JUSTICE J.M. MALIK 1. The facts of this unpleasant, disagreeable, unpalatable, repulsive and revolting case emanating from the above said complaint filed before this Commission as back as on 31.07.1998, by Mrs. Rachana Shah of Mumbai and her husband, Mr. Sanjay Shah, Complainant Nos. 1 & 2, respectively, the unfortunate parents, whose new born infant was kidnapped/lost from the hospital known as Society of St. Francis Hospital and Nursing Home, OP1, Ajmer, Rajasthan, who was never to be found, are these. 2. Prior to her marriage, complainant No.1 used to reside with her parents at Ajmer, Rajasthan. After her marriage with complainant No.2, Complainant No.1 became pregnant during February, 1996. Complainant No.1 came to Ajmer for the delivery of the child and resided with her parents. On 31.10.1996, the complainant No.1 was admitted to the said hospital for delivery. She was under the treatment and care of supervision of OP1. Around 5.30 PM, on 31.10.1996, following Caesarean Operation, complainant No.1, gave birth to a male child. After the birth, during the process of delivery, the child swallowed water due to which he developed breathing problem and was, therefore, kept in Intensive Care Unit (ICU) of the said hospital for special treatment and care. No person, including the complainant No.1 was allowed to come near the ICU and hold the child. The child was in complete care and supervision of the staff of OP1. Complainant No.1 did not even breast-feed the child for the first two days. The Opposite parties took care of and nursed the child. Only after 02.11.1996, the Opposite parties took the child to the complainant No.1 for breast-feeding, once a day. The procedure for that was, that the nurse, n duty at the relevant period, would take the child from the ICU to the complainant No.1 room, for feeding. Immediately, after the feeding was over, the nurse, n dutywould bring the child back to the ICU. The said child was not allowed to remain present in the room, for any period, beyond the time for feeding. The feeding charts from 31.10.1996 till 05.11.1996 of the child, as recorded by the Opposite parties have been placed on record as Ex.B. 3. On 05.11.1996, around 5.50PM, the child was shifted to the care and supervision of the Opposite parties in the Infant Nursery. The hospital in question is a huge building comprising a Ground, and one-and-a-half First Floor, with an adjacent building, comprising of two storeys, used as a hostel for the nurses, administrators, etc. The Infant Nursery is situated on the one-and-a-half first floor of the said hospital. In the meantime, the child was shifted from ICU to Infant Nursery of the said hospital. Sister Lalitha, one of the Nurses, n duty for the Nursery/Maternity ward, took the child to complainant No.1 room for feeding around 6.30PM, on 05.11.1996. After the feeding was over, the said Sister Lalitha, came to the complainant No.1 room and collected child to take him back to the care and supervision of the Nursery. Sister Lalitha again brought the child to the complainant No.1 room for feeding, at around 10.00PM. On the night of 5th November, 1996, the child was taken back by the said Sister, Lalitha, to the Nursery, at around 11.00PM. The duty of Sister Lalitha finished at around 11.00PM, when she handed over the child to Sister Delphenna and Sister Elsemma, OP Nos. 2 & 3, respectively. 4. During the intervening night of 5th November, 1996 and 6th November, 1996, Sister Delhphenna brought the child to the room of Complainant No.1, for feeding. Mother of complainant No.1 was also staying in the room to look after complainant No.1. Sister Delphenna gave instructions to the complainant No.1 that child should be returned to the Nursery, after feeding. At about 2.00AM, while the complainant No.1 mother was holding the child in the verandah of the room, OP No.3, Sister Elsemma, passed-by and told her that the child should be returned to the care of the Nursery. At about 3.00AM, as per instructions given by Sister Elsemma, OP No.3, the complainant No.1 mother, took the child to the Nursery where she handed over the child to Sister Delphenna, OP No.2, in the presence of OP No.3, Sister Elsemma. Mother of complainant No.1 came back to the room of Complainant No.1. Thereafter, the child was not brought again, for feeding. 5. At 7.00AM, Sister Delphenna and Sister Elsemma, OP Nos. 2 & 3, respectively, came to the room of complainant No.1 and asked complainant No.1 to return the child so that they could take the child back to the Nursery. Complainant No.1 and her mother were totally shocked as they had returned the child at about 3.00AM. It transpired that at about 3.30 AM, OP No.3 was called to the Labour Room for another delivery, where she remained there from 3.30AM to 4.30AM. Consequently, OP No.2, remained n dutyin the Nursery. It also transpired that OP No.2, at the crucial time, left her duty desk and went to the Labour Room to check on, a delivery, taking place there. No note was left in the Nursery Room, nor it was locked. It transpired that OP No. 2 saw two unknown and unidentified men sitting in the said area. OP No.2 did not question them. OP Nos. 2 & 3 did not check the Nursery, till 7.00AM. The new born child was left unattended for such a long time. 6. It is alleged that the OP1 did not care to lodge a case with the police. Instead, they called their Lawyers to obtain legal protection. The brother of complainant No.1 lodged a report with the police, on 06.11.1996 at around 8.30AM. A case under Section 365 IPC was registered. The Opposite parties, in their letter, Ex.D, dated 27.11.1996, admitted that the child was found missing from the premises of the OP1 Hospital. The complainant No.1 took discharge on 23.11.1996, without the child. Media and representations to the high dignitaries, were made, but it did not produce the desired result. 