- (1.) RAGHUNATH Prasad, J. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the "act") against judgment and order dated 9-8-1996 passed by District Consumer Forum, Bulandshahr in Complaint Case No. 412 of 1992.
(2.) THE complainants initially filed a complaint under Section 12 of the "act" with the allegations that during the course of pregnancy of Smt. Tyagi complainant No. 1 Capt. Atul Tyagi and complainant No. 2 Smt. Garima Tyagi, who are husband and wife respectively, consulted the opposite party/appellant who opined for delivery in her Nursing Home. On being given to understand that the opposite party was competent enough to look to the delivery cases, the complainant No. 2 was consulting for her well being as well as for the well being of the child in the womb. Even after Ultrasound tests made twice it was opined by the opposite party that the child is progressing normally and it will be a case of normal delivery. In the complaint it was further asserted that the complainants were assured also by the opposite party, that she has a qualified team of doctors to look into the affairs of pregnancy which made them to believe that everything will be normal during the days rolled on and the outcome will be a safe delivery. It was further pleaded that on 22-6-1992, the complainant No. 2 after experiencing symptoms of birth giving, consulted the opposite party who got her admitted in her Nursing Home and appellant even then assured her that it will be a case of normal delivery and was advised by Dr. Parihar that he should wait for the normal delivery. However, during the course of her admission, at no point of time, progress was monitored by Dr. Parihar although she came to see the complainant No. 2. Dr. Parihar went to her home at 3. 00 p. m. leaving her all alone and during her absence there was no doctor or Nurse in the Nursing Home. In the meantime she started experiencing a lot of pain and she also sent a servant from the Nursing Home to fetch the doctor, but she did not turn up instead it was told that she would not come until and unless one hour. THE complainant was allowed to remain in a critical condition upto 4. 00 p. m. THEn it was noticed by Dr. Parihar that the heart beat is very low which got her disturbed and she decided to operate. Even at that time the facilities for operation were not available and even the tools were not there in the Nursing Home. THEn after a lapse of 45 minutes the dissection tools were requisitioned from nearby Kakkar Nursing Home. Subsequently the delivery of the child through Caesarean was done and the child was found dead. It was also pleaded that the opposite party is only M. D. in Anaesthesiology and not in Gynaecology. It was also pleaded that in all the papers of the Nursing Home, she posed herself to be M. D. in Gynaecology. Specifically it was pleaded that due to inordinate delay in operation, apathy in administration of proper treatment, wrong administration of anaesthesia and due to non- taking the proper steps for getting the cords being removed from the neck and non-availability of other assisting team of doctors at the time of operation, cord around the neck tightened causing the foetal distress due to asphyxia and hypoxia. In all Rs. 99,300 alongwith interest @ 18% per annum as compensation for causing the death of full term baby in womb was claimed. In the written statement, the opposite party admitted the consultation and admission as stated, but the allegation of negligence was vehemently denied and it was asserted that at 4. 30 p. m. on 22-6-1992 two important phenomena developed all of a sudden, i. e. firstly the symptoms of bradycardia were noted and it was found that the heart beat of the child in the womb were showing down in number and secondly the symptoms of muconium were also observed as the first foetal stool has passed in the womb. These symptoms were alarming and pointing towards foetal distress and as such immediate operation became essential to save the life of the child as well as the mother. This development took place suddenly because of the cord being got entangled in the neck of the child. The specific plea taken was that the cord around the neck tightened causing the above phenomena of foetal distress due to asphyxia and hypoxia. It was further pleaded that regular monitoring of foetal heart rate was done and it was found that this foetal bradycardia was persistent and increasing and under these circumstances the patient was shifted inside the operation theatre and 100% oxygen was given to the mother for ten minutes to improve foetal condition but the distress continued and after administration of anaesthesia to the patient, the part of the operation was painted and draped and operation was started. Ultimately the baby was delivered out per abdomen at 5. 08 p. m. and immediately the child was handed over to Paediatrician. Contrary allegations of medical negligence were refuted and compensation claimed was denied as not justified. In support of their case, the complainants preferred affidavits of Capt. Atul Tyagi and Smt. Garima Tyagi, Smt. Anita Tyagi. Smt. Asha Tyagi, Mr. Amit Kumar, Owais Husain Beni and rejoinder-affidavit of Smt. Anita Tyagi and Smt. Asha Tyagi. Even the medical prescriptions and medical certificates payment receipt, certificate of Dr. Garg Nursingh Home, medical certificate of Dr. Shailesh Kumar, New Delhi were filed whereas the opposite party filed affidavits of herself Dr. Usha Parihar, Dr. Naheed Chauhan, Dr. Vishwajeet Nagar, Dr. V. V. Yadav, Dr. Rakesh Kakkar and Dr. Beenu Pankaj and since excerpts from the books relating to concerned medical literature.
(3.) THE learned District Forum, after perusing the material available on record and hearing the submissions raised by the learned Counsel for the parties, passed the impugned judgment and order. Aggrieved against the same the opposite party has come in appeal and has challenged the correctness of the order.;