JUDGMENT 1. Both these appeals arise out of one judgment and order in the case of Sh. Budh Ram Singh, complainant for claim on alleged medical negligence of Dr. N. Gulati. Dr. Gulati, appellant in one of the appeals. Therefore, both the appeals have been taken together for disposal. The appeal of Dr. N. Gulati is to be treated as leading appeal. A copy of the judgment shall be placed in the records of both the appeals separately. 2. Budh Ram Singh, the complainant was wedded with his wife Smt. Jeevan Kaur. Earlier Smt. Jeevan Kaur has got two children but on 27.3.97, she had a pregnancy of about 14 weeks. She had got some problems. The complainant, therefore, along with his will preferred to consult Dr. N. Gulati, the appellant on 27.3.97. Dr. Gulati advised her for ultra-sound, which she got from the Dhanwantri Ultra Sound on 27.3.97. It is said that Dr. Arun Goyal of Dhanwantri Ultra-Sound Centre in formed that there is a rasa Ii in the head of the child in the pregnancy and the child should be taken out by abortion. According to the complainant, Dr. Gulati got the victim admitted in her nursing home on 28.3.97 and started giving medicines for abortion. It is further alleged that in the night of 30.3.97 at about 1 :00 AM. she in the night of 30/31.3.97 at 1:00 A.M.) the abortion was done by the help of Vaccume machine. The condition of the victim deteriorated and on request, Dr. Gulati always told that the condition is within her control. On 3.4.97 Dr. Gulati called Dr. D. N. Taneja for the examination of the victim. Again, on 5.4.97, she called Dr. Vadera. On 6.4.97, she advised for xray and there was x-rayon 6.4.97 itself. In para 11 of the complaint, it is alleged that the left foot of the victim was not being raised and it is on 7.4.97 that there was a paralysis to the victim due to wrong treatment by the doctor. She referred the victim for examination and treatment in All India Medical Institute. Again, Dr. Gulati referred the victim for examination and treatment to Ram Krishan Sevashram. Ram Krishan Sevashram advised for CT Scan. On 10.4.97, there was CT Scan of the victim in Dehradun. On 10.4.97 itself at 10.30 P.M., the victim died in Ram Krishan Hospital. She referred the victim for examination and treatment in All India Medical Institute. Again, Dr. Gulati referred the victim for examination and treatment to Ram Krishan Sevashram. Ram Krishan Sevashram advised for CT Scan. On 10.4.97, there was CT Scan of the victim in Dehradun. On 10.4.97 itself at 10.30 P.M., the victim died in Ram Krishan Hospital. It is alleged in para 14 of the complaint that the death occurred due to negligence of doctor Gulati and also because her instruments were not properly sterilised. It is further said that Dr. Gulati operated the victim negligently which caused Cepticimia and Paralysis to the victim. It is to be noticed that earlier to para 14 of the complaint, there was no allegation of cepticimia for negligence, it is only in para 11 that a reference has been made for improper treatment. It is alleged in para 15 of t!1e complaint that Dr. Gulati took a sum of Rs. 25,00/- as operation charges and the complainant spent Rs. 25000/- on medicines. In her statement, Dr. Gulati has admitted that on 27.3.97, the complainant had come along with his victim in OPD. He was advised again to visit on 28.3.97 but instead, he came on 29.3.97 at 10.40 A.M. The doctor started giving proper treatment to stop bleeding. It is further alleged by the opposite party that there was automatic abortion at the time alleged by the complainant operates as such were used. The consultation of Dr. Taneja and Or. Vadera is also admiti:ed. It is alleged that in the morning of 3.97, the'victim was relieved and she went out all on foot. It is said that on 3.4.97 and 5.4.97 and again on 6.4.97, the victim appeared in the OPO. On 7.4.97, the victim was brought on the OPO and there the complainant was directed to get the victim treated in All India Medical Institute but she preferred to get herself admitted in Ram Krishan Hospital in Haridwar itself. The other facts as alleged in petition have been denied. 3. From the evidence on record, it is apparent that the complainant has filed his affidavit in support of his allegations whereas the opposite party Dr. N. Gulati has filed her own affidavit and affidavit wit of one Shri Vijay Kumar, her assistant compounder. Besides these affidavits, the parties have filed certain documents. 4. 3. From the evidence on record, it is apparent that the complainant has filed his affidavit in support of his allegations whereas the opposite party Dr. N. Gulati has filed her own affidavit and affidavit wit of one Shri Vijay Kumar, her assistant compounder. Besides these affidavits, the parties have filed certain documents. 