SENTHIL SCAN CENTRE Vs. SHANTHI SRIDHARAN

JUDGEMENT

(1.) LEAVE granted.

(2.) THIS appeal arises out of an order dated 12th January, 2009 passed by the National Consumer Disputes Redressal Commission. The facts giving rise to the impugned judgment have been set out in the order passed by the National Commission. We, therefore, need not repeat the same over again. Suffice it to say that the respondent had made a claim for payment of compensation against the appellant-Scan centre on account of alleged deficiency in service inasmuch as the Centre was not in a position to accurately detect the limb reduction deformity of a child that was in the womb of the respondent-claimant at the relevant time. The complaint filed by the respondent alleged that the deformity in question could have been cited by the doctor conducting the ultrasound but was not so detected on account of negligence on his part. The State Commission accepted that version and awarded a sum of rupees five lakhs to the complainant holding that there was indeed a deficiency in the service provided by the centre. The National Commission dismissed the appeal preferred by the centre and upheld the award made against it. The National Commission held that the fetus had only a stump below the elbow without any forearm, and that one could not believe that such an obvious anomaly could escape the scrutiny of a specialist who is expected to observe the scan carefully. This, according to the National Commission, implied a deficiency in service on the part of the centre for which the complainant had been rightly compensated. The appellant has assailed the above order before us as already noticed.

(3.) IN Martin F. D'Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC)=2009 (3) SCC 1, this Court had adopted the above test as applicable to cases of medical negligence in this country. This Court relied upon the following passage from Hunter v. Hanley, 1955 SLT 213, which deals with the tests applicable for establishing negligence in diagnosing or treatment on the part of a doctor: