B.K. Taimni, Member— The Appellant was the complainant before the State Consumer Disputes Redressal Commission, Orissa (hereinafter referred to as State Commission), where he had filed a complaint alleging a case for medical negligence against the respondents opposite/parties.

2. The case of the appellant 2nd complainant was that his wife was suspected to be suffering from cancer therefore she was admitted in Medical College, Cuttack, but upon being informed by a friend that she will get a better treatment in Nursing Home, they went to the first respondent Nursing Home, where after test it was confirmed that she was suffering from cancer. A surgery was conducted on 13.3.1993 and when the stitches were removed, it was found that the surgery was not successful after which she was referred to one Dr. Nayak, who advised radiotherapy. Wife of the appellant received radiotherapy for three days, after which she approached the Medical College Cuttack, for admission. She was admitted there on 27.3.1993 where proper care was not being taken, hence she was moved to her native village. Again when she was uncomfortable, she was again taken to Medical College, Cuttack for further treatment, where the Oncologist, Dr. Panda examined her and advised for re-operation. She was again operated for second surgery at Sarla Nursing Home by the second opposite party/respondent. Even though the operation was said to be successful but no relief was felt by the complainant. She was unable to eat any food and has become completely bed ridden. It is in these circumstances that a complaint was filed before the State Commission, who after hearing the parties dismissed the complaint. Aggrieved by this order, this Appeal has been filed before us.

3. We have very carefully gone through the material on record and found that the State Commission has not followed the procedure prescribed under Section 13 of the Consumer Protection Act, 1986. Admittedly no affidavit by way of evidence was filed before the State Commission. In our view, in the absence of affidavits, the order could not have been passed and if the State Commission was of the view that an expert opinion is required then they themselves could have obtained an expert opinion from a qualified person from the Government Hospital.

4. Since, in our view, the order has been passed without taking the evidence, we are not in a position to sustain the order passed by the State Commission. The case is remanded back to the State Commission for giving opportunity to both the parties to file affidavits by way of evidence in support of their respective contentions as also the hospital record by the Respondents relating to the patient, medical literature on the subject as also obtaining an opinion from an expert, if deemed necessary by the State Commission.

5. Both the parties are directed to appear before the State Commission on 28.5.2007. Since this is an old case, the State Commission is requested to dispose of the case as expeditiously as possible preferably in the next three to four months.

6. A copy of this order be sent to the Respondent’s Counsel and the Respondents as also the Appellant/ Complainant since the case was argued before us by the Amicus appointed by this Commission in Delhi.

Ordered accordingly.

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