For the Appellant : Mr. Praveen Kumar, AdvocateFor Mr. R. Santhan Krishnan, Adv. For the Respondent : Ms. K. Radha Rao, Advocate DATED :- 8th DEC. 2009 O R D E R Appellant was the complainant before the State Commission, where she had filed a complaint alleging medical negligence on the part of the respondents. It was the case of the complainant that her husband felt uneasy on account of abdominal pain on 11.08.99, for which he was admitted in the hospital of first opposite party, where he was diagnosed to have signs of perforated viscus. The first opposite party explained to the patient that there is a hole in the intestine and due to that hole, food particles are coming out for which the husband of the complainant would have to undergo surgery, which was done on 12.08.99. After two days of the surgery, the deceased was shifted to the second opposite party hospital for further management with ventilator. It was her allegation that the ventilator was not in good condition, it was not used properly and the same was taken away for other purposes. It was also her case that after surgery, the surgeon went away to Hyderabad to attend some conference despite the critical condition of her husband. As a result of medical negligence on the part of the opposite parties, the husband of the appellant died on 19.08.99. It is also the case of the complainant that the doctor was not in a position to confirm whether the patient was attacked by pancreatitis or perforation of Duodenum due to ulcer. It is stated that if the doctor has preferred ultra sound examination instead of clinical examination the true picture could have been ascertained. It is the case of the complainant that pancreatitis is a disease, which needs no surgical intervention, and it will be cured by giving medicines and needy rest. It is stated that there was no intensive care unit in Amrutha Hospital. It is the case of the complainant that from 15.08.1999 morning to 19.08.1999 the deceased was in the second opposite party hospital and during those days the first opposite party has attended only one time to entrust the case to the second opposite party doctors. The doctors of the second opposite party also did not attend on the patient till 17.08.1999. The doctors did not give any documents, case sheet, X-rays etc., to the defacto complainant. The case sheet was also not maintained. It is in these circumstances, a complaint was filed alleging medical negligence on the part of the respondent / opposite parties with a prayer to grant compensation of Rs.9,85,000/-. The matter was contested by the respondents / opposite parties, evidence was led by both the parties and there was subject to cross-examination. The State Commission after perusal of material on record and relying upon the evidence of the Doctors as also the medical literature came to the conclusion that the case of medical negligence has not been made out by the complainant and the complaint was dismissed. Aggrieved by this order, the appellant has filed this appeal before us. We head the Ld. Counsel for the parties and perused the material on record. We find that the State Commission has gone on to decide the case based on evidence of the parties only. It is not in dispute that the case of medical negligence has to be decided with the help of expert opinion and onus to prove the allegation of medical negligence, with the help of expert opinion, is on the part of the complainant, which has not happened in this case. As per law laid down by the Hon’ble Supreme Court in catena of judgments, culminating in the case of “Jacob Mathew Vs. State of Punjab & Anr. [2005 6 SCC 1]”, the onus of prove is on the complainant and that too with the help of an expert opinion. In our view, the State Commission could have obtained the medical opinion from an ‘independent source’, as per provision 13 of the Consumer Protection Act, 1986. After hearing both the parties, we are inclined to remand this case back to the State Commission with a direction that they should refer the case for obtaining an expert opinion from an independent Government hospital / Medical College, within one month. Copy of the expert opinion be made available to both the parties so that they can file their written submissions alongwith any medical literature on the subject within one month thereafter. Since this is an old case, the State Commission is requested to dispose of the complaint after following the above procedure as expeditiously as possible, preferably within four months from the first date of appearance. Parties through their respective counsel are directed to appear before the State Commission on 25th Jan. 2010. The appeal stands disposed off in above terms.