Dr. Inder Jit Singh, Presiding Member
1. These two First Appeals (FAs) have been filed by the Appellants under section 19 of Consumer Protection Act 1986, against the order dated 25.11.2016 of the State Consumer Disputes Redressal Commission, Maharashtra, Aurangabad, (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) no 28 of 2015, inter alia praying for quashing and setting aside the impugned order dated 25.11.2016. Respondent-1 and Respondent-2 herein were complainants and Respondent-3 was OP-1 in the said CC. Respondent-1 is the mother of Respondent-2. FA 228 of 2017 & FA 774 of 2017 have been filed by the appellants, who were OP-3 and OP-2 respectively before the State Commission in the said CC. As both the Appeals have been filed against the same order of the State Commission, parties involved are the same, and issues for consideration/determination are related, these are being taken up together under this order. However, for the sake of convenience, First Appeal (FA) No. 228 of 2017 is treated as the lead case and facts enumerated herein under are taken from FA 228/2017. Notice was issued to the Respondent(s) in both the FAs on 17.02.2017 and 12.05.2017 respectively. Parties filed Written Arguments/Synopsis on 05.12.2019 (Appellant, Dr. Renuka Pathak), 08.05.2023 (Respondent-3, Dr. Manisha Khedkar), 02.05.2023 (Respondent-4, Dr. Dhananjay) respectively in FA 228/2017.
2. Brief facts of the case, as emerged from the FAs, Order of the State Commission and other case records are that:-
(i) The Respondent-1(Renuka Jaybhaye) is the mother of Respondent-2 (Aarohi Jaybhaye). Respondent-3 (Dr. Manisha Khedkar) is a gynaecologist and runs hospital namely “Khedkar Hospital”. Respondent-4 (Dr. Dhananjay) is a radiologist and runs hospital namely “Chikitsa Diagnostic and Research Centre”. Whereas appellant (Dr. Renuka Pathak) is a gynaecologist and runs ‘Swasthya Hosptial’. The Respondent-1 availed services of all three professionals while she was pregnant and carrying Respondent-2.
(ii) On 14.07.2014 the Respondent-1 approached Respondent-3 for a check-up of her pregnancy. The Respondent-3 examined her and advised to go for Ultra-sonography (USG), and as per the report she was declared as carrying the foetus at about 15 weeks and 4 days. It was also informed by the Respondent-3 that foetus is well and there is no anomaly or abnormality. To follow up treatment, Respondent-1 visited Respondent-3 on 01.10.2014 when she was examined and obstetric USG was conducted. As per report of this sonography it was informed that growth of child is well and there was no anomaly or abnormality.
(iii) During the treatment with Respondent-3, Respondent-1 was not clear and confident about growth of child and its health and therefore husband of Repsondent-1 suspected some abnormality and decided to go for second opinion about growth of foetus. Accordingly, Respondent-1 approached Appellant (Dr. Renuka Pathak) in her hospital, who after examination advised to undergo certain tests with Respondent-4 (Radiologist, Dr. Dhananjay). On 18.10.2014 various tests along with ultra sound sonography were carried out but no information about any abnormality of the foetus was given in the report.
(iv) Thereafter the Appellant also conducted sonography of Respondent-1 on 03.11.2014 and no abnormality was pointed out. Then on 12.11.2014 Respondent-1 was admitted to the hospital of Appellant where she delivered a female child on 13.11.2014 at about 9:15 A.M. That, after the birth of the child Respondent-1 herein was shocked to see the child with vital deformity known as “Right Phocomelia” i.e. the portion of right hand from elbow was absent.
(v) Thereafter, Respondent-1 and Respondent-2 herein filed CC before the State Commission against OP-1 to OP-3 (Respondent-3; Respondent-4 and appellant herein) alleging deficiency in service for not informing the deformity at the foetus before delivery of complainant-1 (Respondent-1).
