti Luthra will fabricate any document. Learned counsel has argued that none of the facts stated by respondent No. 1 in the written statement were rebutted. There is no denial of any specific matter. Law is well settled that the denial has to be specific. The affidavit of Dr. Arti Luthra is also unrebutted. The appellant has also failed to produce any evidence in support of her allegations. There is no medical evidence whatsoever, submitted by the appellant. There is no rebuttal of medical book produced by respondent No. 1. There is nothing on record to show that the MTP was actually carried out. Learned counsel has also argued that since the Ultra Sound report did not reveal anything other test including Trans Vaginal Sonography was done without being charged. There is no denial of this fact that no payments were taken for these additional tests. Clearly the Sonography was done free of charge and, therefore, the complaint on its basis is not maintainable. As per the Section 2(o) of the Consumer Protection Act, 1986 “service” does not include the rendering of any service free of charge. The appellant has not filed paper of Dr. Arti Luthra as well as other papers and prescriptions. She has concealed material evidence and, therefore, adverse inference is liable to be drawn against her. The petitioner is under an obligation to prove her allegations.
9. Learned counsel for respondent No. 1 has placed reliance upon following decisions:-
(i) Martin F. D’souza vs. Mohd. Ishfaq; 2009 (74) ALR 802 (SC)
(ii) Kusum Sharma & others vs. Batra Hospital & Medical Research Centre and others; 2010 (79) ALR 921 (SC)
(iii) Calcutta Medical Research Institute vs. Bimalesh Chatterjee & ors.; (1999) CPJ 13 (NC)
(iv) United India Insurance Co. Ltd. vs. Sh. Budh Ram Singh; 2003 (2) UC 964 (State Commission, Uttaranchal)
(v) Ashok Kumar Aneja vs. Dr. Harish Kohli; 2003 (52) ALR 17 (Consumer) (State Commission, Uttaranchal)
(vi) Nand Kishore Prasad vs. Sister Grace, Kurji Holi Family Hospital; I (2003) CPJ 331 (Bihar State Commission, Patna)
(vii) Dr. Harkanwaljit Singh Saini vs. Gurbax Singh & anr.; I (2003) CPJ 153 (NC)
(viii) Ghisa Ram vs. Dr. P.K. Bansal & anr.; IV (2003) CPJ 299 (State Commission, New Delhi)
(ix) Smt. Vinita Ashok vs. Lakshmi Hospital and others; 2001 (45) ALR 405 (Supreme Court)
(x) Dr. Ashok Rajgopal & others vs. Ms. Deepti Ranjan; 2012 HVD (MNC) 84 (State Commission, New Delhi)
(xi) Madan Lal & others vs. Dr. R.K. Chaudhary & others; 2012 HVD (MNC) 207 (H.P. State Commission, Shimla)
(xii) Jacob Mathew (Dr.) vs. State of Punjab and another; III (2005) CPJ 9 (SC)
(i) In the case of Martin F. D’souza (supra), the Hon’ble Apex Court has held that like all professionals doctors too can make errors of judgment – If punished for this, no doctor can practice his vocation with equanimity. The Hon’ble Apex Court has also held that medical practitioner not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
(ii) In the case of Kusum Sharma and others (supra), the Hon’ble Apex Court has held that doctor performing operation having reasonable degree of skill and knowledge - Cannot be held guilty of negligence. In a case of medical negligence burden lies on complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. In case of medical negligence principles to be kept in view while deciding the cases. The doctors performing duties and exercising ordinary degree of professional skill and competence cannot be held guilty of medical negligence.
(iii) In the case of Calcutta Medical Research Institute (supra), the Hon’ble National Commission has held that onus of proving negligence on complainant, if negligence/deficiency not proved, order set aside.
(iv) In the case of United India Insurance Co. Ltd. (supra), this Commission has held that it is not a motor vehicle case, where some compensation to be given even if negligence of doctor is not proved. Doctor not liable to pay and no question of any compensation by insurance company, if negligence not proved.
(v) In the case of Ashok Kumar Aneja (supra), this Commission has held that lack of expert evidence to prove negligence in performing the operation or treatment, complaint dismissed. This Commission has also held that Forum cannot be utilized as an instrument to enrich the claimant.
(vi) Similarly, the State Commission, Patna in the case of Nand Kishore Prasad (supra), has held that absence of expert medical evidence negligence diagnosis whether proper or not, cannot be detected in absence of medical evidence.
(vii) In a case of Dr. Harkanwaljit Singh Saini (supra), the Hon’ble National Commission has held that in a case of medical negligence, absence of medical expert, the Commission cannot constitute itself to expert body and contradict statement of doctor. No case of negligence is made out, complaint dismissed.
(viii) In the case of Ghisa Ram (supra), the Hon’ble State Commission, New Delhi has held that medical practitioner not guilty of negligence unless proved that doctor not acted with sufficient care and skill.
(ix) In the case of Smt. Vinita Ashok (supra), the Hon’ble Apex Court has held that a doctor will not be guilty of negligence, if he has acted in accordance with accepted proper practice.
(x) In the case of Dr. Ashok Rajgopal & Others (supra), the State Commission, New Delhi has expressed its view that a professional should be held liable for medical negligence, if one of the two findings is found, i.e either not possessing of the requisite skills which he professed to have possessed or he did, not exercised, with reasonable competence, the skill which he did possess.
