Chanchal Oswal vs Santokba Durlabhji Memorial Hospital

THIS is a complaint filed by Smt. Chanchal Oswal under Sect. 12 read with Sect. 17(a)(i) of the Consumer Protection Act, 1986 (''the Act'' herein) for awarding Rs. 9,69,500/ - together with interest @ 18% p.a. from the date of the filing of the complaint until realisation. The amount was claimed on account of the negligence of opposite parties (Santokba Durlabhaji Memorial Hospital, Jaipur and Dr. Nemish A. Shah, Bombay). The complaint was filed on January 8, 1991. It was alleged by the complainant that she was suffering from chest pain and heart trouble. She consulted various doctors but she was not relieved from the suffering. Ultimately she consulted Dr. Ashok Jain working in opposite party No. 1 and paid the fees. It may be stated that opposite party No. 1 is a hospital which provides medical facilities and services connected therewith on payment of charges. Dr. Ashok Jain advised that she will have to undergo a heart operation which can be performed through opposite party No. 1. Thereafter she contacted the officers of opposite party No. 1. She was told that the services of a heart surgeon can be made available to her on payment of Rs. 7500/ - as fees of the doctor as well hospital charges. She deposited Rs. 7500/ - with opposite party No. 1. Receipt No. 90561 dated 13.12.89 was issued to her. On that day she was admitted in the hospital by the officers of opposite party No. 1. Blood, urine, stool were examined. Besides these some other tests were also performed. She was told that her heart operation would be done but later on as opposite party No. 2 was not available she was discharged from hospital on 16.12.89. Thereafter she was again admitted on 15.1.90 where again various tests were performed. Heart operation was done by opposite party No. 2 on 20.1.90. The complainant has alleged that after operation on the same day she felt some pain in the heart. She stated about this to opposite party No. 2. On this X -ray was taken on the same day. In the X -ray there was some clot on the part of the lungs but instead of giving any treatment opposite party No. 2 told the complainant that she should not worry and everything will be alright within a day or two. Subsequently various X -rays were taken and in every X -ray the clot or shade was present. The complainant has alleged that nothing was done either by opposite party No. 1 or opposite party No. 2 to remove the same and she was ultimately discharged from the hospital on 10.2.90. After discharge the complainant felt continuous pain in the chest. She got herself examined by the various doctors and on their advise, X -rays of the complainant were taken. X -ray report revealed that there is some foreign particle inside the body which is effecting the lungs of the complainant. After receiving this report she contacted heart specialists in Bombay and Bangalore. She was advised that she will have to undergo an operation to find out as to what was the real problem with her. She went to Wockhardt Medical and Research Centre, Bangalore. She was admitted in the hospital on 8.7.90. Her operation was performed on July 9, 1990. During the operation her chest was opened. It was found that a piece of surgical gauze was left inside over the lungs. She was informed by the doctor who operated her in Bangalore that it was probably left behind during the last surgery. She remained in the hospital at Bangalore upto 17.7.90 and on that day she was discharged. The complainant has alleged that the amount that was demanded was deposited by her with opposite party No. 1 but proper services were not provided to her. As a result of which she was again required to undergo second operation which resulted in financial loss as well as mental agony. In para 12 of the complaint she has given the details of the amounts under five heads which are: 1. Fees paid to the doctors for consultation Rs. 3,000/ - 2. Expenses of attendant who accompanied her to Bombay and Bangalore Rs. 25,800/ - 3. Expenses for investigation, tests report etc. Rs. 5,700/ - 4. Expenses incurred by her in connection with the operation at Bangalore inclusive of cost of medicines Rs. 35,000/ - 5. Compensation for mental torture and bodily pain to the complainant and her family Rs. 9,00,000/ - Total Rs. 9,69,500/ -