(vi) Vide order dated 25.11.2016, The State Commission while holding the complaint to be maintainable, not barred by the limitation and the complainant to be consumer and OP-1 (Respondent-3 herein) also to be a service provider, concluded that deficiency of service was not proved upon OP-1 (respondent-3 herein), but was partly proved against OP-2 and OP-3 (Respondent-4 & Appellant respectively herein), making complainant 1 and complainant-2 to be entitled to some compensation and accordingly directed OP-3 (appellant) & OP-2 (Respondent-4) to pay to the complainants (Respondent-1 & Respondent-2) each of them separately a compensation of Rs.1,00,000/- towards mental harassment & Rs. 5,000/- towards cost of litigation.
3. Appellant in FA 228/2017 Dr. Renuka Pathak has contended that there was no deficiency in service on her part, State Commission despite this finding, has exceeded its jurisdiction in awarding a compensation without any finding of Appellant being deficient in service. In support of her contention she refers to para 16 of the impugned order where State Commission observed “…….. Hence, the opponents cannot be held liable for deficiency in service and to pay compensation as claimed by the complainant. Therefore, the complainants are not entitled for the compensation as claimed in the complaint.” Appellant further argued that State Commission erred in granting compensation to Respondent 1 & 2 for mental agony and harassment which was contrary to section 14(1)(d) of the Consumer Protection Act and the ratio-decidendi postulated by the Hon’ble Supreme Court in GDA Vs. Balbir Singh (2004) 5 SCC 65. Appellant contends that State Commission has unequivocally held that Appellant was not guilty of service, hence there was no occasion to award compensation. Relying on judgment of Hon’ble Supreme Court in Intergloble Aviation Vs. N. Satchidanand (2011) 7 SCC 463, the Appellant argued that compensation cannot be awarded merely on grounds of inconvenience or hardship or on grounds of sympathy. Further, relying on judgment of Hon’ble Supreme Court in The Chairman-cum-Managing Director, Rajasthan Financial Corporation & anr. Vs. Commander S.C. Jain & Anr. Civil Appeal No. 26774 of 2010, decided on 26.03.2010. Appellant argued that compensation can be awarded only when Consumer Forum comes to a conclusion that there is ‘deficiency’ in service. Appellant argued that the State Commission on one hand while not holding the Appellant liable for any deficiency in service, on the other hand grossly erred in directing the Appellant to pay compensation for mental harassment when no loss or injury was caused to the Respondent No.1 on account of negligence directly attributable to the Appellant. Compensation U/s 14 (1) (d) of the Act can only be granted when it is clearly established that the loss or injury caused/suffered has a direct nexus to the negligence of the party resulting in loss or injury. Hence, according to Appellant, State Commission in exercise of its jurisdiction acted illegally and with material irregularity as it completely overlooked the fact that without any finding of deficiency in service, no compensation, whatsoever, can be granted. In this regard, the Appellant relied upon judgment of Hon’ble Supreme Court in Ravneet Singh Bagga Vs. KLM royal Dutch Airlines (2000) 1 SCC 66 wherein Hon’ble Court observed that in the absence of deficiency in service the aggrieved person may have a remedy under common law to file suit for damages but cannot insist for grant of relief under this Act. Further relying on judgment of this Commission in Knishka Vs. Dr. Vibha Dua 2014 SCC online NCDRC 291, the Appellant argued that a doctor cannot be held negligent only because something has gone wrong. Appellant contended that State Commission directed the Appellant to pay compensation on the erroneous finding that false report was given to Respondent No.1. Relying on judgment of Hon’ble Supreme Court in Senthil Scan Centre Vs. Shanthi Sridharan & Anr. (2010) 15 SCC 193, the Appellant argued that ultrasound is not a perfect depiction of foetus and the scan result cannot be 100% conclusive.
4. Appellant in FA 774/2017 (Dr. Dhananjay) in his written submissions, has broadly argued on same lines as that of Appellant in FA 228/2017, and has relied on almost same case laws as cited by Appellant in FA 228/2017. Appellant Dr. Dhananjay contends that direction qua the Appellant herein was passed albeit the specific finding that the opponents cannot be held liable for deficiency in service and to pay compensation as claimed by the complainant. Appellant further contends that State Commission erred in not considering that the indication for obstetric Doppler study was to know the amount of liquor (amniotic fluid around the fetus, fetal and maternal blood flow patterns, foetal movements etc.
