Mr. Justice S.A. Shah, President—The complainant is the husband of deceased Baluben who is alleged to have expired on account of the negligence of nurse Parmar Navalben Balabhai at Primary Health Center, Nana and Dr. Kanchanlal Shah, Owner of Ashirvad Surgical and Maternity Hospital, Harij.

2. The short facts that lead to this complaint are as under :

The wife of the complainant Baluben Gopalbhai was pregnant and delivered one child at Village Overawed in her residence in presence of 2 ‘dais’. After the delivery of one child, it appeared to the Dais that there was a second child in the womb which could not be delivered for a long time and, therefore, the husband was advised to take the wife to Nana where the Primary Health Center was situated. In the early morning Bahiben was transported to Nana by camel cart. She was treated at Nana by Navalben and Dr. Vaghela whose certificate is produced at Annexure-1. Though the complainant has made several allegations against Navalben, it appears from the certificate that the patient was brought to the Primary Health Center, Nana at 7.30 a.m. on 6.12.91 with history of twin child, first delivered at home at about 12 midnight on 5.12.91 and second child hands and shoulder prolapsed, cold body and bleeding p.v. the condition of the patient was noted by Dr. Waghela. The patient was thereafter taken to Ashirwad Surgical and Maternity Hospital at Harij which is situated at about 16 kms. from Nana by jeep which was provided by the Primary Health Center. From the case papers it appears that the patient was admitted in the Ashirwad Hospital at about 9.30 a.m. on 6.12.91. But the condition of the patient having found to be very serious requiring blood, doctors advised to take her to Patan Hospital where blood can be made available.

3. It appears that when the patient was taken to jeep from the hospital, she died in the jeep and allegation has been made that inspite of the fact that Dr. Kanchan Lal had recovered Rs. 2800/- by way of fees, he remained negligent in treating the patient resulting into the death of the patient. Both Navalben and Dr. Kanchanlal have filed written statements and denied the wild allegations made by the complainant.

4. Considering the seriousness of the allegations made by the complainant, we permitted the parties to cross-examine the witnesses. The complainant has been cross-examined by Mr. Mehta the learned Advocate of the opposite party No. 2 and Dr. Kanchan Lal Shah has been cross-examined by Mr. Mahendra Kumar, the power of attorney holder at length. Considering the facts and circumstances, we have put certain questions to Dr. Kanchanlal.

5. The question that arises in this complaint is as to whether (1) Smt. Navalben, who is alleged to be nurse is nothing but Ayah was negligent in treating the patient which has ultimately resulted into the death; (2) Dr. Kanchanlal Shah was negligent in treating the patient when it is alleged that he was paid Rs. 2800/- by way of fees and; (3) fees has been paid to Dr. Kanchanlal Shah, as alleged.

6. We may make it clear that the burden to prove that the patient died on account of negligence of Opposite Party No. 1 or 2 lies upon the complainant in view of clear wording of Section 14 (1)(d) of the Consumer Protection Act. A consumer has, therefore, to prove two things —

(1) that he has hired the services of the opposite party for consideration;

(2) that the consumer has suffered loss or injury due to negligence of the opposite party.

In the instant case it has been proved beyond doubt that Baluben had delivered one child at 12 midnight and she was not attended by any qualified person but was attended by two ‘Dais’ who had no academic qualification but had experience. The evidence of one of the Dais’ has been recorded who has stated that she found another child in the womb and the condition of the patient became serious and the child could not come out for a very long time and, therefore, they advised the complainant that she should