In order to establish negligence in a medical negligence case, the complainant must prove that the doctor fell below the standard of a reasonably competent practitioner and that the damage suffered by the patient resulted from this breach of duty. A mistaken diagnosis or an error of judgment does not necessarily constitute negligence.

Mr. Justice S.K.M. Lodha, President— Surendra Kumar Kumavat and Smt. Sushila Kumavat who are husband and wife filed a complaint under Section 12 read with Section 17(1)(a) of the Consumer Protection Act, 1986 (“the Act” herein) against Dr. Smt. Sunil Jain (Opposite Party No. 1), Dr. R.K. Jain (Opposite Party No. 2) and Dr. Ramavatar (Opposite Party No. 3) for award of Rs. 1,50,000/- as compensation. A further prayer was made that a direction may be issued to the opposite parties not to act in a way by perpetrating fraud, falsehood etc.

x x x Text in Hindi omitted x x x with the other consumers as was done with the complainants. The complaint was filed before the State Commission on 10.9.90.

2. Opposite Parries Nos. 2 & 1 are husband and wife. When Complainant No. 2 became pregnant, she felt some trouble as after three daughters in future, the complainant wanted a son and not the daughter as the complainants believed in family planning. When complainant No. 2 was having pregnancy of one and quarter month, complainant No. 1 being husband of complainant No. 2 took his wife on 7.7.89 to the clinic of opposite parties Nos. 1 and 2. They approached opposite parties Nos. 1 and 2 and told them that they want D.N.C. of complainant No. 2 as in future they do not want to have any son or daughter. They also told that opposite party No. 1 wants to get the operation performed. Thereupon opposite parties Nos. 1 and 2 told them that they should continue the treatment in their clinic and may come every week as it is not proper to perform D.N.C. of complainant No. 2 as she is weak though according to complainant No. 2 she was not weak. For a period of about three months opposite party No. 2 took Rs. 20/- as fees from complainant No. 2 every week and she purchased medicines from the market. According to the complainants, they have spent a sum of Rs. 2,000/- approximately within a period of three months. After the expiry of three months complainants again went for D.N.C. to opposite parties Nos. 1 and 2 and requested them that D.N.C. may be performed urgently. Opposite parties Nos. 1 and 2 avoided this and told the complainants that they should go for sonography to opposite party No. 3 and that they will be in a position to know whether the complainant will give birth to son or daughter and if the report of sonography comes that there is a male child then it will not be proper for complainant No. 2 to get D.N.C. done. Still the complainants requested opposite parties Nos. 1 and 2 that they consider D.N.C. proper as besides three daughters they do not want any son or daughter. From the talks that the complainants had with opposite parties Nos. 1 and 2, they gathered that opposite party No. 3 is their friend and they are in collusion with each other and, therefore, the complainants were compelled. Sonography was done on 28.9.89 by opposite party No. 3. Opposite party No. 3 charged Rs. 1,200/- for sonography and gave receipt in the name of the complainant. Rs. 1,000/- were said to be due which were subsequently paid for which no receipt was given. According to the complainant, opposite parties Nos. 1.. 2 and 3 on account of their collusion, they charged Rs. 2,200/- from the complainant and which was improper and that receipt which was given to him did not contain receipt number and in this way opposite party No. 1 had also cheated the State Government. Opposite Party No. 3 gave the report in writing. This report is correct upto 97% and orally assured the complainant that according to their reports which mention 82% to 88% son is born and, therefore, they need not be depressed. He also told that they should continuously get complainant No. 2 treated by opposite parties Nos. 1 and 2. They were further told that there was no necessity of D.N.C. They advised bed rest to the complainant No. 2 otherwise there is likelihood of some harm and she may also die. The complainant said that he has spent about Rs. 5,000/- for sonography. After about 7 months op