IT was prayed by her in the complaint that opposite parties may be directed to pay the aforesaid amount alongwith interest @ 18% p.a. from the date of filing the complaint until realisation. Alongwith the complaint she filed photo stat copies of 34 documents as detailed in the list appended to the complaint. The material documents will be dealt with herein after as and when necessary. Opposite Party No. 1 filed the version of the case opposing the complaint. It was pleaded that the hospital of opposite party No. 1 is run on no profit no loss basis. It was submitted that the complainant of her own accord got herself examined by Dr. Ashok Jain after paying the fees. Dr. Ashok Jain as physician after examination, advised her to consult Cardiac Surgeon. The complainant herself desired to be operated upon by opposite party No. 2. This decision was taken by her of her own accord and she deposited Rs. 7500/ -. The amount which was deposited by her was for doctors fees, room, cost of medicines etc. Beside denying the various averments and disowning the liability opposite party No. 1 raised preliminary objection about the maintainability of the complaint on the ground that the complainant was not a consumer of opposite party No. 1. That no complaint lay under the Act. In other words, the preliminary objections are to the effect that the complaint is not maintainable because the medical facilities provided by opposite party No. 1 are beyond the scope of Sect. 2(1)(o) of the Act. There was no relationship between the complainant and opposite party No. 1 of consumer and the acts of the opposite parties do not amount to service as mentioned in the Act. An averment was made against Dr. Ashok Jain who was not impleaded as a party. It was submitted, he being a necessary party having not been joined, the complaint deserves to be dismissed.

OPPOSITE Party No. 2 filed a separate version of the case. He pleaded ignorance about the averments pertaining to opposite party No. 1 and Dr. Ashok Jain. The complainant did not meet on any occasion to opposite party No. 2. He did not give any appointment or date for performing operation on 13.12.89. It was admitted that the complainant was operated by him on 20.1.90. She was suffering from pheomatic heart disease i.e. narrowing of one of the heart valve. She consulted Dr. Ashok Jain and was advised surgery. She was operated on 20.1.90 and a closed Mitrol Commissurotonny (Dilation of value) was carried out successfully. Opposite Party No. 2 visited Jaipur next on 15.2.90 and had seen the complainant on 17.2.90. According to opposite party No. 2 the post operative X -ray examination carried out a opposite party No. 1 showed a collection of fluid on the left side of the chest. Opposite Party No. 2 advised her operation to remove the fluid. She, however, refused to undergo a second operation. Second operation would have been carried out free of charge as is the usual practice with all such cases. She was told that the operation would be carried out free of charge. It was pleaded that in the post operative treatment, the instructions were mentioned in the discharge ticket for proper follow up, but the complainant has not produced the discharge ticket. He pleaded ignorance with respect to the consultation of other doctors or the advice given. Facts relating to the operation at Bangalore were denied. It was specifically stated in the version of the case that opposite party No. 2 had no privity of contract with the complainant. It was stated that he has been visiting opposite party No. 1 hospital almost once a month for attending to and performing heart operations of the patients admitted in the said hospital. So far as the complainant in concerned, no fees were settled by him. No charges were paid by the complainant to him and it is the hospital which makes payment to opposite party No. 2. In para 12 of the version of the case it was pleaded as under: - ''It is pertinent to mention that the answering opposite party had accepted to come to operate for opposite party No. 1 on greatly concessional fee since opposite party No. 1 is run by a charitable trust. The complainant has no ground for complaint as the heart operation was successful and she had not made any complaint regarding the good result she had. The complainant has now having a normal heart and having normal life. The subsequent suffering if any of the complainant were because she did not follow the advice given by answering opposite party on 17.2.1990.''

THE preliminary objections raised by the opposite party in the version of the case were that the claim of the complainant is based on tortuous liability which is not within the purview of the redressal commission. Besides this the following objections were also taken: - (1) that facility of operation is not included in the definition of service rendered as it was a matter of skill. (2) that the complainant has not hired the services of opposite party No. 2 for consideration, for, the opposite party No. 2 has only an arrangement with opposite party No. 1 to perform operations of the patients admitted in the hospital (opposite party No. 1). (3) that the heart operation was successful and her subsequent alleged suffering was because she did not follow the advice given to her by opposite party No. 2 for the second operation for removing the fluid developed in her left chest. (4) that the complainant has deliberately inflated the claim to fantastic amount without any burden on her part of payment of court fee.

It was, therefore, submitted that the complaint may be dismissed against opposite party No. 2.

DR . B.D. Garg submitted affidavit in support of the version of the case filed on behalf of opposite party No. 1. The affidavit was sworn on 18.7.81. On behalf of opposite party No. 2 Dr. Nemish A. Shah submitted his affidavit dated 2.8.91 in support of the version of the case. The complainant submitted her affidavit on 4.9.91 in support of the complaint. The husband of the complainant has also filed affidavit on 4.9.91 supporting the averments made in the complainant. Besides the aforesaid affidavits no other oral evidence was produced by any of the parties. As stated hereinabove the complainant submitted photo stat copies of 34 documents details of which are mentioned in the list appended with the complaint. Learned Counsel for the complainant submitted written arguments on 13.2.92. On behalf of opposite party No. 1 and opposite party No. 2 written arguments were also submitted. Learned Counsel appearing for the parties were also permitted to make oral submissions besides the written arguments on 7.3.92.

