BRAJESWAR MISHRA Vs. SIRISH KUMAR ACHARYA

JUDGEMENT

(1.) APPELLANTS which were the Opposite Parties before the State Commission have filed this Appeal against the judgment and order dated 28.11.2007 passed by the State Consumer Disputes Redressal Commission, Orissa (in short, 'the State Commission') in C.D. Case No. 13/1999 whereby the State Commission allowing the complaint has directed the Appellants jointly and severally to pay the sum of Rs. 8,00,000 to the Complainant No. 1 by 31.1.2008 failing which the amount shall carry interest @ 9% p.a. from the date of death of the deceased, i.e. 17.11.1998.

(2.) APPELLANTS entered appearance through their Counsel but did not file the written statement. They were proceeded ex parte as none of the Appellants or their Counsel appeared at the time of final hearing. Since the averments made in the complaint and the evidence led by the Respondents remained unrebutted and uncontroverted, State Commission taking the averments made in the complaint duly supported by the affidavit of the Complainants, to be correct allowed the complaint and directed the Appellants jointly and severally to pay the sum of Rs. 8,00,000 to the Respondent by 31.1.2008 failing which the amount was to carry interest @ 9% p.a. from the date of death of the deceased, i.e., 17.11.1998 till realization.

(3.) THERE can be no dispute that the nature of MTP and LAP -BTL operation is simple and non -fatal operation conducted throughout the country as a measure of family planning programme. The Opposite Party No. 1 is a M.D. It was expected that he utilized better degree of care and caution during both the operations. The death certificate Annexure -4 shows that she died while performing laparoscopic operation. In absence of anything to the contrary, we are inclined to hold that the opposite party No. 1 was negligent in performing the operation which amounts to deficiency in service.