7. It is averred that OP1 has enormous influence with the police authorities which is apparent from the fact that the police did not conduct a proper investigation. The complainants filed a Writ Petition before the Honle High Court, Rajasthan. The Honle High Court, Rajasthan, vide order Ex.G, referred the matter to CID, Crime Branch, Rajasthan. 8. It was also pointed out that the visiting hours of the said hospital are between 7.00AM-8.00AM and between 11.00AM-2.00PM and between 4.00PM to 8.00PM, in the evening. During the remaining time, the entry to the said hospital, purportedly remains closed to persons, other than authorized personnel engaged or employed in the said hospital. The said hospital is guarded by watchmen, employed by the hospital authorities themselves and also by the personnel of a private security agency, in the name and style of .K. Ojha Security Services 9. According to the complainants, it was the duty of the hospital to take care of the child. The hospital is vicariously liable for the omissions and commissions of OP Nos. 2 & 3. It is established that the OP1 was negligent. It is deficient in discharging its duties. Consequently, the complainants have claimed compensation and damages in the sum of Rs.75.00 lakhs, which also includes an amount of Rs.2,60,000/-, spent towards expenses for carrying out the above search. DEFENCE 10. The OP1 has hotly contested this case. It has enumerated the following defences, in support of its case. It key objection is that this is not a onsumer dispute It is contended that the complainants are not consumers. Again, the complaint is bad for non-joinder of necessary and proper parties. The OP1 did not try to elaborate this point. FIR was lodged by the complainants. Consequently, this complaint is neither maintainable nor the Commission can take cognizance of the same. Complainants also filed Writ Petition before the Honle High Court, Rajasthan, wherein, besides other reliefs, they have also claimed the costs of the petition. Since the Honle High Court, Rajasthan has handed over the case to CID, Crime Branch, therefore, this case is not maintainable. The instant case has been filed to harass, humiliate and defame the OP1, which is running the hospital for the benefit and welfare of the masses. The Nursery, from where the allegation of missing of the child has been made, the said service, if at all one, is being provided for free of costs, and, therefore, this is not a onsumer dispute As a matter of fact, the child was lost when he was in the custody of complainant No.1 mother. The mother of the complainant No.1 is responsible for the alleged happening. The OP1 is discharging its duties towards the public, for more than three decades, without any complaint, of any kind. The above said accident took place due to connivance and/or negligence of the mother of the complainant No.1. It is explained that in addition to this incident, there had been other incidents also/a couple of incidents where the new born babies were found lying dead by the side of the mothers and the mothers were unaware of the fact and the reason of their death was uffocationand sphyxiationdue to their having come under the sleeping mother who obviously was so tired and exhausted that she knew the least that she had suffocated the child causing his/her death. 11. It is also explained that duty of Sister Lalitha came to an end at around 11.00PM. Thereafter, she handed over the charge of the Nursery to OP No.3, Sister Elsemma. At around mid-night, the said Sister Elsemma brought the child to the room of complainant No.1, for feeding. Mother of complainant No.1 was also present. Sister Elsemma gave instructions to the complainant No.1 and the mother of complainant No.1 to ring the call bell after feeding over the child, for Sister Elsemma to come and take back the baby to the Nursery. Meanwhile, OP1 2, who was supposed to be helping in the Labour Room, was not feeling too well. There were many cases waiting to deliver. The staff in the Labour Room, therefore, requested Opposite party No.3 to come to the Labour Room to help and asked the OP 2 to go to the Nursery and look after the infants so that OP 2 may have a light job, since she was not keeping well. As per the order of the Staff in the Labour Room, OP No.3, handed over the infants in the Nursery with mothers to OP No.2 and went to Labour Room. OP No.3 remained in the Labour Room and Private Room duty till 7.00AM, next day, i.e. 06.11.1996, except for reaching the new born babies from the Labour Room to Nursery, each time, when they were delivered. Around 3.00AM, that morning, OP No.3, while returning to the Labour Room from one of the Private Rooms, after giving care to one of the mothers, saw the complainant No.1 mother roaming with the child in the Verandah, outside the room. OP No.3 told her that it was very cold in the Verandah and requested her to return the child to the Nursery. OP No.3 then went into the Labour Room. It is explained that the child was never delivered by the mother of the complainant No.1 to the Nursery, at any point of time. At around 3.30AM, OP 2 left the Nursery and went to the Labour Room asking the Sweepers there, just to keep a watch on the Nursery. OP No.2 witnessed part of a child birth and returned to the Nursery after about 15-30 minutes and continued taking care of the infants in the Nursery and with mothers At around 5.00AM, OP No.2, realising that the child had not returned to the Nursery, went to the complainant No.1 room and knocked at the door to get back the child to the Nursery. Since no one opened the door from inside, OP No.2, returned to the Nursery, without the child. As per the usual custom, OP No.2, collected all the children at 7.00AM, but the child in question could not be found anywhere. 