4. After hearing the parties the learned Forum allowed the petition and granted a compensation of Rs. 2 lakhs and also the medical expenses of Rs. 15,000/- and cost of litigation of Rs. 2000/-. 5. The learned Forum held that since the nursing home of Dr. Gulati is insured the payment of compensation should be made by the Insurance Company. 6. Being agreed by this judgment and order, Dr. Gulati has filed her appeal whereas the Insurance Company has also filed an appeal alleging that there is no provity of contract between the complainant and the Insurance Company. It was further argued that the provisions of Motor Vehicle Act will not apply to the Consumers Protection Act and no direction can be issued to the Insurance Company that it should directly pay to the claimant. It was further argued that it is the doctor who can claim to be indemnified if she makes payment to the complainant. 7. We have heard the learned counsel for the parties and gone through the records. At the very outset, we can safely say that there is no question of any presumption. The negligence is to be proved by the claimant himself. In the recent ruling of 2003 (l) CPR 238, Mrs. Kiran Bala Rout u. Christian Medical College & Hospital, at has been held by the National Commission that it is the duty of the complainant to prove by expert evidence that there has been deficiency in service or negligence on the part of ' the doctor. It has further held in this ruling that medical negligence is to be established and not presumed. 8. In the ruling reported in 2001 (3) CPR 172, Ms. Rohini Devi v. Dr. H. S. Chudavat, the National Commission held that in the case of medical negligence, it is for the complainant to prove the negligence by examining expert witness. 9. In the ruling reported in 2003 (1) CPR 222, Dr. 8. In the ruling reported in 2001 (3) CPR 172, Ms. Rohini Devi v. Dr. H. S. Chudavat, the National Commission held that in the case of medical negligence, it is for the complainant to prove the negligence by examining expert witness. 9. In the ruling reported in 2003 (1) CPR 222, Dr. S, Gurunathan v. Vijaya Health Centre, the National Commission has held that if expert has not been examined, the complainant shall be deemed to have failed to substantiate and sustain his allegations that the doctors fell short of standard skills of any doctor. In 2003 (1) CPJ 153, Dr. Harkanwaljit Singh u. Gurbax Singh, there was a surgery and negligence in surgery was alleged, no expert opinion was given, the National Commission held that Forum or Commission cannot con" stitute itself to expert body and contradict the statement of doctor. In the ruling reported in 2003 (1) CPJ 57, Dr. Devendra Madan v. Shakuntala Devi, it has been held that it is the duty of the complainant to prove that the real cause of damage complained of was the negligence of the doctor. The complainant has also referred the ruling of Lucknow State Commission. This is much a ruling of condonation of delay than on any medical negligence. He again referred the ruling reported in 2002 (2) JCLR 844, Dr. J. J. Merchant v. Shrinath Chaturvedi. Nothing was decided in this case except that the matter in consumer disputes is not so complicated that it cannot be decided by the retired judges of Supreme Court and the High Court. Nothing was said on medical evidence, Again, the respondent referred the ruling reported in 1998 Current Law Rulings 242, M/s. Spring Meadows Hospital v. Harjot Ahluwalia in which principle of res ipsa loquitor was applied. In this ruling, it was proved that wrong drug and wrong gas was given which reduced the child to vegetative stage. There is no such proof in this particular case except mere allegation. 10. We have to see on the basis of this ruling whether there has been any negligence on the part of the doctor. We are not going into the details, when the victim was admitted, when she was discharged, but, we are going to see actually what has been done by the parties. 11. Admittedly the victim has got a pregnancy of 14 weeks. Admittedly there was some trouble. We are not going into the details, when the victim was admitted, when she was discharged, but, we are going to see actually what has been done by the parties. 11. Admittedly the victim has got a pregnancy of 14 weeks. Admittedly there was some trouble. According to the complaint, there was need for abortion while according to the doctor, the victim naturally aborted without the help of any outside hand or operatus or instrument. At any case, the victim was examined other as an OPD patient or indoor patient by Dr, Taneja and Dr. Vadera on two dates. Admittedly, it was for the first time detected 'on a 7/4/97 that the victim has developed paralysis. There is nothing in the complaint up till para 14 of the complaint when cepticimia was detected but for arguments sake, it can be presumed that cepticimia was also detected on 7.4.2003. 