(xi) In the case of Madan Lal & others (supra), the H.P. State Commission has expressed its view that if basic principle relating to medical negligence which is known as Bolam Rule are not observed that heavy onus lies upon the complainants to prove medical negligence which can be discharged by cogent evidence. Mere averment in the complaint which is denied by other side, is no evidence by which complainant’s case can be proved.
(xii) The Hon’ble Supreme Court in the case of Jacob Mathew (Dr.) (supra) has clearly observed in sub-para (3) of para 49 that, “a professional may be held liable for negligence on one of the two findings; either he was not possessed of 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. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
10. According to the medical book “Progress in Obstetrics and Gynaecology” Chapter 17-Ectopic pregnancy: what’s new? Ectopic pregnancy is a gestation in which implantation occurs at a site other than the uterine cavity. The appellant-complainant had approached Dr. Arti Luthra on 13.07.2001 at her Luthra Maternity and Infertility Centre, where an Ultra Sound was done. The appellant had neither disclosed this fact in her consumer complaint nor filed any Ultra Sound report before the District Forum or before this Commission. It is evident from the short clinical history mentioned on the back of discharge ticket of Smt. Shikha Sheroan issued by Singhal Nursing Home, Church Road, Saharanpur. In this discharge ticket Ectopic pregnancy was diagnosed on the basis of Ultra Sound report of Dr. Arti Luthra and second Ultra Sound report of Sikund Diagnostic Centre dated 13.07.2001. This fact of Ectopic pregnancy was in the knowledge of Singhal Nursing Home, even then the operation for appendix was done on 14.07.2001. Dr. Arti Luthra has mentioned in the certificate (paper No. 25kha/2 on the District Forum’s record) that Smt. Shikha Sheroan came to Luthra Nursing Home with early pregnancy. She wanted to get her termination of pregnancy done, for which consent was taken and she was advised to get her ultrasound done as she wanted to confirm her pregnancy. Dr. Arti Luthra has also deposed in her affidavit (paper No. 106) that on 13.07.2001 Mrs. Shikha Sheroan W/o Capt. Yogi Sheroan consulted for her MTP at her clinic, for which she gave her consent in the consent register to ensure the existence of pregnancy before performing MTP, she referred the patient to Dr. Rajeev Sikund to verify the pregnancy. There after she never consulted her subsequently. Smt. Shikha Sheroan had given consent on consent register (paper No. 108) that she is willing for MTP under any kind of anesthesia and she had signed over this register. This fact had not been denied by the appellant-Smt. Shikha Sheroan. These facts have been concealed by the appellant in her consumer complaint. This shows that the appellant has not come before the Forum with clean hands. So far report of Sikund Diagnostic Centre dated 13.07.2001 is concerned, pregnancy was positive, but in Sonographic findings; no G.sac was seen within the uterus and a 27.1 x 30.0 mm in diameter heterogeneous mass in the left adnexa posterior and to the left of the uterus was found. Respondent No. 1-Sh. Rajeev Sikund had given impression that findings are suggestive of an ectopic gestation in the left adnexal region. Dr. Rajeev Sikund, M.B.B.S., M.D. (AFMC), Consultant Radiologist is a qualified doctor and a pathologist. Report of Chitra Ultra Sound & X-ray Centre (paper No. 29) has not been supported by any affidavit of Dr. (Mrs.) Chitra Agarwal. Similarly, Dr. Asha Rawal has not deposed on oath whether Smt. Shikha Sheroan had been under her treatment for pregnancy. No documents of any previous treatment and consultation by Dr. Asha Rawal was produced by the appellant before the District Forum or before this Commission. Therefore, reports of Dr. (Mrs.) Chitra Agarwal and Dr. Asha Rawal cannot be relied in absence of their affidavit in support. The appellant has also not filed any expert report against the report dated 13.07.2001 of Ultra Sound and Sonography conducted by Dr. Rajeev Sikund. There is no denial about the fact that the appellant had visited Dr. Arti Luthra in the first place and Dr. Arti Luthra conduced an Ultrasound herself and not finding any pregnancy, then referred her for second opinion. The report of Dr. Arti Luthra has been purposely withheld by the appellant. It is clear that on the same day, two doctors performed independent ultrasounds, but did not find any intra uterine pregnancy. The fact that the appellant wanted to terminate her pregnancy and had gone to Dr. Arti Luthra for this purpose, has been clearly stated in para No. 24 of the written statement of respondent No. 1 and the same has not been denied by the appellant in her affidavit (paper No. 20ka on the District Forum’s record). The record of Dr. Arti Luthra and her affidavit clearly shows the intention of the appellant. The fact of Dr. Arti Luthra is also unrebutted by the appellant. The appellant has failed to produce any evidence to prove negligence by the respondents. All the citations produced by the respondent No. 1 are fully applicable in this case also. In order to prove negligence, it was expected from the appellant to produce medical expert evidence. The burden of proving negligence of act and wrong diagnosed was on the appellant. The appellant has not produced any direct expert evidence to show that the Ultrasound or Sonography done by respondent No. 1 was wrong.
11. For the reasons aforesaid, we are of the view that the District Forum has properly considered the facts and circumstances of the case and has passed a reasoned order, which does not call for any interference and the appeal being devoid of any merit, is liable to be dismissed.
12. In view of the above, the appeal is dismissed. Impugned judgment and order dated 19.05.2008 passed by the District Forum, Dehradun is hereby confirmed. No order as to costs.
