- (1.) LEAVE granted.
(2.) THIS appeal arises out of an order dated 12th January, 2009 passed by the National Consumer Disputes Redressal Commission. The facts giving rise to the impugned judgment have been set out in the order passed by the National Commission. We, therefore, need not repeat the same over again. Suffice it to say that the respondent had made a claim for payment of compensation against the appellant-Scan centre on account of alleged deficiency in service inasmuch as the Centre was not in a position to accurately detect the limb reduction deformity of a child that was in the womb of the respondent-claimant at the relevant time. The complaint filed by the respondent alleged that the deformity in question could have been cited by the doctor conducting the ultrasound but was not so detected on account of negligence on his part. The State Commission accepted that version and awarded a sum of rupees five lakhs to the complainant holding that there was indeed a deficiency in the service provided by the centre. The National Commission dismissed the appeal preferred by the centre and upheld the award made against it. The National Commission held that the fetus had only a stump below the elbow without any forearm, and that one could not believe that such an obvious anomaly could escape the scrutiny of a specialist who is expected to observe the scan carefully. This, according to the National Commission, implied a deficiency in service on the part of the centre for which the complainant had been rightly compensated. The appellant has assailed the above order before us as already noticed. We have heard learned Counsel for the parties at some length and perused the record. It is common ground that the claimant had not placed any material on record in support of her case that the deformity could have been sighted between 2nd and 3rd trimester. The claimant's case was entirely based on her oral assertion that the detection of the deformity was possible. There is also no evidence as to how the scan centre or the respondent No. 2 did not do what ought to have been done or did something which a doctor possessing ordinary skills ought to have done. No expert evidence was let in to show that the scans conducted were not as per the medical norms or that the centre was not properly equipped. The Commissions also failed to appreciate that ultrasound is not a perfect depiction of the foetus and the scan result cannot be 100% conclusive. It is often difficult to examine some foetal areas. Difficulties may also be posed by the relative paucity of amniotic fluid in the third trimester, the hyper flexed position of the foetus, engagement of the head or compression of some foetal parts. An additional factor may be maternal obesity, which can make sonographic evaluation difficult at any time during pregnancy. That apart the Commissions overlooked the view taken by this Court in Vinitha Ashok (Smt.) v. Lakshmi Hospital and Ors., I (2002) CPJ 4 (SC)=VI (2001) SLT 735=(2001) 8 SCC 731, and State of Punjab v. Shiv Ram and Ors., IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=III (2005) ACC 717 (SC)=(2005) 7 SCC 1, wherein this Court has held that proof of negligence must satisfy the Bolam's test. The said test was summarised in Eckersley v. Binnie, (1988) 18 Con.LR 1 (CA), in the following words: "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of a polymath and prophet."
(3.) IN Martin F. D'Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC)=2009 (3) SCC 1, this Court had adopted the above test as applicable to cases of medical negligence in this country. This Court relied upon the following passage from Hunter v. Hanley, 1955 SLT 213, which deals with the tests applicable for establishing negligence in diagnosing or treatment on the part of a doctor: "In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men.... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...." Applying the above test recognized by precedent in this country to the case at hand we are of the view that the State Commission and so also the National Commission fell in error in holding that there was deficiency in service inasmuch as the centre had failed to detect the deformity with which the respondent gave birth to her child. What is significant is that the respondent-complainant had not led any expert evidence to controvert the case of the centre that the doctor who conducted the ultrasound was highly qualified and that the ultrasound was done with due care and diligence. There was also no evidence to show that the failure to detect the deformity was out of any negligence on the part of the doctor conducting ultrasound.;