N.LALITHA KRISHNA vs MRS.DEEPA NAIR

THIS is an appeal preferred by the opposite party in C.D. No. 522/1997 on the file of the Ranga Reddy District Forum questioning the order of that District Forum dated 7.11.1998 in that C.D. directing her to pay a total compensation of Rs. 10,500/- and also costs of Rs. 500/- to the complainant in that C.D. within three months and in default to pay interest thereon @ 12% per annum from the date of the order i.e. 7.11.1998. The complainant in the C.D. is the respondent before us.

THE brief facts relevant for the disposal of this appeal are that the complainant approached the appellant for medical termination of pregnancy (MTP) within 5 to 6 weeks after she became pregnant and that the opposite party purported to perform MTP on her on 1.7.1997. But on subsequent Trans Abdominal Scan and Endovaginal Scan at ISMIT - Diagnostics on 8.7.1997 it was revealed that the foetus was intact and that it was continuing to grow. THE complainant thereafter approached another doctor Dr. Sumalatha on 17.7.1997 and got abortion successfully performed by her on 18.7.1997 in Nagarjuna Maternity and Nursing Home. She then gave legal notice dated 12.9.1997 through her lawyer to the appellant claiming compensation of Rs. 2,00,000/- and thereafter approached the Ranga Reddy District Forum by way of the present complaint on 6.11.1997 alleging that there was deficiency in service on the part of the appellant and that she should be compensated for the same by way of exemplary damages to the tune of Rs. 2,00,000/- for severe trauma, mental agony and physical pain. The appellant received notice in the O.P. and filed her counter denying negligence and deficiency in service on her part and further contending that the case of subsequent abortion again on 18.7.1997 put up by the complainant was false, and also as follows : "The conduct of petitioner which shows the disinterest and refuse to stay in hospital for a minimum period of two days in hospital for observation and forcefully discharged within two hours and went with bleeding dress, which shows the gross negligence on the part of the petitioner. ................. the doctor has performed the MTP operation successfully with her vast experience and also advised to the petitioner to follow-up the medicines to stop the bleeding and pain continuously for one week, but in this case the petitioner did not stay with the hospital as in patient or sought advice from the doctor, but bluntly refused to medico advice the best reasons were known to petitioner."

The complainant as well as the opposite party filed their affidavits in support of their respective cases. The complainant also filed the receipts (Exs. A1 to A5) evidencing payments made by her to the opposite party and reports of the ISMIT - Diagnostics dated 8.7.1997 (marked as Exs. A6 and A7) and also the receipt (marked as Ex. A8) evidencing amounts paid by her to Nagarjuna Maternity and Nursing Home and the case sheet of that Nursing Home for the dates 17.7.1997 and 18.7.1997 evidencing the second abortion conducted on her by Dr. Sumalatha (marked as Ex. A8). She also filed office copy of the lawyer''s notice got issued by her to the appellant (marked as Ex. A9) and the reply dated 18.9.1997 received from the Advocate of the appellant (marked as Ex. A10).

AFTER considering all aspects of the matter the District Forum in its detailed order dated 7.11.1998 found that there was deficiency in service on the part of the appellant inasmuch as the MTP operation performed by her was found to be a failure because of which the complainant had to undergo a second MTP operation. The District Forum held that Exs. A6 and A7 reports of ISMIT-Diagnostics conclusively established that the abortion purported to have been effected by the appellant was not effected. The District Forum finally held that the hardship, inconvenience and mental agony suffered by the complainant on the facts of the present case were only for a period of 16 days i.e. from 2.7.1997 to 18.7.1997 and assessing the compensation at Rs. 500/- per day for 16 days awarded Rs. 8,000/- towards compensation in addition to directing the appellant to repay the entire medical charges received by her of Rs. 1,200/-, medical charges paid for the second abortion of Rs. 850/- and cost of the ultra sound scan (i.e. Exs. A6 and A7 reports of ISMIT-Diagnostics) of Rs. 450/- and also costs of Rs. 500/-. The learned Counsel for the appellant contends that the District Forum was in error in holding that a second abortion was conducted on the complainant on 18.7.1997. He submits that in the Ex. A9 Lawyer''s notice dated 12.9.1997 got issued by the complainant no mention was made of the second abortion said to have been conducted on her on 18.7.1997 and that this established that there was no second operation of MTP. We do not find any substance in this contention. The mere non-mention of it in Ex. A9 Lawyer''s notice did not establish that the MTP was not conducted as claimed by the complainant; she had not merely given in support of the fact of second abortion her own affidavit, but also filed Ex. A8 case sheet of Nagarjuna Maternity and Nursing Home for the period from 17.7.1997 to 18.7.1997 and also receipt given by it for Rs. 850/- which was marked as part of Ex. A8. The fact that the MTP operation performed by the appellant on 1.7.1997 was unsuccessful was clinchingly established by Exs. A6 and A7 reports of ISMIT-Diagnostics. The appellant did not question the correctness of those reports in her counter or even in her affidavit. She did not seek the examination of Dr. V.S.V. Ram Mohan, a Consultant Radiologist of ISMIT-Diagnostics who had signed the reports. Counsel for the appellant contends that it was for the complainant to prove Exs. A6 and A7 reports. But when the reports were not in any way questioned by the appellant in her counter or in her affidavit there was no need for the complainant to prove the same. In fact the appellant did not dispute the fact that when the complainant approached her for review on 8.7.1997 she required the complainant to get herself scanned.

AFTER carefully going through the entire record of the District Forum which is before us, we are satisfied that the District Forum was right in holding that there was deficiency in service on the part of the appellant. The only question that remains is whether the District Forum was justified in awarding compensation of Rs. 8,000/- and also requiring the appellant to pay the medical charges of Rs. 850/- for the second abortion. We find that the award of Rs. 500/- per day for 16 days is not a reasonable way of assessing the compensation for trauma, mental agony and physical pain suffered by the complainant. We are of the view that the compensation is for the failure of the abortion conducted by the appellant because of which the complainant who was desirous of having MTP effected had to undergo the operation for a second time. Under the circumstances the complainant can have only one set of charges which she had to pay extra for having abortion effected on her. We are of the view that it would suffice if the appellant is required to pay back the medical charges incurred by the complainant for the unsuccessful MTP operation performed by her i.e. of Rs. 1,200/-. She need not be required to pay the further sum of Rs. 850/- paid by the complainant for having MTP (wanted by her) effected successfully. We are of the view that a consolidated compensation of Rs. 5,000/- would be adequate for the deficiency in service on the part of the appellant and the consequent mental agony and suffering undergone by her for having an MTP operation performed on her a second time. The complainant shall also have Rs. 500/- towards costs of this appeal to be paid by the appellant. In the result, we allow this appeal in part and reduce the amount to be paid as compensation by the appellant to Rs. 6,650/- (Rs. 1,200 + 450 + 5,000). In addition the appellant shall pay the sum of Rs. 500/- towards costs awarded by the District Forum and also Rs. 500/- towards costs awarded by us, i.e., in all Rs. 7,650/-. The said sum of Rs. 7,650/- shall be paid by the appellant to the complainant within four weeks from today i.e. by 26.8.1999. Appeal partly allowed.