PARVINDER SINGH Vs. VED PRAKASH TRIVEDI

JUDGEMENT

(1.) HEARD Mr. R.K. Gupta, learned Counsel for the appellant, Mr. O.P. Duvel, learned Counsel for the respondent No. 1, Mr. Ved Prakash Trivedi and Mr. Rajesh Nath, learned Counsel for respondent No. 2 the National Insurance Company.

(2.) BEFORE we proceed to discuss the merit of the issues involved, we would like to observe the peculiar circumstances through which the case in hand has traversed. The complaint case No. 69/1997 of Sri Ved Prakash Trivedi was finally allowed by the District Consumer Forum, Shahjahanpur on 6.10.1998 and a compensation of Rs. 9,710 was awarded to him on the ground of there being deficiency on the part of Dr. Parvinder Singh, in the respondent's right kidney, the appellant's submission is that he had performed surgery to the best of his sincerity and proficiency. He was however, not ruled out there being left some stones as in 5 to 30% cases the stones being invisible cannot be removed. Dr. Parvinder Singh has added to the above averments that it is extremely difficult for a surgeon to probe into the kidney as it is likely to be damaged. That apart the possibility or re -occurrence of the malady of kidney stones cannot be ruled out.

(3.) IT is settled law that a complainant has to establish the case of a medical deficiency in service on the strength of his own merit and in order to discharge the said onus the complainant of the case in hand has not filed any medical expert opinion. He simply says that since a few stones had to be removed by another surgeon more than four months after on May 16,1996, it would be deemed that the deficiency had prevailed on the part of Dr. Parvinder Singh otherwise there was no question of the complainant having gone to another surgical operation. We cannot subscribe to the aforesaid view for the simple reason that a mere presumption cannot take the place of proof. A proof must be a positive one so as to clearly establish the plea of deficiency in service. We do not find any cogent reason for Dr. Parvinder Singh to have left some stones in the concerned kidney of the complainant particularly when he had removed many stones from the said kidney as were visible to him, and as were noticeable in the X -ray report. The contention of the appellant that the kidney could not be proved by touching here and there so as to explore the possibilities of some stones being on the other side of the kidney appears to be perfectly justifiable. There is no rebuttal of this contention. In other words, the respondent/complainant has not been able to meet this arguments bringing on record any medical literature so as to prove that a kidney can be probed during its operation by a surgeon.