12. The Administrator and the ward Incharge took all the steps to search the child. The staff of the hospital was interrogated by the police. The staff of OP No.1 undertook polygraphy test, which did not indicate that the staff of the OP No.1 were involved in this case. The staff fully co-operated with the police, and the other allegations have been denied. WHETHER A CONSUMER DISPUTE : 13. The main controversy swirls around the issue is hether it is a consumer dispute or not? Counsel for OP1 argued with vehemence that this is not a consumer dispute. He contended that they are giving free services to the people. It was further clarified that at least Nursery services are free. Moreover, all the facts of this case smack of criminality. OP1 is not concerned with kidnapping. The staff of OP1 , hospital, were interrogated by the police. Honle High Court was seized of the matter. The Honle High Court, Rajasthan has transferred this case from the police to the CID, Crime branch. The staff of OP1 were made to undertake polygraphy test and all of them came out lean In order to buttress the case, counsel for the OP1 has cited a judgment of this Commission, reported in Santosh Sharma & Ors. Vs. State Bank of India & Ors., 1991(1) CPR 103. In this case, a Bank official happens to have an altercation and assault with a customer, during the banking business. It was held that it was not a case of deficiency in service on the part of the bank. The learned counsel for the OP1 also argued that since the High Court is seized of the matter, therefore, this Commission cannot arrogate to itself the powers which it does not enjoy. Only the police can take action. 14. We are unable to clap any significance with the above said arguments. There is no evidence on the record that the above said hospital is a Charitable Institution and it gives treatment to its patients, ree of costs This is an admitted fact that the bills were paid by the patients and the OP1 provided services for the same. The learned counsel for OP1 admitted that few services are provided ree of costs otherwise, expenses are charged from the patients. He also admitted that OP1 is not a charitable hospital and nominal fees are charged. 15. Learned counsel for OP1 also submitted that he was not a party to the Writ Petition. Yet he does not raise any objection to the pendency of Writ Petition before the Honle High Court. The authority cited by the counsel for OP1 does not dovetail with the facts of this case. That case is different. No service was provided by the bank official to the client of the bank. 16. Honle Apex court in Indian Medical Association Vs. V.P. Shant, (1995) 6 SCC 651, Para 55(7) page 681, was pleased to hold: ervice rendered at a non-government hospital/Nursing Home where charges are required to be paid by the persons availing such services, falls within the purview of the expression ervice as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 17. This is clear that taking care of the child till his discharge, lies on the shoulders of the hospital. After the child is misplaced, there is a clear deficiency on the part of the hospital. WHETHER IT WAS A CIVIL DISPUTE? 18. The second point raised for consideration is, hether this case should have been tried by a Civil Court? At the fag end of this case, some interrogatories have been served upon the complainant, her husband and her mother. The counsel for the OP1 submitted that some contradictions have cropped up during the above interrogatories which did not match with the original version. He explained that he should have been granted a right to cross-examine the witnesses. He explained that under these circumstances, this Commission is not armed with that jurisdiction and has made a futile attempt to bring this case within its domain. 19. Counsel for the OP1 has invited our attention to another authority, reported in DevelOP1ment Credit Bank Ltd., Vs. CCI Chambers Co-op. Housing Society Ltd., (2005) 11 SCC 447, wherein the Apex court has held that : . The principal grievance of the appellant before us is that it would be deprived of its right to cross-examine the deponents of the affidavits incorporating examination-in-chief tendered in evidence by the complainant in view of the decision dated 03.12.2004 in Original Petition No.233 of 1996 incorporating a practice direction of this Commission. The direction requires the Opposite parties to file interrogatories whereafter the Commission may permit further cross-examination or not, in its discretion. 5. The learned Senior counsel for the respondent before us i.e. the complainant in the Commission, has submitted that the complainant has no objection to the Opposite party conducting a full-fledged cross-examination of the deponents of the affidavits filed on behalf of the complainant. We direct accordingly. 6. Inasmuch as the deponents will be subjected to full-fledged cross-examination before the Commission, the Commission would be at liberty to form an opinion afresh, now or any subsequent stage, whether it would like to conduct the trial before itself or refer the parties to the civil court 20. These arguments carry no conviction. The facts of these authorities are different and the Honle Apex court has already taken a view in this context. Vide detailed order passed by this Commission, on 03.09.2012, we observed that he application moved by the OPs, for cross-examination of witnesses, is lame of strength, and therefore, the same was dismissed Aggrieved by that order, SLP was submitted before the Honle Apex Court. The Honle Apex Court, vide its order dated 31.10.2012, dismissed the same. Although, we have not received any copy of the order from the Honle Supreme court, yet, both the counsel admitted this position. We are of the considered view that this is not only a civil dispute, but a consumer dispute and it can be decided by this Commission. 