5. In short, the Appellants in both FAs have mainly pleaded that State Commission on one hand while not holding the Appellant liable for any deficiency in service, on the other hand, grossly erred in directing the Appellant to pay compensation for mental harassment when no loss or injury was caused to the Respondent No.1 on account of negligence directly attributable to the Appellant and U/s 14 (1) (d) of the Act, compensation can be granted only when it is established that the loss or injury caused/suffered has a direct nexus to the negligence of the party. We have carefully gone through the impugned order dated 25.11.2016 passed by the State Commission and find that these contentions of Appellants are not tenable. State Commission, in para 10 of its order has clearly framed main issues, seven in number, and gave its findings on each of these on the basis of evidence on record. The relevant portion of para 10 of the State Commission’s order is reproduced below:-
“Sr. No. Issues Finding
1. Whether, the complaint is time barred? - In negative.
2. Whether, the complainant is a consumer
and Opp.no.1 is a service provider? - In affirmative
3. Whether, the deficiency in service is
Proved against opponent no.1? - In negative
4. Whether, the deficiency in service
is proved against opp.no.2? - Partly affirmative
5. Whether, deficiency in service is proved
against opp.no.3? -Partly affirmative
6. Whether, complainant no.1 & 2 are entitled
to receive compensation as claimed in
the complaint? -Partly affirmative.
7. What order? -As per final order”
Then in subsequent paras of its order, it has given reasons for each of the issue. In para 13, on considering, inter alia that in both the USG reports done on 14.06.2014 and 01.10.2014, nowhere in the sonography report it is mentioned that there was no anomaly or abnormality, in fact there is a clear mention that ‘the sonography is not for anomaly scan’, the State Commission found that Respondent 1 (Respondent 3 herein- Dr. Manisha Khedkar) cannot be anyway held liable for deficiency in service. Complainants (Respondents 1 & 2 herein) have not challenged the findings of State Commission with respect to Dr. Manisha Khedkar.
6. As regards findings on deficiency in service on the part of Appellants in both the FAs, State Commission in Para 14 & 15 has stated that their actions amount to deficiency in service. In Para 14, State Commission has stated that “However, from the perusal of the said USG report dated 18.06.2014 as prepared by Opponent No. 2 (Appellant in FA 774/2017) , there is inter alia a clear mention that “no gross significant abnormality is noted”. State Commission concludes that if opponent No. 2 was not under duty to detect the anomaly of foetus, as contended by him, why he has made such observation in his report, which has subsequently proved as false, causing unnecessary mental harassment to the complainant No.1 and to her husband. State Commission further observed that due to the said report the complainant No.1 and her husband were rest assured about the birth of child i.e. complainant No.2 with no anomaly or abnormality. But after the delivery it was naturally shocking to see their child with such vital deformity or abnormality. We tend to agree with the observations and finding of State Commission in this regard and are of the view that acts of omission and commission in giving a false report which clearly stated ‘no gross significant abnormality is found’ amounts to deficiency in service, which has caused unnecessary mental harassment to the complainant No.1, entitling them to compensation from the Appellant, notwithstanding that State Commission in this para has stated that ‘respondent No.2 as liable to the extent of causing unnecessary mental harassment to complainant No.1 which amounts to deficiency in service’.
