ORDER :

Leave granted.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. That apart the Commissions overlooked the view taken by this Court in Smt. Vinitha Ashok vs. Lakshmi Hospital and Others, (2001) 8 SCC 731 and State of Punjab vs. Shiv Ram and Others, (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 vs. 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,