1. The Appellants filed the instant Appeal under section 19 of the Consumer Protection Act, 1986, (the Act”), against the Order dated 17.05.2022 passed by the learned State Consumer Disputes Redressal Commission, Andhra Pradesh. (“State Commission”) in Consumer Complaint No. 37 of 2017, wherein the State Commission partly allowed the Complaint against OP-1 and OP-2 (Appellants herein)., while dismissing any claim against OP-3 and OP-4.
2. As per report of the Registry, there is a delay of 21 days in filing the present Appeal.  For the reasons stated in IA/6343/2022, the delay is condoned.

3. For convenience, the parties in the present matter are being referred to as per position held in the Consumer Complaint.

4. Brief facts of the case, as per the Complainants, are that Complainants No. 1 and 2 are husband and wife. During the sixth month of her pregnancy Complainant no. 2 approached OP-2 for a regular medical check up who advised her to take an abdominal TIFFA scanning test to discern possibility of any congenial deformities in the foetus. As prescribed, on 25.01.2016 the Complainant No. 2 underwent the TIFFA scanning test for Rs. 1200/- wherein the foetus was reported to be as follows:
   •  
   • : Single viable foetus of about 26+1 weeks of gestation with good fetal well-being till date. Normal utero placental circulation. No sonographically evident major congenital anomalies.”

5. Consequently. Complainant No. 2 gave birth to a child on 18.04.2016. However, the child was born without a complete left arm. The Complainants contended that a careful examination and proper verification of the reports would have brought such major deformity to notice within time, thereby, allowing proper precautions for the same. However, owning to the negligent services of OP-1 to 3 no such precautionary measures could be taken by the Complainants. The matter was raised before the elders of the Tanuku village, where OPs accepted their negligence and promised compensation for the same. However, they later changed their stance and refused to make any compensation. Alleging this failure to provide for correct medical reports to be a deficiency in service, the Complainants finally filed a Consumer Complaint No. 37 of 2017 and sought compensation in the amount of Rs.30,00,000/- for gross negligence, mental agony, and irreparable loss and suffering caused to them and their child.

6. In response to the complaint before the State Commission, OP-1 to 3 asserted that the Complainants were not consumers and there was no hiring of service for consideration. Further, it was contested that complex questions of facts and law could not be decided in a time bound manner in a summary proceeding. There was no manager or incharge for OP-1, thus he could not be made a party to the complaint. OP-3 was not connected to any act related to the scanning or reports. The TIFFA scan report merely made certain observations, and it was not a conclusive finding which ruled out all possibilities of congenital deformities in the fetus. Allegations as regards negligence and deficiency in service were forcefully denied.
7. The Complainants filed their rejoinder denying the contentions made by the OPs in their written statement. They further contended that the OPs ought to have specifically mentioned in their report that the scan was not 100% successful in 26^th week of pregnancy and that the foetus being crowded was not properly visible. The Complainants denied insisting upon the scan or that any imformation was given to them by the OPs regarding the advanced stage of pregnancy.

8. The learned State Commission vide order dated 17.05.2022 dismissed the complaint as against OP-3 & OP-4 and partly allowed the complaint against OP-1 & OP-2 with the following observations:

“ 31. In the result, we hold that there is clear deficiency in giving report of TIFFA scan of the 2nd complainant. This    amounts to deficiency in service on the part of the opposite parties 1 and 2.

32. Complainants have sought a compensation of Rs.30,00,000/- with regard to quantam in Kusum Lata case referred to above, Rs. 10,00,000/- was granted as compensation for mental agony, pain and suffering of complainants having to take care of disabled child.

33. In the present case also an amount of Rs. 10,00,000/- is awarded towards the claim of the complainants as just compensation.

34. In the result, the claim of the complainant is allowed to an extent of Rs. 10,00,000/-and the opposite parties 1 and 2 are directed to pay the amount. The claim against the opposite parties 3 and 4 is dismissed. Time for compliance one month.”

9. Being aggrieved by the impugned order dated 17.05.2020 passed by the Ld. State Commission, OP-1 and OP-2 (appellants herein) have filed this present Appeal no. 497 of 2022 seeking to:

“Allow the appeal and set aside the order dated 17.05.2022 in CC No. 37 of 2017 of the A.P. State Consumer Disputes Redressal Commission, AP and dismiss the complaint.