21. In Dr. J.J. Merchant & Ors. Vs. Srinath Chaturvedi (2002) 6 SCC 635, Para 12 Page 642, the Apex court was pleased to hold, t was next contended that such complicated questions of facts cannot be decided in summary proceedings. In our view, this submission also requires to be rejected because the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial, would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable, long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done, when some questions of facts are required to be dealt with or decided. The Act provides sufficient safeguards 22. Even the pendency of the Writ Petition before the Honle High Court, where the OP1 was not a party to the Writ Petition, does not debar this Commission to decide the dispute under the Consumer Protection Act, 1986. Moreover, the law has got the crystalline clarity on this point. It is well settled that consumer court can exercise its jurisdiction in such like cases. In Sat Pal Mohindra Vs. Surinder Timber Shre, 1999 (5) SCC 696, it was held that Suit and Consumer case can go together. Moreover, the Honle High Court was dealing with a criminal case and not with a civil case. The criminal and civil liabilities are different. There lies no rub in proceeding against the wrong doer, under both these laws, separately. INTERROGATORIES AND SO-CALLED CONTRADICTIONS: 23. The learned counsel for the OP1 submitted that the child was always with the mother of complainant No.1 and she never returned the child. He contended that the admitted case of the parties is that two unidentified persons were sitting there. He further submitted that the mother of complainant No.1, while working in cahoots with the two unidentified men, must have got the child kidnapped. He contended that succinctly stated that it is the mother of complainant No.1, who has stolen the child. The following extracts appear in the statements of Smt.Rachana Shah, complainant No.1. here was no one to attend the Nursery on the morning of 06.11.1996 from 3.30a.m. to 4.a.m. No other nurse was called to take charge of the nursery for that time. Nobody was called to keep a watch on the infant nursery. OP No.2 did not lock the nursery before her leaving the nursery unattended, though a provision is made for the same. No authorized personnel were kept on duty in the area of the nursery t around 3.30a.m. OP No.2 saw two unknown persons sitting in the area of the one and half floor, whose identity was not questioned by her nor did she ask them to leave or take any action t is not correct that my mother took my child out of my room at 2 Oclock on that night. At 2 Oclock on that night, my child was crying and my mother was pampering him, while holding him near the door of my room/verandah and was trying to make him asleep y mother went to the nursery to return back my child to the nurses as per the instruction given by OP No.2 24. Again, the necessary extracts from the interrogatories of Smt.Shakuntala Mehta, mother of the complainant No.1 are these. * On the morning of 06.11.1996 around 3.3.0a.m. OP No.2 also left the nursery and went to the labour room to check on a delivery taking place there and she returned to the nursery at 4a.m. * There was no one to attend the nursery on the morning of 06.11.1996 from 3.30a.m. to 4.am. No other nurse was called to take charge of the nursery for that time. Nobody was called to keep a watch on the infant nursery. OP No.2 did not lock the nursery before her leaving the nursery unattended, though a provision is made for the same. No authorized personnel were kept on duty in the area of the nursery. * At around 3.30a.m. OP No. 2 saw two unknown persons sitting in the area of the one and half first floor, whose identity was not questioned by her nor did she ask them to leave or take any action. * From 3 a.m. till 7a.m. on the night intervening 5.1.1996 and 6.11.1996 OP No.2 and 3 who were on duty of the nursery did not check the nursery or attend the infants in the nursery. When they checked the nursery at 7 a.m. in the morning of 6.11.1996 they became aware that the child was missing. * In the morning also after becoming aware that the child was missing the Hospital did not even lodge an FIR to the Police Station, nor questioned their staff and instead of taking any action, called their lawyer 25. The learned counsel for the complainants also invited our attention towards the fact that both the above witnesses could not recollect whether the Nursing Table is actually nursing station where record of the admitted patient, necessary medicines, etc., are kept and nurses complete the record there. He also pointed out that it is very clear that there are contradictions on the point of verandah. 