ORDER

Subhash Chandra, Presiding Member—This Appeal under section 19 of the Consumer Protection Act, 1986 (for short “the Act”) challenges the order dated 14.05.2012 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short “the State Commission”) in Complaint No.7 of 2006 dismissing the complaint alleging medical negligence.

2. The brief facts of the case are that appellant no.1’s wife, Manju (deceased), was admitted on 20.05.2004 for her second delivery in the respondent no.1/ hospital as an inpatient. The hospital conducted a detailed check-up of the deceased on 21.05.2004 and found that the deceased was healthy and decided to conduct a caesarean operation after going through all the previous medical records of the deceased. The caesarean operation was conducted on 22.05.2004 at around 12.50 pm using spinal anaesthesia and appellant no.3 was born around 01.03 p m. Appellant alleges that during the caesarean operation neither the general surgeon nor a senior gynaecologist were present. After the operation, appellant no.1 informed that the deceased was not feeling well and was having breathing problems. On 23.05.2004, appellant no.1 again informed respondents that the deceased was not feeling well and had breathing problems. However, the respondent instead of taking extra care, conducted only a routine check-up and found her to be completely fit. According to appellant no.1, the respondent never paid any heed to the request of the appellant no.1 to shift the patient/deceased to a better hospital. On 24.05.2004 the appellant again informed his wife’s condition and requested the respondent to allow him to shift to some other hospital. The respondents informed that they had all facilities including ventilator etc., being a super facility hospital and refused to shift the patient to another hospital. However, on 25.05.2004 at about 02.00 p m the respondents informed appellant no.1 that the condition of his wife was not satisfactory and due to insufficient staff in the hospital of the respondent to accompany the wife of the appellant no.1 to the Medical Trust Hospital at Ernakulam which was only half an hour distance from the hospital. The respondents took the wife of appellant no.1 to the Medical Trust Hospital, Ernakulam at around 05.00 pm when the night duty staff nurses reached the hospital. However, on the way to the Medical Trust Hospital, the condition of the appellant’s wife worsened and she was brought back to the hospital of respondent no.1, where she was declared dead. Appellant no.1 immediately lodged FIR no.343 of 2004 with the Police Station, Alappuzha the same day.

3. The appellants filed an Original Complaint OP no. 7 of 2006 on 20.05.2006 under section 17 of the Consumer Protection Act, 1986 before the State Commission, Kerala seeking compensation of Rs.50 lakhs for medical negligence, deficiency in service, mental agony etc.

4. The complaint was contested by the respondent by way of written version. The State Commission, on contest, dismissed the complaint filed by the appellants. However, the Court of Chief Judicial Magistrate, Alappuzha in FIR no. 343 of 2004/ Complaint Case no.230 of 2008 convicted respondent no.3 under section 304 A IPC on 03.05.2011. Hence, the appellant is before this Commission with the following prayer:—

(i) Pass an order allowing the present appeal and order may be modified by granting relief for an amount of Rs.50 lakh for mental agony, deficiency in service, medical negligence, loss of salary etc., with interest;

(ii) Award to the appellant cost of and relating to the present appeal; and

(iii) Pass such other and/or further (order(s) as this Hon’ble Commission may deem fit and proper in the fact and circumstances of the present case.

5. We have heard the learned counsel for the parties and have carefully considered the material on record.

6. Learned counsel for the appellant has stated that appellant no.1’s wife late Manju died due to medical neglige