JUSTICE V.K.JAIN, (ORAL)

1.      This appeal is directed against the order dated 30-06-2015 whereby the appellants were directed to pay a sum of Rs.10,00,000/- as compensation to the respondent/complainant along with interest and cost of litigation.

2.      A perusal of the record would show that a consumer complaint alleging negligence on the part of the appellants in delivery of a baby by respondent-Manjeri Sinha was filed before the State Commission sometime in the year 2001. It is admitted in the synopsis filed by the appellants that after filing of complaint notice was served upon the appellants in the year 2001. It is an admitted position before us that no written version by the appellants was filed before the State Commission. The written version ought to have been filed within 30 days of receipt of notice or it could have been filed within 15 days, thereafter, subject to condonation of delay by the State Commission. Admittedly, the written version was not filed not filed till the time the complaint came to be decided. The learned counsel for the appellants seeks an opportunity to file the written version. However, considering that the appellants had as many as 14 years to file the written version after receipt of notice from the State Commission, we find no justification for condoning such an inordinate delay and, consequently, the request is declined.

2.      We have heard the learned counsel for the appellants as well as the authorized representative of the respondent/complainant who himself is a doctor. Admittedly, no doctor or no other expert was examined by the respondent/complainant before the State Commission, to prove the alleged negligence on the part of the appellant No.2 in performing the delivery procedure upon the complainant. It is an admitted position that the child delivered by the complainant had birth injuries in the form of shoulder dystocia. She is also stated to have birth injuries in the form of left brachial plexus with hornor’s syndrome. However, there is no expert opinion produced before the State Commission to prove that the aforesaid injuries happened only on account of negligence on the part of the appellant No.2 in performing the delivery procedure. There is no expert opinion to prove that but for a negligence, the child would have been born without the aforesaid injuries. We, therefore, feel that the complainant must produce expert evidence to prove that the child sustained the above referred injuries only on account of negligence on the part of appellant No.2 in performing the delivery procedure. Therefore, while rejecting the prayer of the appellants for giving them an opportunity to file the written version we direct the complainant to produce expert evidence in terms of this order, before the concerned State Commission. The expert evidence in terms of this order shall be produced either in the form of affidavit of a doctor or the said doctor will be produced as a witness. The appellant will have an opportunity to cross-examine the doctor if he so desire. However, they will not be entitled to produce any evidence, since they are ex parte and they have not filed any written version to the complaint.

3.      The parties shall appear before the State Commission on 20-02-2018.

4.      We also direct the State Commission to decide the complaint afresh within three months of the parties appearing before it. The amount which the appellants had deposited with the State Commission shall remain deposited till the complaint is decided afresh in terms of this order. The final order with respect to the disbursal of the said amount shall be passed by the State Commission while deciding the complaint afresh.