The main legal point established is that in cases of medical negligence, the opportunity of hearing must be afforded to the accused party, and expert opinion should be obtained to sustain the complaint.

ORDER

Bhanwar Singh, President - Heard learned Counsel for the appellant.

2. None responded on behalf of respondent.

3. This appeal is directed against the judgment and order dated 26.2.2003 by virtue of which respondent/complainant's complaint was allowed and a sum of Rs. 1.00 lacs was awarded as damages besides litigation charges of Rs. 500. The complainant filed his complaint with the allegations that Dr. Vinita Agnihotri of Raj Hospital committed medical negligence while treating his wife and operating her of a tumour in her abdomen during 22.6.2000 to 29.6.2000. The complainant's wife expired on 25.10.2000. The complainant paid Dr. Vinita Agnihotri fees for treatment as well as operation but the entire tumour could not be removed by the Doctor as a consequence she died. The District Forum proceeded ex parte on the assumption that the registered notice alleged to have been despatched to Dr. Vinita Agnihotri might have been served upon her as the same was not received back within one month. On the strength of the deemed service, the District Forum had drawn ex parte proceedings and relying upon the affidavit filed by the complainant in support of his complaint the District Consumer Forum, Kanpur Nagar allowed the complaint and awarded damages as indicate above.

4. Learned Counsel appearing for appellant has pointed out that the notice was sent to her on a wrong address giving premises No. C-115 , Vishwa Bank Colony, Kanpur while the fact is that Dr. Vinita Agnihotri's hospital namely Raj Hospital is located at C-1/15 HIG, Vishwa Bank Colony, Kanpur Nagar. It may be mentioned that one Mr. S.L. Sharma stays in House No. C-115, World Bank Colony, Kanpur Nagar as is apparent from electric bill (Annexure-3). It is also relevant to mention that the complainant was issued a receipt for Rs. 4,000 by Raj Hospital and the correct address of the Hospital i.e. C-1/15, HIG World Bank Colony, Kanpur Nagar is clearly depicted. This receipt was relied upon by the complainant in support of his complaint. It thus appears that the notice was despatched to Dr. Vinita Agnihotri on a wrong address. Dr. Agnihotri in her affidavit has specifically denied the receipt of any notice sent to her by the complainant. In this way the appellant has not been given an opportunity of hearing. Moreover, no expert opinion to sustain the complaint had been obtained by the District Forum. The appellant was fully entitled to an opportunity of being heard. It would result in irreparable loss to her if she is allowed to pay the damages without affording an opportunity of hearing.

5. In the result the appeal succeds and the judgment deserves to be quashed.

6. Accordingly, the appeal is allowed and the ex parte judgment is set aside. The appellant is directed to appear before the District Consumer Forum, Kanpur Nagar on July 4, 2007. The District Forum shall decide the complaint case afresh after affording an opportunity of hearing to both the parties.