ON behalf of the complainant it was stated that the opposite parties had charged requisite fees from the complainant but failed to provide proper services as a result of which she had to undergo second operation. It was urged that there is no dispute that the complainant was operated by opposite party No. 2 in the hospital of opposite party No. 1 for which a sum of Rs. 7500/ - was charged, so, the complainant had hired the services of opposite parties for consideration. The opposite parties were bound to render proper service to the complainant free from any defect or deficiency. On the basis of the affidavits filed on behalf of the complainant it was submitted that after being operated upon there was continuous pain in the chest of the complainant and, therefore, she had to get herself examined by the various doctors and from the X -ray reports it was found that there was some foreign body (foreign particle) which had affected the lungs of the complainant. We have carefully considered the Discharge Summary Card dated 17.7.90 of Wockhardt Medical and Research Centre, Receipt No. 6310 dated 14.6.90 of Bangalore Ultrasound and Research Centre about the abdominal sonography, Jubilee X -ray, Ultrasound Institute report dated 8.5.90 C.T. Scan Chest Report (Camdark), Bangalore and the other relevant documents. On the basis of the reports it was submitted that there was negeligence on the part of the doccor (opposite party No. 2) who performed the operation inasmuch as when her operation was performed at Bangalore on 9.7.90 and when her chest was opened it was found that a piece of surgical gauze was left inside over the lungs and the operating doctor informed him that it was left behind probably during the last surgery. It was also mentioned in the written arguments that it is an admitted fact that some clots were present on the left side of the chest which were detected on January 20, 1990 but no efforts were made by the opposite party to remove the same and instead of removing the same she was discharged from the hospital on 10.2.90 which according to the complainant shows a culpable negligence. From the reports of Wockhardt Hospital, Bangalore, Ultrasound and Research Centre, Jubilee X -ray Ultrasound Institute, Bangalore and Camdark Medical Research Centre, Bangalore, it was pressed by the learned Counsel for the complainant that some foreign body was left inside the chest of the complainant and when she was operated by Wockhardt Medical and Research Centre on 9.7.90 this foreign body was found lying inside. Inference was sought to be drawn that opposite party No. 2 while performing operation at the hospital of opposite party No. 1 acted rashly, negligently and left the surgical gauze inside the body of the complainant which affected the lungs of the complainant and thus the deficiency in service rendered by the opposite parties is established.

ON behalf of opposite party No. 1 it was submitted that no averment whatsoever has been made by the complainant in respect of it and that opposite party No. 2 was not the employee of opposite party No. 1. It was also argued that no grievance or complaint was raised by the complainant to opposite party No. 1 and had such complaint been made a free medical and on humanitarian ground would have been afforded to her. It was submitted that opposite party No. 1 had arranged the major operation of the complainant by a doctor preferred by her at a nominal cost of Rs. 7500/ -. Thus putting a huge claim regarding spending money for operation and consultation at Bangalore for a minor operation is not believable. It was also contended that there is no evidence to support the averment that the second operation was done at Bangalore by the person who is said to have operated. The complainant had not submitted any such affidavit and the photo stat copies of the documents are not public documents and they have not been proved by filing the affidavit or other evidence on oath who have prepared them. Besides these the genuineness of the documents is doubtful.

