IMPORTANT POINT
Negligence – Negligence cannot be ruled out and the preponderance of probabilities given the circumstances aforesaid lead to the conclusion that the Appellant was negligent in discharging the professional duties.

ORDER

The Appeal arises out of an Order of the SCDRC, UT Chandigarh dated 18.10.2011 whereby the learned State Commission has allowed the Complaint filed by the Respondent No.1 and has awarded compensation, expenses and litigation costs as against a claim of medical negligence. The negligence is precisely alleged against Dr. Tejinder Kaur who is running the Opposite Party No.1 Scanning centre contending that the report of imaging dated 13.01.2007 was a wrong report, contrary to the images that existed, and which were necessarily to be mentioned for a proper diagnosis. It is alleged that on account of this incorrect and wrong report, the future treatment of the Complainant could not be undertaken timely and was delayed, resulting in the loss of the eye-sight of the left-eye of the Complainant. The loss was on account of the optical nerve been infected with a malignant growth which was not depicted in the report dated 13.01.2007. The claim was, that had the correct radiological symptoms been recorded, the Complainant would have immediately undertaken the follow-up treatment which could not be accomplished due to this incorrect reporting by the Appellant. The State Commission after having examined the Evidence, the facts and the sequence of events came to the conclusion that there was a deficiency and a lapse amounting to negligence on the part of the Appellant by giving a wrong MRI report and consequently such a medical negligence on his part made him liable to compensate the Complainant on account of loss of vision of the left eye of the Complainant.

2. At the outset, certain facts need to be recorded namely that before the State Commission, an application had been filed on 04.08.2010 by the Complainant for seeking expert opinion, but the said application remained pending and was finally dismissed alongwith the main Complaint on 18.10.2011 recording that since there was enough material on record that was sufficient for the adjudication and just decision of the case, hence no further expert opinion was needed. The second aspect is that the impugned Order was subjected to a challenge in two Appeals, one being the present Appeal being F.A. No.487/2011 filed by the Scanning Centre through Dr. Tejinder Kaur. Another Appeal was filed being F.A. No.532/2011 by the Opposite Party No.2 Insurance Company as Dr. Tejinder Kaur had a professional indemnity insurance coverage from the said Insurance Company. Both these Appeals were listed on 21.08.2023 and on account of the absence of the learned Counsel, both the Appeals were dismissed for want of prosecution. M.A. No.544 /2023 is a Restoration Application that was filed by the present Appellant only and accordingly on 15.11.2023 the said Restoration Application was allowed restoring this Appeal. Thus, the Appeal filed by the Insurance Company being F.A. No.532/2011 as on date stands dismissed for want of prosecution.

3. Another fact which needs mention is that after the filing of the present Appeal, an interim Order was passed on 02.01.2012 granting stay against the impugned Order subject to a deposit of Rs. 10 lacs. The said amount of Rs.10 lacs was deposited and vide Order dated 16.01.2013, this Commission allowed the interim Order to continue and admitted the present Appeal subject to a further direction that the amount of Rs.10 lacs deposited under the interim Order dated 02.01.2012 shall stand released in favour of the Complainant.

4. It is in this background that the present Appeal was heard and Orders were reserved on 16.02.2024.

5. Learned Counsel for the Appellant advanced his submissions contending that the Complainant alongwith his guardian came to the appellant Clinic/Scanning centre on 13.01.2007 on their own without there being any prescription or medical advice from any medical practitioner and requested for an ordinary MRI Scan.

6. According to the Appellant, the father of the Complainant was advised to seek a specialist’s opinion for specifying the area and type of scan re