The central legal point established in the judgment is the absence of medical negligence and the lack of legal basis for the compensation awarded by the State Commission.

ORDER

Dr. S.M. Kantikar, Member - On 17.2.2005, the Respondent/Complainant came to the Petitioner/Respondent with severe pain in the abdomen. He brought with him an X-ray and an ultrasound report advised by another doctor. On the basis of those reports the complainant was diagnosed as a case of peptic ulcer, which had perforated and caused peritonitis and needed immediate life-saving surgery. The diagnosis and proposed surgical treatment and its urgency and likely outcome were explained to him and he gave informed consent for surgery. Surgery was performed under anesthesia given by a qualified anesthetist. The duodenum was found to be perforated. There was pus in the abdomen. The perforation was surgically closed. The pus was removed. The operation was successful and the complainant's life was saved. He was discharged from the Hospital on 26.2.2005 in a healthy condition. A modest fee of Rs. 10,000 was charged for various services from 17.2.2005 to 26.2.2005; Surgeon's fee; Anesthetist's fee; OT charges; medicines and disposables.

2. The complainant came for follow up review on 29.2.2005 and again on 4.3.2005 when stitches were removed. His condition was healthy. He had no complaints.

3. After lapse of 9 months complainant developed incisional hernia. He consulted at Hindu Rao Hospital during 11.11.2005 to 18.11.2005. The doctors there at Hindu Rao Hospital who examined him for the incisional hernia stated that the operation conducted by Dr. Ved Yadav (OP) was wrong due to which he has to suffer. Alleging the medical negligence a complaint was filed in District Consumer Disputes Redressal Forum (herein District Forum).

4. The District forum on appraisal of pleadings of parties and evidence on record dismissed the complaint. Against the order of District Forum complainant filed an appeal No 49/2008 before State Commission

5. The State Commission heard both the parties and perused all the documents on the file related to treatment chart of OP and other hospitals but State Commission was not in opinion of occurrence medical negligence by the OP. Also there was no expert opinion on the file that the treatment given by OP was not up to the medical standards. State Commission considered the reference made by District Forum who relied upon standard medical book on "Principles of Surgery" and on perusal of the same clearly reads as under:

"Incisional hernias result of a healing failure of a prior abdominal wall surgical closure. Although estimates of incidence vary, careful investigation shows that they occur in at least 10 to 15% of all laparotomy incisions. Incisional hernias may be asymptomatic or present with pain, incarceration, or strangulation. Risk factors for the development of a ventral incisional obesity, immuno suppression, and chronologically increased intra-abdominal pres-sure."

6. The State Commission concluded the case with observations as follows:

"Having taking into consideration the facts and circumstances of the case and the documents available on the record, we do not find any kind of medical negligence and deficiency in service on the part of the treating doctor-opposite party No. 1. However, at the same it has to be kept in mind that the appellant-complainant has appeared before us. We have physically seen the operated portion where tissues of the complainant become weak. The complainant is a poor person and needs medical treatment again because the operation conducted by the opposite party No. 1 could not give desired result. Under the facts and circumstances of the case we feel that the complainant, who is a poor person and cannot afford the expenses of second operation, should be compensated enabling him to get further treatment as a goodwill gesture. In our view whatever fee has been paid by the complainant to the opposite party No. 1 i.e. Rs. 16, 000 be refunded to him as a goodwill gesture."

7. State Commission ordered the OP to pay Rs. 16000.

8. Against the order of State Commission, this revision.

9. We have hear