Archna vs TARUN KUMAR VOHRA

IT appears to be a very hard and pathetic case. In spite of having been subjected to ultra sound examination the respondent doctor is alleged to have not detected congenital anomaly in the limb of the unborn child and as a result the appellant-woman gave birth to a male child whose left upper limb of forearm was missing. The child is now a handicapped child and has to live for whole of life without the forearm. Feeling aggrieved the appellant filed the instant complaint before the District Forum seeking compensation of Rs. 10 lacs.

HOWEVER, vide impugned order dated 12th September, 2005, passed by the District Forum, the complaint was dismissed on the ground that anomaly of limbs is congenital anomaly and opinion of Diwan Chand Satya Pal Aggarwal Imaging Research Centre in respect of some other person that ''the anomalies in relation to foetal heart and limbs are extremely difficult to detect due to constantly changing position of foetus and overlapping of its various parts'' and also on the basis of ultra sound report dated 26. 3. 2003 of LNJP Hospital which does not show congenital anomaly. Feeling aggrieved appellant has preferred this appeal.

The grievance of the appellant is that the District Forum has not at all considered the ''international Medical Literature'' on the point that it is very easy to detect any anomaly in the limb of unborn child from the ultra sound result and further the District Forum has based its decision upon the report of some other person given by Dewan Chand Satya Pal Aggarwal Imaging Centre which was not relevant in the given facts and circumstances of the case. In this regard appellant has referred to and relied upon the medical literature and several other documents.

IN our view, the controversy involved in the case could not have been settled by the District Forum in the manner it has done as it requires expert medical opinion by a Board of Doctors on the point ''whether ultra sound is 100% fool proof method'' or ''whether there was any defect in the machine of ultra sound that resulted in the wrong report'' or ''whether it was due to wrong opinion of the doctor examining ultra sound report that resulted in the birth of child without any forearm or one of the arms''. Merely because any test or any system is not 100% fool proof does not mean that every case gets covered under the guise that it does not yield 100% fool proof result. Every plea has to be tested on facts and circumstances of the case and on the basis of material before the Forum. In our view this is a case which needs to be examined on the basis of documents by an expert body as it has affected the whole life of a small boy.

IN the result, we allow the appeal, set aside the impugned order and send back the matter to the District Forum for getting an opinion by forwarding all the material produced by both the parties including the ultra sound report and thereafter decide the matter afresh on the basis of the medical practices and procedures established over the period as culled from the international medical literature referred to and relied upon by the Counsel for the appellant annexed with the appeal. Parties shall appear before the District Forum on 18. 2. 2008 for the aforesaid purpose. Appeal is disposed of in aforesaid terms.

A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter file be consigned to Record Room. Appeal allowed.