Judgment :

GANGULY, J.

1. Leave granted.

2. This appeal has been filed challenging the judgment and order dated 19.02.2009 of the National Consumer Disputes Redressal Commission, New Delhi (hereinafter, `National Commission') which upheld the finding of the State Consumer Forum. The order of the National Commission runs as follows:

"Heard. The State Commission after elaborate discussion has come to the conclusion that there was no negligence on the part of the respondent doctor. All possible care was taken by the respondent in treating the petitioner. The State Commission has also recorded a finding that no expert opinion was produced by the petitioner to prove that the line of treatment adopted by the respondent hospital was wrong or was due to negligence of respondent doctor. Dismissed".

3. The appellant, who happens to be the original complainant, is an officer in the Malaria department and he got his wife admitted in the Respondent No. 1 hospital on 20.07.02 as his wife was suffering from fever which was intermittent in nature and was complaining of chill.

4. In the complaint, the appellant further alleged that his wife was subjected to certain tests by the respondent No.1 but the test did not show that she was suffering from malaria. It was also alleged that his wife was not responding to the medicine given by the opposite party No.1 and on 22nd July, 2002 while she was kept admitted by respondent No.1. Saline was given to her and the complainant had seen some particles in the saline bottle. This was brought to the notice of the authorities of the respondent No.1 but to no effect. Then on 23rd July 2002 complainant's wife was complaining of respiratory trouble and the complainant also brought it to the notice of the authorities of the respondent No.1 who gave artificial oxygen to the patient. According to the complainant at that stage artificial oxygen was not necessary but without ascertaining the actual necessity of the patient, the same was given. According to the complainant his wife was not responding to the medicines and thus her condition was deteriorating day by day. The patient was finally shifted to Yashoda Hospital from the respondent No.1.

5. At the time of admission in Yashoda Hospital the following conditions were noticed:

"INVESTIGATIONS

Smear for MP-Positive-ring forms &

Gametocytes of P. Falciparam seen

Positive index-2-3/100RBCS LFT-TB-1.5 DB-1.0 IB-0.5 WIDAL test-Negative HIV & HBsAG-Negative PT-TEST-22 sec CONTROL-13 sec APTT-TEST-92 sec CONTROL-38 sec CBP-HB-3.8% gms TLC-30.900/cumm RBC-1.2/cumm HRP II-Positive B urea-38 mg/dl S Creatinine-1.3 mb/dl S Electrolytes-NA/K/CL-148/5.2/103 mEq/L C X R - s/o ARDS CASE DISCUSSION

45 yrs old of patient admitted in AMC with H/o fever-8 days admitted 5 days back in NIKHIL HOSPITAL & given INJ MONOCEF, INJ CIFRAN, INJ CHOLROQUINE because of dysnoea today suddenly shifted to Y.S.S.H. for further management. Upon arrival in AMC, patient unconscious, no pulse, no BP, pupils dilated. Immediately patient intubated & ambu bagging AMC & connected to ventilator. Inj. Atropine, inj. Adhenoline, inj. Sodabicarb given, DC shock also given. Rhyth restored at 1.35 PM At 10.45 pm, patient developed brady cardia & inspite of repeated Altropine & Adhenolin. HR-`O' DC shock given. External Cardiac massage given. In spite of all the resuscitative measure patient could not be revived & declared dead at 11.30pm on 24.7.2002".

6. In the affidavit, which was filed by one Dr. Venkateswar Rao who is a Medical Practitioner and the Managing Director of the respondent No.1 before the District Forum, it was admitted that patient was removed from respondent No.1 to the Yashoda Hospital being accompanied by the doctor of the respondent No.1. From the particulars noted at the time of admission of the patient in Yashoda Hospital it is clear that the patient was sent to Yashoda Hospital in a very precarious condition and was virtually, clinically dead.

7. On the complaint of the appellant that hi