ON behalf of opposite party No. 2 it was argued that there was no privity of contract between the complainant and opposite party No. 2 nor any consideration was paid by the complainant to opposite party No. 2. Opposite Party No. 2 according to him is not in employment of opposite party No. 1, for, he is a visiting surgeon and he has only arrangement with opposite party No. 1 to perform operation of the patients admitted in the hospital. Therefore, it cannot be said that the complainant has hired the services of opposite party No. 2 and as such the complainant is not a consumer. Performance of the operation by a surgeon is not a service as defined in Sect. 2(1)(o) of the Act inasmuch as contract of personal service is expressly excluded from the definition of service and that the performance of a surgical operation is even otherwise a matter involving personal skill and expertise. The case of the complainant at the most is a claim for liability for tort of negligence so far as opposite party No. 2 is concerned and, therefore, the complaint is not maintainable. The complainant has not complained that the heart operation was defective as such, for, she has no ground for complaint as the heart operation was successfully performed and her subsequent alleged suffering was because the complainant did not follow the advice given to her by opposite party No. 2 for the second operation for removing the fluid developed in her left chest. The complainant refused surgery which would have immediately cured her. The second operation suggested by opposite party No. 2 after seeing her post operative X -rays, was for removing the fluid that had collected in her chest. The second operation would have been carried out free of charge as is usual practice in such cases and the complainant was informed that the operation would be carried out free of charge. The complainant herself delayed the suggested operation for five months and as such she is not entitled to any compensation. Both the opposite parties have also raised a contention that highly disputed questions of facts which are of complicated nature are involved which would require oral evidence of the parties as also of the surgeons who might have performed operation at Bangalore and also of connected doctors/experts. The suggestion of the complainant that some surgical gauze was left in her body and that the same was removed at the time of the operation performed at Bangalore cannot be decided without taking oral evidence of the surgical team and of the surgeon who had performed the operation upon the complainant at Bangalore, and that the oral examination and cross examination of witnesses would be necessary. The question that surgical gauze was left in her body at the time of operation which was done by opposite party No. 2 is also a disputed question which cannot be decided in a summary enquiry. An objection was taken that in the affidavits filed by the complainant and her husband no reference to any of the documents has been made and, therefore, the discharge certificate of the complainant from Bangalore Hospital or other reports cannot be considered by the Commission as the complainant has not stated anything about these in her affidavits. The alleged surgical gauze has not been subjected to chemical examination and no report of any chemical expert has been submitted to show the nature of the material allegedly taken out from her chest. The documents submitted by the complainant are not public documents. From the submissions made by the learned Counsel for the parties, the following questions emerge for our consideration: - (1) Whether the complainant is a consumer qua opposite party No. 1 and opposite party No. 2? (2) Whether there was negligence on the part of opposite party No. 2 as a surgical gauze was in her chest which was left there while performing the complainants operation? (3) If question No. 2 is decided in favour of the complainant, to what compensation is she entitled and who are liable to pay the same to the complainant? We propose to deal with these questions and seriatim. Re. question No. 1:

Opposite Party No. 1 is not the government hospital. It makes no difference that the hospital is run on no profit and no loss basis. The case of the complainant is that after depositing the fees she showed herself to Dr. Ashok Jain who advised her for investigation. The case of opposite party No. 1 is that she of her own accord showed herself to Dr. Ashok Jain and he after investigation advised her to show herself to a Cardiac Surgeon. According to opposite party No. 1 the complainant of her own accord deposited Rs. 7500/ - for the operation vide receipt No. 90361 dated 13.12.89 and registration slip for a private ward was issued to her. So it is clear that a sum of Rs. 7500/ - was deposited by the complainant for availing of the services which opposite party No. 1 undertook to perform by getting her operated by a doctor. Opposite Party No. 1 has merely stated that the complainant desired to be operated by Dr. Nemish A. Shah and after taking the decision she decided to deposit Rs. 7500/ - and according to opposite party No. 1 this amount included doctors fees, arrangement for room, cost of medicines etc. It is correct that so far as opposite party No. 2 is concerned, there was no direct contact with the complainant for performing operation and it is the case of both the parties. Opposite Party No. 2 has admitted in the version of the case that he had accepted to come to operate for opposite party No. 1 on greatly concessional fee since opposite party No. 1 is run by a charitable trust. Opposite Party No. 2 agree to perform the complainants operation and for hiring of his services, opposite party No. 1 made payment to him out of the amount deposited by the complainant. The fact remains that opposite party No. 1 decided to make available the services of a doctor for performing the operation. Consideration was paid for hiring the services. The complainant has hired the services of opposite party No. 1 for consideration as it undertook to provide all facilities relating to the operation of the complainant and to get the operation done and according to opposite party No. 1 the fee was to be paid to the doctor and it is not the case of opposite party No. 2 that opposite party No. 1 had not paid any amount to him for the performance of operation of the complainant. From the facts stated above, it is clear that the services of opposite parties Nos. 1 and 2 were hired and there was consideration for hiring the service. The complainant is a consumer qua opposite parties Nos. 1 and 2 within the meaning of Sec. 2(1 )(d) of the Act. Question No. 1 formulated by us is, therefore, answered in favour of the complainant and against the opposite parties. Re. Question No. 2:

