Date of filing :15.05.2017 Date of order :02.07.2024 MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,MUMBAI, BENCH AT AURANGABAD.

FIRST APPEAL NO. : 728 OF 2017 IN COMPLAINT CASE NO.: 160 OF 2014 DISTRICT CONSUMER COMMISSION : LATUR.

The New India Assurance Appellant Company Ltd,. (Adv.M.M.Ambhore)

Ajay Engineering Compound, Adalat road, Aurangabad.

Through its Sr.Divisional Manager/

Authorized Signatory, Ravikant Rajendra Yadhav, R/o Aurangabad.

VERSUS

1. Sow Lata w/o Vasantrao Birajdar, Respondent No.1 R/o Pratapur, Tq.Basavkalyan, (Adv.S.N.Naikwade)

Dist.Bidar.

2. Dr.Ajit Jagtap, Respondent No.2 Medical Practitioner at Apex (Adv.V.M.Lomte)

Orthopaedic & Nero Surgery Hospital, Near in front of central Bus Stand, Latur.

CORAM : Milind.S.Sonawane, Hon’ble Presiding Member.

Nagesh C.Kumbre, Hon’ble Member.

J U D G M E N T

(Delivered on 02/07/2024)

Per Milind.S.Sonawane, Hon’ble Presiding Member.

This is an appeal challenging the correctness and legality of the judgment and order passed by the ld. District Consumer Disputes Redressal Commission, Latur (the ‘District Commission’ for short) in Consumer Complaint No.160/2014. By this impugned judgment the District Commission held the appellant liable for the medical negligence of respondent no.2 (the Doctor) who operated respondent no.1 by virtue of the professional indemnity policy, he had taken from the appellant. 2. Respondent no.2 is a doctor, who obtained the professional indemnity policy from the appellant. Respondent no.1 was suffering of Uterine Prolapsed and therefore, operated by respondent no.2 on 29.09.2006. However, in June 2012 when respondent no.1 was suffering from the pain in stomach, she went to Bhattad Nursing Home, Latur and taken some medication. Thereafter, also the suffering continued and she went to Saibaba Butukana Hospital , Omerga on 05.11.2013, where the sonography is done. The said hospital diagnosed that, there is some problem in the surgery performed by respondent no.2. and referred her to Adtittya Birla Memorial Hospital, Pune. On the advice of the Doctors she was examined by Dr.Naresh Rao, the Urologist. She was admitted from 04.12.2013 to 06.12.2013 in Ashwini Hospital. Dr. Naresh Rao found that, the portion of the body where the surgery done is having foreign body in it. On 17.12.2013 that portion is again opened in surgery, where one ‘cotton ball’ (foreign body granulomas) was found. It was removed in the surgery. The cotton ball found inside was negligently left by respondent no.2 while performing the surgery on 29.09.2006. Respondent no.1 claimed this to be negligent service on the part of respondent no.2 and claimed total compensation Rs.9,50,000/- . The ld. District Commission after hearing both the sides and examining the evidence filed by them held respondent no.2 liable for negligent service and by virtue of the professional indemnity insurance taken by him from appellant and directed the appellant to pay to respondent no.1 sum of Rs.4,30,000/-as a compensation along with interest @ 9 % p.a. from 28.11.2014 till the realization. It is also directed that, the appellant shall pay sum of Rs.6,000/- to respondent no.1 as the cost of the proceedings. It is against this order appellant has come before us in this appeal.

3. We heard the both sides. Also gone through the record and written notes of arguments filed by both the parties.

4. Adv.Ambhore by placing the reliance on A Padmawati Vs. M.Vijayandra and Anrs. 2016(2) CPR 662 and Dr.V.K.Gupta V.K.Neurocare Hospital Vs. Kishan kumar and Anrs. 2016(2) CPR 557 decided by the Hon’ble National Commission argued that, the ld. District Commission in absence of any cogent expert evidence held respondent no.2 liable for the medical negligence. Hon’ble National Commission in the aforesaid rulings emphasised that, there should be clear and cogent expert evidence to establish the fact that, the medical practitioner was negligent in treating the patient. It is also submitted by him that, respondent no.2 operated