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Judgment
Mandhata Singh, J.—No one appears on behalf of the appellant.
In brief negligence of appellant was reported by Opposite Party No. 2 by filing Complaint Case No. 124 of 1998. The Investigating Officer found the allegation false and submitted the final form. The allegation was to the effect that complainant''s daughter-in-law was admitted to the appellant''s dispensary for delivery. Every assurance was given on her behalf to have care of the patient but complainant and his family members approached the Opposite Party No. 2 at about 12.00 O''clock in mid night and onwards several times, when labour pain was reported by the patient, giving every assurance Doctor, Opposite Party No. 2 did not come to Nursing Home though Nurse and compounder remain present there.
Complainant and other witnesses examined which according to the learned Magistrate were not sufficient for making out any case of negligence. So, complaint petition was dismissed but the same was challenged in Revision No 281 of 2000 at Vaishali and that is allowed.
In the case delivery is of live male baby, who died just after taking birth. Death of a newly born baby, if car be said negligence on the part of Doctor for not taking care earlier is the only point to be considered while taking cognizance and that was possible only prima facie that could be believed.
In my opinion, it is not for common people including the complainant and his family members or other witnesses to assess the negligence in death of newly born child, only opinion of a Doctor (expert) can be taken for medical negligence. Though that aspect has not been considered by any of the Courts but in the case, patient was admitted to appellant''s Nursing Home at 10.00 pm. She (petitioner) was approached at 12.00 midnight and onwards. Doctor came to her nursing home only at 6.30 am., next day making arrangement for natural delivery that was successful also but the newly born child after one or two cry died.
It is not possible for Doctors to remain present for 24 hours. No doubt, in emergency their services should be rendered immediately but evidence is lacking that approach of the appellant and her not coming to her nursing home was negligence on her part. It was a private nursing home, its reputation was attached with the petitioner. It is a case of misfortune that a newly born child died just after taking his birth but that cannot be compensated fixing liability upon the Doctor without verifying its negligence in medical term.
Accordingly, the revision petition is allowed. The order dated 21.02.2002 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur is set aside and at the same time, the order dated 26.08.200 passed by the Judicial Magistrate, 1st Class, Hajipur in Complaint Case No. 2311 of 1999 is hereby revived (confirmed).