12. The abortion is in the night of 31.3.97 and it is for the first time that on 7.4.97 cepticimia and paralysis was detected. Before this date, the victim is said to have consumed a medicine of about Rs. 20,000/-. The Forum has also awarded a sum of Rs. 15,000/- as cost of treatment. Naturally these treatments have been provided by the doctor for the treatment of the patient. Not even a single word has been said anywhere that there was wrong prescriptions of medicines. No expert has been examined to show that any of the medicines as provided by the doctor has got any adverse affect on the victim. 13. The moot question which arises is how cepticimia developed. According to the complainant, cepticimia developed due to the use of vaccume machine by the doctor. The doctor is an expert in her business. She has also produced a paper that a child of 14 weeks cannot be aborted by vaccume machine. The doctor cannot be presumed to be a fool that knowing this fact, she will adopt vaccume machine for the abortion. After the abortion, the victim was examined by Dr. Taneja and Dr. Vadera. Some examinations were also made at Dehradun. She was also examined by doctors of Ram Krishan Hospital. None of these doctors have been examined by the complainant to say that abortion was made by vaccume machine. After the abortion, the victim was examined by Dr. Taneja and Dr. Vadera. Some examinations were also made at Dehradun. She was also examined by doctors of Ram Krishan Hospital. None of these doctors have been examined by the complainant to say that abortion was made by vaccume machine. There is nothing in the complaint or the affidavit of the complainant when he knew that vaccume machine has been adopted. If he knew this fact on 31.3.97 itself, then out of any of these doctors, he could have got a certificate that the victim was got aborted by vaccume machine. Not only this, on 7.4.97 cepticimia and paralysis has been detected and on 10.4.97, he not the CT Scan of his wife at the dispensary of Dr. Harish Bhatia of Dehradun. Again, he went to Haridwar and got the wife admitted in Ram Krishna Mission Hospital, Haridwar. We mean to say that the patient was not detained by Dr. Gulati in her nursing home. She was admitted in Ram Krishna Hospital on 7.4.97 and was free to go to Dehradun, in Dehradun itself, he could have got the opinion of some expert doctor that the abortion of the victim was made by vaccume machine. But the complainant did not like to have any expert evidence in this regard. Not only this, the death of the victim occurred on 10.4.97. It is not the case of the complainant that the dead body was not handed over to him after death. When he was sure of medical negligence, he could have got the postmortem of the dead body of the victim to be sure that the abortion was made by the vaccume machine and the victim died due to the negligence of Dr. N. Gulati. It is true as argued by the learned counsel for the appellant that if abortion could not have been done by vaccume machine as admitted by the appellant and even then it was done by vaccume machine, negligence shall be presumed and principle of res ipsa ioquitor shall apply but it is also true that if this system was not adopted and cepticimia developed for some other reason, the doctor cannot be held to be guilty of negligence. At any rate how and why cepticimia and paralysis had developed is to be proved by the complainant and not by the doctor. At any rate how and why cepticimia and paralysis had developed is to be proved by the complainant and not by the doctor. There cannot be any presumption that the doctor got the victim aborted and therefore by her negligence cepticimia and paralysis developed. Doctor only treats, it is the God who cures. Life and death is in the hands of God. If the doctor took care of a prudent doctor merely because the victim died, there cannot be any presumption of negligence. It is to be proved as a fact and for that the complainant should have produced the affidavits of any of the doctors who have examined the victim. It cannot be proved by any amount of argument that every doctor is dis-honest and as Dr. Gulati is a doct0r, the other doctors who have examined the victim must have given false affidavits. There is no reason to believe that the other doctors could not have filed affidavit to prove the case of the complainant