26. The next submission made by the counsel for the OP1 was that the verification of all the witnesses is similar, which is reproduced below:- erification: Verified at Mumbai on this the 25th of July 2102 that the contents of the above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom. DEPONENT 27. Learned counsel argued that verification is not correct and it appears that the witnesses did not have personal knowledge. He has invited our attention towards the authority reported in A.K.K. Nambiar Vs. Union of India, AIR 1970 SC 652, wherein it was held:- he appellant made allegations against the Chief Minister of Andhra Pradesh and other persons some of whose names were not disclosed. Neither the Chief Minister nor any other person was made a party. The Appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant petition were also not verified. The reasons for verification of affidavits are to enable the court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence, verification is required to enable the court to find out as to whether it will be safe to act on such affidavit evidence. In the present case, the affidavits of all the parties suffer from the mischief of lack of proper verification with the result that the affidavits should not be admissible in evidence 28. This is an argument vulnerable to refutation. It must be borne in mind that the incident took place in the year 1998, interrogatories and reply to interrogatories, were filed on 25th July, 2012, i.e. after lapse of more than 16 years Few contradictions coming out of a statement of a witness rather reveals that his version is natural and true. He also pointed out that answers of the witnesses are not the same. This is well known that human memory is vicissitudinary. Passage of time, effaces the memory of human beings. The facts of the above said authority are altogether different. It is apparent that all the witnesses are telling the truth. Whether there was a table? and What is its purpose? OR Whether the mother of complainant No.1 came into the verandah, to argue about these, after the lapse of 16 yearsis just splitting hairs. We are unable to find holes in their testimonies. The main question is, here the child has vanished? The mother-in-law was interrogated by the police. The police also interrogated the staff of the hospital, OP1. There may be no criminality on the part of any of these persons, including the mother of the complainant No.1. The most pertinent question coming to the fore is, hether the hospital was negligent in taking care of the child?. No criminal case can be filed by the complainants against the OPs. This also does not fall within our domain. The main thing is negligence, which we will discuss in the subsequent paras. WHETHER THE HOSPITAL IS NEGLIGENT? 29. Whether there was negligence on the part of OPs? The learned counsel for the OP1 argued that there is no evidence that the mother of the complainant No.1 had returned the child in the Nursery. Again, there was tight security. The complainants themselves, in their complaint, admitted this fact. The complainants themselves stated that during the remaining time, the entry into the said hospital, purportedly remained closed to unauthorised people. The hospital is guarded by watchmen, employed by the hospital authorities themselves and also by the private security agency, known as R.K. Ojha Security Services. He contended that the mother of the complainant No.1 must have stolen the child. This is a case under the tort or civil law. The record of the hospital has been unblemished. The CID has given the report and they have not raised a finger against the hospital. There is no evidence against any official of the hospital. The final report of the CID was never challenged. Onus to prove their case lies upon the complainants They are to show, as to where the child got vanished. At best, this is a case of kidnapping and the police did not find any case against them. No criminal culpability was found against the OP1. Counsel for OP1 has placed reliance on Abdul Rashid Vs. Calcutta Municipal Corporation, AIR 1990 Calcutta 37, wherein it was held: his affidavit cannot be relied upon as the said Kedar Prasad has signed in Hindi and it does not appear from the body of the affidavit that the text of this document in English was explained to him, by anybody. Apart from the civil suit, several criminal proceedings were also initiated by the petitioner and the one being Case No. 186 of 1988 is a blatant example of the petitioner sense of vengeance and mean mindedness 30. We find it extremely difficult to countenance these contentions. It must be borne in mind that it is the hospital which is to carry the ball in proving as to where the child got vanished. The child always remained in their custody. Even if it is assumed for the sake of arguments that the mother of complainant No.1 kidnapped the child, this argument was stated for its outright rejection. Firstly, the mother was thoroughly interrogated by the police. Secondly, why even the mother is permitted to kidnap the child? Where was the security of the hospital? They should not have permitted the mother or her alleged accomplices to commit the said crime. It is clear that the hospital did not make any efforts to straighten out the problem. The record goes to show that the police was not called immediately. The police was called by the brother of complainant No.1. The hospital instead, called their lawyer to save them from that situation. It was the maternal uncle who lodged the complaint/FIR with the police. 31. It is also surprising to note that no register is being maintained for handing over the child to the parents and getting it back. The maintenance of the register would have gone a long way to bring us face to face, with reality. The record otherwise clearly goes to show that the child was handed over to OP 2, in the presence of OP3. 