7. Similarly in para 15, the State Commission has stated “However, alike opponent No.2, the question arises in respect of Opponent No. 3 (Appellant in FA 228/2017) as to why she has mentioned in her USG report dated 03.11.2014 that “no gross significant congenital anomaly is noted”; which has caused unnecessary harassment to the complainant No.1, including her husband. The said observation turned out to be false after delivery. State Commission further states that the defence of the Opponent No. 3 is that she was never under duty to detect the anomaly and that the technique of sonography is not perfect to detect the anomaly. What we highlight here is that, when Opponent No. 3 was mot under obligation to detect the anomaly, she ought not to have made such a remark in her USG report which later turned out to be false, due to which the Complainant No.1 remained rest assured about the birth of her child without any abnormality. But after the delivery she was shocked to see the baby with vital abnormality i.e. Right Phocomelia, causing mental harassment not only to Complainant No.1 but also to her husband. Hence, in the case of Appellant in FA 228/2017 (Dr. Renuka Pathak) also we tend to agree with the observations and findings of State Commission in this regard and are of the view that acts of omission and commission in giving a false report which states ‘no gross significant congenital anomaly’ , amounts to deficiency in service which has caused mental harassment to the Complainant No.1, entitling the complainants to compensation from the Appellant, notwithstanding that State Commission in this para also stated that ‘Hence, we hold the Opponent No. 3 also as liable to the extent of causing mental harassment to complainants, which amounts to deficiency in service’. The facts of the case clearly bring out that deficiency in service on the part of Appellant in both the FAs has preceded the mental harassment, entitling the complainants to compensation from her.
8. Para 16 of the State Commission judgment, on which the Appellants are relying to escape their liability pertains to issue No.6 framed by the State Commission viz ‘whether complainants 1 & 2 are entitled to receive compensation as claimed in the complaint’. What the State Commission has observed in this para is that complainant No.1 has claimed compensation of Rs.25 lakh for herself towards alleged deficiency in service against the Opponents and Rs.55 lakh for her baby i.e. complainant No.2 for the alleged loss of her carrier and hardships she has to bear throughout her life, alongwith cost of complaint of Rs.50,000/-. State Commission states that from its findings it reveals that neither complainant No.1 nor her husband, who is a doctor by profession, has ever sought the ‘targeted anomaly scan’ of the foetus at the relevant period of pregnancy i.e. 18-20 weeks’, although in the complaint it is averred that doctor husband of the complainant suspected some abnormality with regard to the foetus and decided to have second opinion of Opponent No.3, there is no record to show that he opted targeted anomaly scan …… therefore, it is the complainant, who is responsible for not getting the targeted anomaly scan at the relevant period of her pregnancy. Hence, the opponents cannot be held liable for deficiency in service and to pay compensation as claimed by the complainants. In the light of clear findings on deficiency in service on the part of Appellants as detailed in para 14 & 15, it is to be noted that observations in para 16 are in the context of Appellants, not doing the targeted anomaly scan for which the complainant has been held responsible by the State Commission, thereby not entitling the complainants to compensation as claimed in the complaint. State Commission after giving these observations, has further stated in the same para 16 that ‘However, though the Opponents have taken a defence that they were not under obligation or duty to detect the anomaly of the foetus, the Opponent 2 & 3 in their sonography report have reported inter alia that ‘no gross significant abnormality’ was noted, which proved to be a false report, which is the reason for State Commission to hold that Opponents 2 & 3 are liable to pay some compensation alongwith cost of proceedings to complainant No.1. We find that State Commission has given a very reasoned finding on this issue also.
9. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties.
i. We find no infirmity or illegality in the order of the State Commission calling for any interference. State Commission has given a well-reasoned order and the same is upheld. Accordingly both the FAs viz FA 228/2017 & FA 774/2017 are dismissed. Parties to bear their respective cost of litigation.
ii. Amount deposited with State commission in pursuance to orders of this commission dated 24.05.2018/ subsequent orders, along with upto date accrued interest shall be paid to the complainants within 30 days of this order. Balance amount payable as per order dated 25.11.2016 of the State Commission shall be paid by the Appellants in FA 228/2017 and FA 774/2017 (Dr. Renuka Pathak and Dr. Dhananjay respectively) along with simple interest @ 6% w.e.f. 25.01.2017, i.e. (date of judgement of the State Commission plus 2 months) till the date of actual payment, within 45 days of the order.
10. The pending IAs, in any of the FAs, if any, also stand disposed off.