Pass any other order or further orders as may be deemed fir and proper in the circumstances of the case.”

10. In the grounds of the instant appeal, the Appellants have mainly contended the following:

1. The State Commission grossly erred in ignoring that a suitable timeframe for scanning probable deformities in the fetus in TIFFA scanning test is between 18-20 weeks of pregnancy. Complainant no. 2 approached OP-2 Scanning Centre during her 26^th week of pregnancy. By then the pregnancy had reached an advanced stage due to which the weak fetal part grew and crossed in the womb causing the movements of the fetus to be restricted. Thus, it could not have been possible to turn the fetus and effectively examine it for any deformities.
2. The State Commission overlooked that a 26-week-old, fully grown fetus with its legs and arms tucked in will, due to its flexed position and crowded posture, make it impossible to have 100% detection of the congenital deformity, despite the technology being available to detect the same in modern times and the same was also informed to her beforehand by OP-3.
3. The State Commission failed to note that the scanning was done only upon the steadfast request of Complainant no. 2, despite knowing that a successful scan could not be ensured during 26^th week of pregnancy. Thus, taking a regular payment for the scan cannot be interpreted as wrong.
4. The State Commission erred in awarding Rs. 10,00,000/- as compensation by applying the ratio of Kusum Lata v. M/s Raj  3D Scans & Anr. in the present facts without noticing that the facts of the said judgement did not apply to the present case.
5. The State Commission failed to note that it's impractical to detail every seen and unseen part in a scan report due to the numerous elements involved in a human body thereby, making it impossible to make an exhaustive list. The scanning report clearly mentioned ths phrase “to the extent visualised” and the same should be correlated to the clinical findings.
6. The issue whether the Complainant would have the option to medical termination of pregnancy or not is a matter of the legal right of the Complainant and is not to be determined in a case alleging medical negligence like the present one.

11. Upon notice of memo of appeal, the Respondent/Complainants filed their reply. While appreciating the order of Ld. State Commission, they prayed to dismiss the appeal as being devoid of merit. They relied on the judgment of Mrs. X v. GNCTD & Anr. in W.P.(C) 16607/2022 wherein a 33 weeks pregnant female was allowed to terminate her pregnancy on the ground of cerebral abnormalities in the fetus.

12. In her arguments, the learned Counsel for the Appellants/ OP-1 & 2 reiterated the grounds of appeal. They asserted that as opposed to the claim of the Complainant, it was not possible to terminate a 26 week pregnancy. Moreover, she was aware about the uncertainity of test at such an advanced stage and the same was informed to her by OP-3. OPs produced medical literature to support their claim which reiterated that an ideal stage to diagnose congenital abnormalities in the fetus is at an earlier stage. She relied on Kusum Lata & Anr. v. M/s Raj  3D Scans & Ors., F.A. No.887 of 2016, decided on 21.02.2019 by the NCDRC wherein it has been held that on the basis of which the learned State Commission had awarded the compensation; V. Mahender Kumar v. K. Devaki Nayak and Sentil Scan v. Shanthi wherein it was held that the first ultrasound is not 100% perfect and cannot be considered a conclusive proof of no fetus no abnormalities.

13. On the other hand,  learned Counsel for the Complainants reiterated the facts from the Complaint and argued that the finding of TIFFA Scanning test as observed by OP-2 stating 'Limb : The long bones of both upper and lower limbs appear normal to the extent visualized. Normal tone', eliminated any doubt about movement restriction of foetus due to want of place as alleged by the OPs and any lack of clarity or haziness in the fetus’ movement should have been mentioned in the scanning test report itsef. Its omission demonstrated a clear deficiency in services on the part of OPs as it deprived the Compainant to exercise her right to a timely abortion. Appreciating State Commission findings, it was argued that there was a deficiency in service on part of the OP-1 & 2 as they ought to have mentioned not seeing a part in the scan. She relied upon the judgment in the case of ABC vs. State of Maharashtra, W.P. (ST) No.1357 of 2023, decided on 20.01.2023 by the High Court of Maharashtra at Bombay.