32. This comes out of the horse mouth itself that the child was found missing from the Nursery. The letter dated 27.11.1996 written by Sister Clara, the Administrator of OP1, St.Francis Hospital, is reproduced as follows:- e are in receipt of your letter dated 23.11.96 delivered to the undersigned by hand on 26.11.96. In connection with the above letter, we have to reply that the allegation against the Hospital and Staff about the kidnapping of the child are wrong. The child was found missing from the Nursery. As soon as we were informed that the child was missing from the Nursery, we made all efforts to find the child and also informed the Police in this connection. Investigation in the matter is still pending. Sd/- Sr.Clara 33. The reply filed by Sh.Sandeep Singh, OIC, Deputy Superintendent of Police, South Ajmer, during the Writ Petition, is reproduced as follows, but it must be borne in mind that OP1 was not a party to that proceedings. Paras 5, 6 & 7 of the reply to show-cause notice filed by State of Rajasthan, through the Deputy Superintendent of Police, South Ajmer, before the High Court of Judicature at Rajasthan, runs as follows: . That contents of para No.5 of the writ petition are partly admitted and it is humbly submitted that after making investigation, it was found that the newly born child was with the petitioner upto 3.00AM in the night intervening 5th and 6th of November, 1996, and after that the infant was given to sister Delphenna in the Nursery Room by mother of the petitioner, Smt. Shakuntala Mehta. 6. That contents of para No.6 of the writ petition are replied in the terms that the child was given by Smt. Shakuntala Mehta, by mother of the petitioner to Sister Delphenna about 3.00AM but at that time, Sister Elsemma was not present in the Nursery Room, but Sister Elsemma had seen the mother of the petitioner, Smt.Shakuntala Mehta in the Verandah, and she asked, why she was standing with the child in Verandah in such a cold weather and suggested to give the child in the Nursery Room. 7. That contents of para No.7 are partly admitted and it is further submitted that on 06.11.1996, Sister Delphenna to search the child in the room of the petitioner at 7.00AM and Sister Elsemma was not with her, as emerged out by the Investigation done by the police 34. Para 11 of the said reply runs as follows: 1.Not only detailed and intensive interrogation and investigation was done from Sister Delphenna and Elsemma, but also their statements were got examined through polygraphic examination, report of which is yet to be received from the F.S.L. Besides it, the investigation was also made from Bhanwar Lal, Chowkidar and Polygraphic test was also done of his statement, same in the statements of employee Santosh and another Nurse Lalita and another Witness Gulab. The report of polygraphic examinations are yet to be received. 35. The Honle High Court, vide order passed by Honle Justice Gyan Sudha Misra, (now Supreme Court Judge), is as follows:- n order to test the justification of the cause for moving this Court, the respondents were called upon by way of a show cause notice and the relevant case diary in the matter was also summoned. A perusal of the same clearly indicates that although there are sufficient material available on record regarding the allegation of dis-appearance of the child from the Hospital, neither any charge-sheet has been submitted nor final report has been submitted in the matter. It was expected of the respondents to act either way according to law, but the matter is at a stand-still without any result of the investigation. The suffering of the petitioner, under the circumstances, can very well be appreciated by this Court although it would be appropriate at this stage to express any opinion on the merits of the case, but it is difficult to refrain from recording, on perusal of the police case diary that the investigation in the matter is far from satisfactory, as the investigating officer has failed to come to any conclusion, one way or the other. The prayer of the petitioner, therefore, to transfer the investigation to any other authority, than the State Police, is fit to be accepted and accordingly, the investigation of the case bearing FIR No.304/96, Police Station, Clock Tower, Ajmer, be handed over to the CID (Crime Branch), for a fair and just investigation in the matter and the petitioner, on demand, shall be furnished all relevant information in regard to the investigation of the case regarding disappearance of her child from the hospital and, if necessary, she will be at liberty to bring it to the notice of this Court, if the investigation conducted by the CID (Crime Branch) is defective, in any manner. The petitioner, thus, will further be at liberty to file a fresh writ petition, in case she is dissatisfied with the investigation, in any manner 36. The evidence discussed above clearly goes to show that after 3.00AM, neither OP2 nor OP3 were present in the Nursery Room. The Nursery Room was left without guidance of any Nurse. Both the Nurses had to run to the Labour Room for attending the delivery. The evidence shows that Sweeper was asked to look after the children in Nursery. The Nursery was left at the mercy of a Sweeper. The presence of 2-3 unknown persons was also not denied. It clearly goes to show that how did those unauthorized persons enter into the hospital. It proves the negligence on the part of the OP1. OP No.2 should not have left the room without the presence of any other Nurse. In absence of any Nurse, invitation was given to people to commit such heinous offence. Nobody was present in the Nursery room from 3.00AM to 7.00AM. The story that OP2 went to bring the child at 5.00AM is made out of whole cloth. The question of her coming back without the child could not have possibly arisen. She did not make any serious attempt to take back the child. This is an eyewash to cover their own negligence. If OP2 was feeling unwell, some substitute Nurse should have replaced her. There is no inkling of involvement of mother of complainant No.1, in the letter dated 27.11.96 written by Sr.Clara. It appears to be an afterthought to mislead the Law. There is