had the abortion been made by vaccume machine. If the doctors were hesitant in filing the affidavit, they could have been summoned through the process of the Forum to prove the allegations of the complainant. The postmortem report could have revealed the true fact. Even the skeltons in grave, if examined subsequently even after 6 months the true facts come out. Immediate post mortum could have revealed the true situation. Cepticimia or paralysis may be for variety of reasons. The child in pregnancy was having rasoli. The victim was bleeding. It is not the case of the complainant that she was rever bleeding. From the very beginning, treatment of bleeding was made. Bleeding naturally causes some injuries. There may be infections. Bacterial infections usually occur in the best of the hospitals, where usually occur in the best of the hospitals, where best of the cares are taken. Cepticimia and consequent paralysis may be because of outside infection as well and there is no evidence in this particular case why this developed. At least, the doctor is a well qualified doctor, she has prescribed medicines worth Rs. 15000/- to Rs. 20000/-. According to the complainant, all this was administered, there is no allegation that any medicine was given uselessly still if cepticimia developed, nobody can help it. 14. At least, the doctor is a well qualified doctor, she has prescribed medicines worth Rs. 15000/- to Rs. 20000/-. According to the complainant, all this was administered, there is no allegation that any medicine was given uselessly still if cepticimia developed, nobody can help it. 14. The sole affidavit of the petitioner falls short of proof of any of the allegations of the complainant. Again to revert to the same' argument merely be cause the victim died, the doctor can not be held to be guilty. Even if the own case of the complainant is believed, then also what better the doctor can do other than by getting the examination and treatment by best doctors of Haridwar namely Dr. Vadera and Dr. Taneja. Merely because the victim was referred to All India Medical Institute, New Delhi or Ram Krishan Mission Hospital, it cannot be said that the doctor was negligent. Everybody has got his own limitations. There are hospitals of grades and naturally if any doctor finds that the victim has become out of her control, she will refer her to a better hospital. PH.C. refer the victim to district hospital, district hospitals to medical colleges and medical colleges refer the victim to All India Medical Institute or PGI, it depends upon the nature of illness, the severity of illness and the condition of the patient. By making a reference to All India Medical Institute or Ram Krishan Mission Hospital, it cannot be said that the doctor was negligent, to the contrary it was her duty to have referred the victim to such hospital because the doctor, Smt. N. Gulati as alleged appears to be a lady doctor where deliveries are made and her nursing home is meant for that as is clear from the patient's register. She is not said to be an expert in the matters of cepticimia or paralysis. If cepticimia or paralysis developed not because of her negligence but for some other reasons, she has got no option but to refer the victim somewhere else for the treatment of cepticimia and paralysis. 15. The learned Forum has gone only through presumptions. She is not said to be an expert in the matters of cepticimia or paralysis. If cepticimia or paralysis developed not because of her negligence but for some other reasons, she has got no option but to refer the victim somewhere else for the treatment of cepticimia and paralysis. 15. The learned Forum has gone only through presumptions. It did not examine the true nature of the case and• on careful examination of the entire facts and circumstances of the case it is appeared that the complainant could not prove the negligence of the doctor and since there was no negligence of the doctor, there is no deficiency in her service and there is no question of any compensation to the claimant. This is not a motor vehicle case where some compensation must be given even if negligence of the doctor is not proved. The result of negligence alone can be a ground to award compensation. 16. Since, doctor herself is not liable to pay any compensation, there is no question of any compensation by the Insurance Company. As a result both the appeals are to be allowed. ORDER The appeal No. 235/2002 & 2571 2002 passed by the District Forum, Haridwar are hereby set aside. The complaint of the complainant is hereby dismissed, however, in the circumstances of the case cost of the •District Forum as well as this appeal shall be easy.