K.K. DHRUV vs JYOTI VERMA

THIS appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 15.10.199 in Complaint No. 143/96 by District Consumer Disputes Redressal Forum, Bilaspur (hereinafter called the ''District Forum'' for short) dismissing the complaint.

THE complainant averred that his wife was pregnant and when labour pain started, he took her to the nursing home of opposite party/respondent at Korba. She was admitted in the said nursing home on 2.6.1996. THE complainant''s wife was examined by the respondent, from time-to-time and some medicines and injections were also given to her by the respondent. In the night of 2.6.1996, the complainant''s wife suffered unbearable pain, upon which the complainant and others went to the house of the respondent to call her. However, respondent firstly avoided to come. However, later she came to her nursing home and advised for Caesarian operation of the complainant''s wife. THEreafter, in the morning of 3.6.1996 when the complainant''s wife became unconscious, the respondent referred her to 100 bedded Government Hospital at Korba. However, as no Gynaecologist was available in the said Government Hospital, the complainant''s wife was again brought back to the respondent''s Nursing Home. However, by that time the complainant''s wife had died. THE respondent, however, referred the complainant''s wife to Dr. Dandekar who did not admit her and sent the patient to NTPC Hospital at Darri. Doctor of the NTPC Hospital declared the complainant''s wife as dead. It was averred by the complainant that the death of his wife occurred on account of negligence and misconduct of the respondent. The complaint was resisted by the respondent. It was averred by the respondent that initial examination disclosed the general condition of the patient as fair. Other examinations revealed the state of health as detailed in the written version of the respondent which indicated that caesarian operation did not appear to be necessary and normal delivery appeared to be possible. Some injections, etc. were given to the complainant''s wife who has been kept under personal observation by the respondent and necessary medicines were also given to her. However, around 5.30 a.m. in the morning of 3.6.1996 amniotic sac ruptured and complaint of restlessness was made by the patient. After seeing the conditions of the patient and as her condition did not improve and as her conscious level deteriorated suddenly, the respondent referred the patient to 100 bedded Government Hospital, Korba for further treatment. As gynaecologist was not available in the Government Hospital, she was referred back to the nursing home of the respondent. On the request of the complainant, the respondent then referred the complainant''s wife Sangeeta to Dr. Dandekar. Dr. Dandekar, however, referred the patient to NTPC Hospital, Darri. It was denied that there was any negligence or misconduct by the respondent.

Learned District Forum held that the complainant has not placed any material in support of his averment of negligence by respondent and has thus not substantiated the averments in the complaint. In view of the above, the complaint was dismissed.

IT is noticed that District Forum while dismissing the complaint observed that the complainant has not filed affidavit in support of his complaint despite opportunity given to him. IT appears from the record of District Forum that expert opinion has also not been produced in the case. In the instant case the grievance of the complainant is that his wife died due to negligence by respondent No. 1. To prove such negligence expert opinion would be necessary and in the absence thereof, it would not be possible to properly adjudicate the matter on its merit. Considering the gravity of the averments made in the complaint and the fact that the complainant''s wife died allegedly on account of negligence on the part of the respondent No. 1, it appears just and proper to grant further opportunity to the complainant to file affidavit in support of averments in the complaint, as also to afford him an opportunity to produce expert evidence. In the circumstances, we consider it just and proper to direct that District Forum shall reconsider the matter after giving the complainant opportunity as directed above.

ACCORDINGLY, the appeal is allowed. The impugned order is set aside. The complaint is remitted to District Forum with the direction that the complainant shall be afforded an opportunity to furnish affidavit in support of averments in the complaint and he would also be entitled to adduce expert evidence, if he chooses to do so. The respondent, of course, shall be entitled to an opportunity of rebuttal, in case the material as above is placed on record by the complainant/appellant. The District Forum thereafter shall decide the complaint afresh on merits, after affording due opportunity of hearing to the parties. The parties shall appear before the District Forum on 14.6.2004 without further notice. Appeal allowed.