a particular time for the visitors to come to the hospital for seeing their ailing kith and kin. It is difficult to fathom as to how the two unknown persons or somebody else got the entry at that odd hour, in such a renowned hospital. Perhaps the Nursery people and the guards were having slumber. Other cases of deaths of infants are also cited in the written statement of the OP1 itself, in this so-called renowned hospital. With such like incidents, the importance of an Institution evanesces. The argument of the OP1 does seem attractive at the first sight, but loses its sheen, the moment examined on touchstone of such like incidents. The negligence of the hospital is writ large on this incident. Had the Nurses been vigilant, they would not have allowed this incident to happen. It is also clear that the police has tried to smother a crime. Consequently, the negligence on the part of the OP1 stands proved. 37. The following authorities neatly dovetail with this view. A) In Jacob Mathew Vs. State of Punjab, (2005) 6 SCC 1, Page 1388, Para 27, wherein the Honle Apex court has held, as under:- Res Ipsa Loquitor is a rule of evidence which in reality belongs to the Law of Tort. Inference as to negligence may be drawn from proved circumstances by applying the rule if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant Further, it has held that : egligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three : uty reachand esulting damage B) In V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (2010) 5 SCC 513, at page 532, Para 50, it was held by the Honle Apex court that : n a case where negligence is evident, the principle of es ipsa loquituroperates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the Respondent to prove that he has taken care and done his duty to repel the charge of negligence 38. It must be borne in mind that both the complainants have signed in English language. However, mother of complainant No. 1 has signed in the local language. In view of statements made by the complainants the evidence of mother of complainant, which is also similar, does not make any dent upon the complainantscase. The facts are stubborn things. The fact that the infant was kidnapped or stolen cannot be removed, demolished or reversed by any high-flown rhetoric. ON QUANTUM OF COMPENSATION 39. Learned counsel for the OP1 has cited two authorities in support of this case. First of all, he cited the Apex court authority in Lata Wadhwa & Ors., Vs. State of Bihar & Ors., W.P (C ) No. 232 of 1991, decided on 16.08.2001, wherein, in n accident case compensation in the sum of Rs.4.10 lakhs for each of the claimants of the deceased children was granted. In another case, in National Insurance Co. Ltd. Vs.Kusuma & Anr., 2011 RAR 204 (SC), compensation in the sum of Rs.1,80,000/-, for an unborn child was granted. Learned counsel for the OP1 vehemently argued that the compensation claimed by the complainants is on the higher side. He also pointed out that they have not given any criteria for giving such a huge amount of compensation. 40. We find force in this argument in a measure. The learned counsel for the Complainants, on the other hand, cited an authority reported in Malay Kumar Ganguly Vs. Dr.Sukumar Mukherjee & Ors., (2009) 9 SCC 221, wherein the Honle Apex Court held: ndisputably, grant of compensation, involving an accident is within the realm of law of torts. It is based on the principle of restitution in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been, if he had not sustained the wrong. [See Livingstone Vs. Rawyards Coal Co.[(1880) 5 AC 25] Damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. & quot: The Commission must, therefore, while arriving at the adequate compensation bear in mind all these relevant facts and circumstances 41. The counsel for the complainants has also cited Ruby (Chandra) Dutta Vs. United India Insurance Co. Ltd., (2011) 11 SCC 269, Page 275, Para 26, wherein the Honle Apex has held: t is correct that the Act does not contain any provision for grant of interest, but on account of catena of cases of this Court that interest can still be awarded, taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice between the parties. We accordingly do so. This principle is based upon justice, equity and good conscience, which would certainly authorize us to grant interest, otherwise, the very purpose of awarding compensation to the appellant would be defeated. We accordingly deem it fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till it is actually paid 42. Some of the arguments urged by the learned counsel for the OP1 are not coherent. This Commission cannot waft aside this issue as venial. The Commission has to be clear eyed about what realistically these facts are leading to. The case of an accident is altogether different from this case. The case of unborn child cannot be equated with such an unforgivable sin. In kidnapping cases, ensrea is the main point. It is well known that kidnappers of the new born infants are the lowest scum on this earth. It is but clear that security men consists of lame duck officers. The hospital has handled the situation in a very maladroit way. The negligence in an accident case cannot be equated with such kind of negligence. It is well said that egligence is the rust of soulthat corrodes through, all best resolves. Let the hospital may say that this is the best hospital on the Earth, yet, this case clearly goes to show what is the position of their hospital. OP 2 & 3 were grafted in a serious trust but negligence on their part is a crime. 