14. I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned counsels for both the parties.
15. Maternal and neonatal morbidity and mortality are key health indicators for any nation. To promote optimal maternal and neonatal health, antenatal care must be of high quality, leveraging the latest knowledge and resources. Ultrasonography (USG) is an essential tool in pregnancy management, helping to detect congenital malformations, multiple pregnancies, placenta previa, as well as confirming gestational age. The anomaly scan, also known as a TIFFA (Targeted Imaging for Fetal Anomalies) or level II scan, is an advanced version of ultrasound. It is a key second-trimester test typically performed between 18-23 weeks of pregnancy that checks for fetal anatomy, including the brain, face, spine, heart, stomach, bowel, kidneys and limbs, to examine normal development and assess the placenta's position. The results of this scan assist the doctor in making informed decisions to manage the rest of the pregnancy. Alao, it helps the pregnant woman or parents make decisions wrt medical termination of pregnancy in compliance with the MTP Act.

16. In the present case, the complainant approached the OP for a TIFFA scan in her 26^th week of pregnancy. In its 2016 antenatal care (ANC) recommendations for pregnant women, the WHO recommended one ultrasound (US) scan before 24 weeks gestation to estimate gestational age, improve detection of feotal anomalies and multiple pregnancies, reduce induction of labour for post-term pregnancy and improve pregnancy experience. It is the case of the OP that they had informed the Complainant that the pregnancy being at an advanced stage there was a possibility that the results would not be certain. The merit in the argument of the parties pertaining to medical feasibility of safe termination of 26 week pregnancy notwithstanding, it is a case wherein the diagnosis report was what that has been oserved during the examination, with due regard to the limitations stated theareat was 'Limb : The long bones of both upper and lower limbs appear normal to the extent visualized. Normal tone'. In any case, the first ultrasound test by itself is not failsafe or can be considered a conclusive proof of either normal or abnormal fetus conditions. It is the consulting doctor who is to decide upon any further examinations necessary in this regard.

17. Admitedly, as no abnormarmality was noticed in the stated conditions, the report was made accordingly. It is undisputed position that the test of the complainant was done in her 26^th week of pregnancy. It is the contention of the OP that size of the fetus had grown to an extent that a complete image of the fetus was not visible in the scan. If there was a crowded fetus, or if the fetus arms and legs were tucked in, resulting in only one side of the fetus being seen on the screen. Thus, the report was “to the extent visible”. It is not the case that certain abnormality was observed or obvious and, however, the OP failed to record or intimate the same.  Thus, the contention of OP that not every possible abnormality can be made visible and the report provided are tenable.

18. With regard to the judgment of Kusum Lata v. M/s Raj  3D Scans & Anr., it is to be noted that there is difference in facts of the said judgment from the present case as in the former, the pregnancy in question was between 18-20 weeks. Whereas in the present case, the complainant went for testing in her 26^th week. Further, in the abovementioned case, a 3D test was conducted where deformity, if any, could have been more clearly visible. Contrary to this, in the case at hand the TIFFA test conducted was a 2D test, done at a much later stage. Therefore, drawing an analogy between the two scenarios would be of limited relevance.
19. Admittedly, the said report and its limitations were considered as they are by the complainants and the consulting doctors, and no further examination was considered necessary. Had they been more circumspect, there would have been more confirmatory tests and more information, notwithstanding the decision or scope for MTP. In any case, it is not the case that the OPs reported certain non-existing abnormality and depending upon the same, the fetus was aborted. Further, the complainant’s doctors are not party to the present appeal.

20. While the birth of the child with the stated abnormality is certainly very sensitive issue with due regard to its profound impact on the parents who were not even remotely expecting it, the contribution of OPs in this regard is very limited. The 2D scan report rendered by them had its limitations stated thereat and to the extent the fetus was visualised. The expert opinions are also self-explanatory in this regard. Therefore, no negligence on the part of the OPs is established.   

21. In view of the discussion above, I am of the considered view that the Order of the learned State Commission dated 17.05.2022 is unsustainable and is, therefore, set aside. Therefore, the instant First Appeal No. 497 of 2022 is Allowed.

22. There shall be no order as to costs.

23. All pending applications, if any, also stand disposed of accordingly.
24. The Registry is directed to release the Statutory deposit amount, if any due, in favor of the Appellant cas per law.