THE complainant has to establish that there was negligence on the part of the opposite party No. 2 while performing the complainants operation. The complainant was suffering from Pheomatic heart disease (narrow of one of the heart valve). She was operated on 20.1.90. A close Mitrol Commissurotommy (Dilation of valve) was carried out. According to opposite party No. 2 the heart operation was successful and the complainant had not made any complaint regarding the good result she had. Opposite Party No. 2 had seen the complainant on 17.2.90 at Jaipur. According to him the post operative X -ray examinations carried out at opposite party No. 1 showed a collection of fluid on the left side of the chest and so opposite party No. 2 advised the complainant for operation to remove the fluid. The complainant, however, refused the second operation which could be done free of charge. The heart operation of the complainant was successful and according to opposite party No. 2 the alleged suffering was as she did not follow the advice given to her by opposite party No. 2 for the second operation for removing the fluid development in her left chest. The complaint of the complainant is that after operation the same day the complainant felt some pain in the heart which she disclosed to opposite party No. 2 on which her X -ray was taken on the same day. According to her in this X -ray there was some clot on the part of the lungs but no treatment was given and she was told not to worry. Thereafter several X -rays were taken but the clot or shadow was present but nothing was done to remove the same. She was discharged from the Hospital on 10.2.90. Pain in the chest was confirmed. She consulted doctors and on their advice, X -rays were taken and it was found that some foreign particle was inside the body which was affecting the lungs. Thereafter she consulted heart specialists at Bombay and Bangalore. She was advised operation. She went to Wockhardt Medical Research Institute. There she was operated on 9.7.90. Her chest was operated. It was found that a piece of surgical gauze was left inside over lungs and she was informed by the operating doctor that it was probably left behind during the last surgery. She was discharged on only 17, 1990. The complainant is required to prove that the alleged surgical gauze was left in her body at the time of the operation performed by opposite party No. 2. The documents submitted by themselves do not prove the above facts. They are not public documents. No independent oral evidence whatsoever has been produced by the complainant in this connection. The complainant has not made any reference to these documents in her affidavit. The affidavit of the doctor who operated her at Bangalore has not been submitted to show that surgical gauze was taken out from her body at the time of operation. The complainant was under unaesthesia at the time of operation. Her husband was not in the theatre at that time. Surgical gauze taken out has neither been preserved nor produced nor submitted for chemical analysis. The affidavits of the medical officers who have prepared the Discharge Certificate, operation note and other reports have not been filed. We have carefully considered the documents particularly the Discharge Summary, Card -columns Diagnosis and finding contained in the operation notes. There is nothing to indicate that a surgical gauze was left inside the body of complainant after the operation. The case set up by opposite party No. 2 is that the post operative X -ray examinations carried out at opposite party No. 1 showed a collection of fluid on the left side of the chest and as such opposite party No. 2 advised operation to remove this fluid. The complainant, how ever, refused the second operation which could be performed free of charge and she was told to this effect. It has also been mentioned by opposite party No. 2 that in the post operative treatment along with the instructions mentioned in the discharge ticket for proper follow up. The discharge ticket has not been produced. The subsequent suffering, if any, is due to the fact that she did not follow the advice given by opposite party No. 2. The complainant is said to have delayed the operation suggested by opposite party No. 2 for five months. Opposite Party No. 2 has denied that any surgical gauze was left in the body after the operation for every thing was cleared. After operation she was X -rayed five times. The heart operation is said to be successful as she has not raised any grievance about the operation.

