Dr. Tarun Kumar Vohra vs Archana

The respondent has been served. The matter was earlier taken up on 04.11.2019. Since no one was present on behalf of the respondent on that day, instead of deciding the matter ex parte, we adjourned it for today in the hope that somebody will appear.

Today also, none appears. Therefore, we have no option but to decide the matter ex parte.

The respondent filed a complaint under the Consumer  Protection Act, 1956 alleging that she visited the clinicof the appellant who is a Doctor for getting the ultrasound investigation done to know about her unborn child on 13.11.2002. She was told that the report was normal. Again, she got her ultrasound done on 20.01.2003 and then on 13.03.2003. On both occasions the reports were that the foetus is normal. However, after the male child was born on 08.04.2003, it was found that the left upper limb part of the hand of forearm was missing. She, therefore, filed a complaint alleging deficiency in service and seeking damages of Rs.10 lakhs from the appellant herein.

The District Forum vide its judgment dated 12.09.2005 dismissed the complaint on the ground that the complainant did not deny the specific assertion of the appellant that the ultrasound done at LNJP Hospital also did not show any deformity. According to the appellant, the ultrasound is a useful tool but not a full proof method to detect every deformity. Sometimes, some anomalies cannot be detected even with ultrasound. These assertions were not specifically rebutted by the respondent and hence her claim was dismissed.

Thereafter, on an appeal filed by the respondent, the matter was remanded by the State Commission with the direction that the parties may be permitted to lead fresh evidence and expert evidence may be examined. After remand, the District Forum sent a letter with various queries to the Guru Teg Bahadur Hospital at Shahdara, for expert opinion. The response from GTB Hospital was that ultrasound is not a 100% full proof method of diagnosis for all congenital anomalies. It further opined that a study-sensitivity of routine ultrasound screening of pregnancies in the Eurofighter Database quotes the overall detection rate of congenital anomaly to be 56.2% (In Annals of New York Academy of sciences, Grand jean et al; vol 847 issue 1 ultrasound 118-124)

Another study quotes that ultrasound gave positive result in only 46% cases of chromosomal anomalies with maternal age 35 years (Prenatal diagnostic procedures used in pregnancies with congenital anomalies in 14 regions in Europe (In Prenatal diagnosis; author Y. Gillerot: Publisher-john Wiley & Sons)). Relying on the report the District Forum again dismissed the petition.

Thereafter, the complainant filed an appeal in the second round before the State Commission which allowed the appeal on 22.09.2011. Aggrieved by the said order, the appellant filed a revision petition before the National Consumer Disputes Redressal Commission which upheld the order of the State Commission. Since the National Commission has virtually not given any reason of its own and upheld the order of the State Commission, we have gone through the order of the State Commission. We find that both the State Commission and the National Commission have invoked the principle of res ipsa loquitor to fix the liability on the appellant.

We fail to understand how in a case where medical evidence did not support the claimant, the principle of res ipsa loquitor could be invoked by the State Commission.

The phrase"res ipsa loquitor" literally means "the things speak for itself". It is only when the facts are crystal clear pointing clearly to negligence that this principle can be brought into play. To give an example, if a bus goes off the road then the principle may apply because the bus is supposed to remain on the road.

Whether, from the ultrasound certain anomalies can be detected or not is not something which can be decided in the absence of expert evidence. Since the expert evidence did not support the respondent, we are of the considered view that the principle of res ipsa loquitor was wrongly invoked by the State Commission as also by the National Commission.

Effectively, the opinion of GTB Hospital indicates that ultrasound is by itself is not a 100% sure test. Therefore, it cannot be said that there was a deficiency in service given by the appellant.

We accordingly allow the appeal, set aside the impugned orders of the National Commission and State Commission and restore the orders of the district Forum. No order as to costs.