43. This was the credit side for the Complainants but their debit side certainly goes to weaken their case. It is strange that the complainants have not led any evidence to show their status. The criteria for awarding compensation is to find out the family background and status and pass the orders, accordingly. Although, the complainants have not led specific evidence in this regard, yet, there are some facts and circumstances from where we can gauge the status of the complainantsfamily. First of all they did not go to the Government Hospital but went to OP1, which is a private hospital where naturally high fee is to be paid. It is also clear that complainant No.1 was admitted to a private ward. It is also clear that in order to search the child, the complainants took all the steps. They went to Honle High Court, approached the Media as well as the Police. According to them they had spent a sum of Rs.2,60,000/- towards expenses incurred for carrying out the search of the child. The OP1 did not pick up a conflict with the said piece of evidence. It is also apparent that the complainants have been contesting the case upto the Honle Supreme Court of India. The SLP filed by the complainants before the Honle Supreme Court was dismissed at least for two times. The following paras from the affidavit of Complainant No. 1, are significant: . I say that the complainants were married to each other on 04.12.1994. I say that prior to my marriage, I was residing in Ajmer with my parents at 89/16, Purani Mandi, Ajmer. I say that my maternal family have been residing in the city of Ajmer for over hundred yearsand continue to do so. I say that after my marriage, I started residing in Mumbai. I say that my pregnancy was a tremendous source of joy in complainant No.2 family as after 20 yearsthere was going to be a birth of a child in their family. 15. I say that the complainants wrote a letter dated 23.11.1996, a copy of which is annexed hereto and marked as Exhibit C to the Administrator of the Opponent No.1, wherein the deponent brother recorded the fact that the child was kidnapped and/or missing from the Opponent No.1 hospital due to their negligence. I say that the Opponents, in reply to the aforesaid letter, the Administrator vide her letter dated 27.11.96, a copy of which is annexed hereto and marked as Exhibit D, admitted that the child was found missing from the premises of the Opponent hospital. I say that finally on 23.11.96 the deponent took discharge from the said hospital, specifically informing the Opponents that the discharge was being taken without the child. I say that all the bills and dues of the said hospital were paid by the complainants at the time of discharge. I say that the complainants crave leave to refer and rely upon the bill paid to the Opponents by the complainants for the service rendered to both the deponent and the child. 16. I say that the deponent family and complainant no. 2 and other members of the family sought the help of the media in searching for the missing child. I say that the aforesaid incident was reported in various publications including the Dainik Navjyoti, Ajmer, Rahtra Doot, Maruprahar, Rajasthan Patrika, Dainik Bhaskar, Dainik Navjyoti, Ajmer Special and Mahanagar. The complainant craves leave to refer to and rely upon the abovementioned newspapers articles. I say that the complainant family made several representations written and verbal to various authorities including the District Collector, Ajmer, Chief Minister, Rajasthan, the Home Minister and requested for an expedited investigation of the aforesaid matter as after a particular period, it may not be possible for them to identify the child. The complainant craves leave to refer to and rely upon the said representations. I say that the complainant family also filed a complaint with the Missing Persons Squad, New Delhi, the report in respect of which was submitted on 04.04.97. I say that the complainant family also sought the assistance of the electronic media and the aforesaid incident was reported on elplineon the National Network of Zee Television and also EL TV. The complainants crave leave to refer and rely upon the recordings of the aforesaid program 44. It is, however, clear that the complainants have not adduced specific evidence on the status of the family. However, taking into consideration the above said facts and the law laid down by the Apex court, we allow the complaint and hereby pass the following order: A) The complainants will get Rs.2,60,000/- which they have spent upon the investigation of this case. They will also get interest @ 9% p.a., from the date of filing of this complaint, till its recovery; B) The demand raised by the complainants to pay a sum of Rs.75,00,000/- is on the higher side. Keeping in view the above stated status of the family, we grant a compensation in the sum of Rs.10,00,000/- only. It will carry interest @ 9% p.a. w.e.f. the date of filing of this complaint, till its recovery; C) Now, we advert to the litigation charges. The complaint was delayed by the OP1 for more than 16 years It is said that ustice delayed is not only Justice Denied It is also Justice circumvented, Justice mocked and the System of Justice undermined. It is pathetic that such like hospitals are still allowed to run, even after such like incidents. Keeping all these facts in view, we award litigation charges and harassment/mental agony, during the pendency of the case in the sum of Rs.3,00,000/-, in favour of the complainants and against OP1, which will be paid within one month, otherwise, it will carry interest @ 9% p.a., till its recovery. D) The OPs 2 & 3 were working at the behest of directions received from their seniors. It was the hospital which was calling the shots. They were present and not absent. We attribute no fault at their doors and dismiss the complaint against them.