BEFORE we proceed further it will be proper to dispose of any objection that opposite party No. 2 rendered only personal service to the complainant for it was a contract of personal service and a contract personal service has been exempted. This need not detain us for long. This question was examined in by the National Commission in I (1992) CPJ 302 (NC) was observed as under: - ''19. We agree with the terse observation of the State Commission that while a Medical Officers service may loosely be called personal, it will be incorrect, infelicitous and crude to describe it as personal service. A contract of personal service involves a master and servant relationship which is wholly different from a medical doctor -patient relationship and in our opinion it will be totally wrong to call the service rendered by a medical doctor to his patients as ''personal service coming within the exempted category mentioned in Section 2(1)(o). 20. In the case of hospitals which provide treatment to patients for payment we are unable to see how there is any element of personal service involved in such an arrangement. When a patient goes to such a hospital and avails himself of the facility of treatment on payment of consideration, he is dealing only with an institution carrying on the activity of providing medical service for payment and no element of personal service does enter into the picture in such a case. The hospital may have its own doctors, consultants etc. for treating the patients admitted to its care but ordinarily it is not likely that there will be privity of relationship between the person who gets admitted in the institution and the doctors who may be on the staff of the institution or may be visiting consultants there. 21. In the light of the foregoing discussion, we have no hesitation to uphold the finding of the State Commission that the activity of providing medical assistance for payment carried on by hospitals and members of the medical professsion falls within the scope of the expression service as defined in Section 2(1)(o) of the Act and that in the event of any deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction.'' In view of the authoritative pronouncements, it is not open to the opposite parties to contend that it -was a contract of personal service.

In these circumstances, we have to determine whether there was negligence on the part of opposite party No. 2 as a surgical gauze was left inside the body at the time of operation. It will be useful to refer to the well recognised principles in regard to competence of medical person. The law does not require highest degree of competence from a medical person, for, he is answerable when he falls below the standard of a personally competent medical person or he departs from normal course. We are fortified in our view from (1957) II All. ER. 118.

IN regard to proof of professional negligence, Lord Denning in Kucks v. Colo (1968) 118 New ER 469 observed as under: - ''a charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations or medical treatment. A Doctor as not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for in error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his fields so much so that his conduct might be deserving of censure of in executable.''

THE Supreme Court in A.I.R. 1969 SC 128 has laid the following factum which may be read with advantage : - ''The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case in what the law requires: (ct. Halsburys Laws of England, 3rd ed. vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.''

While considering the question of negligence, the principles laid down in the above authorities will be borne in mind. There is no grievance of the complainant that the operation which was performed by opposite party No. 2 was not successful. The subsequent alleged suffering as appears from the affidavit of opposite party No. 2 was that she did not follow the advice given to her by opposite party No. 2 for second operation for removing the fluid developed in her left chest and she refused surgery which could have immediately cured her. This has -not been controverted by the complainant. There is no evidence on record to prove that during the operation by opposite party No. 2 a surgical guaze was left in the chest which was removed by a second operation at Bangalore. It is firmly established that when a person undergoes surgical operation, there is inherent risk and likelihood of post operative complications. There is not the slightest evidence of any deficiency in service and consequent negligence of opposite party No. 2 when he performed operation of the complainant. Question No. 2 formulated herein above is, therefore, answered against the complainant and in favour of the opposite parties. Re Question No. 3:

THE complainant has claimed a sum of Rs. 9,69,500/ - as compensation. The details of the amounts are contained in para 12 of the complaint. The complainant has submitted Receipt No. 90561 dated 13.12.89 showing that Rs. 7,500/ - were deposited with opposite party No.1. Besides this, she has produced cash memos of Wockhardt Medical and Research Centre dated 17.7.90 and Receipt No. R21 for Rs. 15,000/ - dated 7.7.90 as the expenses that were incurred by her in connection with the operation. Besides these amounts, she has also claimed expenses for cost of medicines etc. A sum of Rs. 9,00,000/ - has been claimed for mental agony and harassment. Compensation can only be awarded to a consumer on the ground of the loss or injury suffered by the complainant on account of the negligence of the opposite party. Under Section 14(1)(d), all this has to be established by cogent and convincing evidence. We have already held while deciding question No. 2 that there was no negligence of opposite party No. 2 while performing the complainants operation at Jaipur and the version of the complainant that a surgical gauze was left inside chest while performing the operation, has not been established. In view of our answer to question No. 2, the complainant is not entitled to any compensation under Section 14(1)(d) of the Act. It may be stated that the complainant has claimed compensation for inconvenience and mental torture caused to her and her relatives (who have not been named), no such compensation can be awarded under the Act. The complainant has failed to make out any case for the grant of reliefs prayed for by her against the opposite parties. Question No. 3 is, therefore, answered in favour of the opposite parties and against the complainant. In view of our decision on question Nos. 2 and 3, the complainant is not entitled to any relief. The complaint shall stand dismissed. Parties to bear their own costs of this complaint. Complaint dismissed.