ORDER K.D. Shahi, Chairman- This is an appeal against the judgment and order dated 16.10.2001 passed by the District Forum, Nainital whereby the appellant was directed to pay a sum of Rs. 63,500/- along with the cost of litigation to the complainant on the ground of medical negligence. 2. The brief facts of the case are that Smt. Raisan Chand has developed some problem in her left breast. She got it medically examined from Dr. Rajeev Kumar Setiya, opposite party No.2 of the complaint. Dr. Setiya referred the complainant to Major R.C. Pande of Raghav Pathology, opposite party No.1 to the complaint for pathological test and biopsy. The complainant got her pathological test from Dr. R.C. Pande of Raghav Pathology. Dr. R.C. Pande reported that there was cancer in the breast of the complainant. On the basis of this report Dr. Setiya operated the breast and removed. The complainant and her husband, had requested Dr. Setiya after the receipt of the report of Dr. Pande that if necessary again there may be pathological test. Dr. Setiya did not hear and said that the report of Dr. Pande is 100% correct. After the operation of the breast• a piece was sent to Mehrotra Pathology, Lucknow for further examination, from where it was reported that there is no cancer at all. The complainant suffered physical and mental pain and financial loss due to this unwanted operation. It has been done because of the negligence of opposite party Nos. 1 and 2. Therefore, the complaint was filed. 3. The opposite party No.1 in his written statement has said that the complainant was never sent for pathological investigation and biopsy but she was sent by Dr. Setiya for F.N.A.C(Fine Needle Aspiration Cytology) for which he himself aspirated fluid from the growth in the breast. He was not instructed to do any biopsy. It is alleged that biopsy and F. N .A. C are totally different terms and totally different procedures. The F.N.A.C report given by the opposite party No.1 only gave impression of the microscopic finding of the aspirated fluid and had only suggested that "Duct Carcinoma should be considered". The opposite party did not give any confirmatory diagnosis, therefore, opposite party No.2 Dr. Setiya should have advised for further laboratory investigation, he only gave impression and not any confirmatory diagnosis. The opposite party did not give any confirmatory diagnosis, therefore, opposite party No.2 Dr. Setiya should have advised for further laboratory investigation, he only gave impression and not any confirmatory diagnosis. It is alleged that only a small portion of the breast was sent to Dr. Mehrotra for test. It is possible that the affected portion might not have been sent. There was no negligence on the part of the opposite party No.1. He never gave any incorrect report, Dr. Setiya should have made the complete investigation. The report of Dr. Mehrotra is different test on the basis of biopsy while his test is on the basis of F.N.A.C Opposite party No.1 has never suggested for any Mastectomy. He is not liable to pay any compensation. 4. In his written statement Dr. Setiya alleged that he is an employee of opposite party No.3 and renders services on behalf of opposite party No.3. The hospital charges .such fee as prescribed. It is further alleged that opposite party No.2 examined the patient on 11.10.1996. It is alleged that opposite party No.2 never referred the patient for pathological examination to opposite party No. 1. She was only advised to obtain a report from any pathologist to confirm that she has a cancer or not. The opposite party gave a list of pathologists and the petitioner herself visited opposite party No.1 and got the F.N.A.C. report which showed that she had a cancer in her 1eft breast. The complainant desired to get it removed as early as possible. It is alleged that the hard consistency of breast lump and fixity to the breast tissue and adhered overlying skin with lump were very much in favour of cancer. It ruled out any inflammatory lesion. The aforesaid symptoms allowed the opposite party No.2 to suspect malignancy for which the patient was advised F.N.A.C. of lump. On examination of the report of opposite party No. 1 Dr. Setiya found that F.N.A.C discloses Duct carcinoma of breast which leaves no doubt that it was a cancer. Respondent No.1 never suggested that F.N.A.C. should be reported. On the report of the opposite party No.1 who found that it shall be better option to get the cancer removed, the breast was removed. Setiya found that F.N.A.C discloses Duct carcinoma of breast which leaves no doubt that it was a cancer. Respondent No.1 never suggested that F.N.A.C. should be reported. On the report of the opposite party No.1 who found that it shall be better option to get the cancer removed, the breast was removed. On the consent of the complainant and her husband the removed mass of the breast was handed over to the petitioner for further F.N.A.C to check the further line of treatment to avoid any cancer in future. There is no negligence on the part of the opposite party No.2. All facilities have been provided by opposite party No.3. It is said that all the pathologists never right confirmatory report, they only give suggestive report. 5. Both the parties led evidences before the learned Forum and the learned Forum was of the view that there has been negligence on the part of the opposite party No.2 and opposite party No.3 where opposite party No.2 was employed and, therefore, awarded that compensation should be paid by opposite party Nos. 2 and 3. However, opposite party No.1 was relieved and no order was passed against him. 6. Being aggrieved by this order, Uttaranchal Forest Hospital Trust has filed the appeal before the District Forum, Lucknow which was admitted and transferred here for hearing. 7. We have heard the learned Counsels for the parties and gone through the records. No appeal has been filed by the complainant against the order of the Forum dismissing the complaint against Dr. Pande, Raghav Pathology. Therefore, the order against opposite party No.1 of the complaint becomes final. The order insofar as it relates to opposite party No.1 has become final. 8. The first question is, whether the report of Dr. R.C. Pande was a final report and Dr. Setiya should have persisted outright for operation. It may be true to some extent that Dr. Setiya did not advise the complainant to visit Dr. R.C. Pande particularly, he may have advised her to visit any reputed doctor. But if this argument is taken to be correct then that goes against the appellant because he should not have persisted for operation on the first and primary report only that it is suggestive of the cancer. Setiya did not advise the complainant to visit Dr. R.C. Pande particularly, he may have advised her to visit any reputed doctor. But if this argument is taken to be correct then that goes against the appellant because he should not have persisted for operation on the first and primary report only that it is suggestive of the cancer. He may have persisted for operation on the first report of the doctor on whom he has got 100% confidence, but if there is report of some other doctor on whom the appellant has got no full confidence then persisting for operation that too in case of a cancer, he should have got deliberations twice and should have got confirmatory report from some pathologist also. Dr. R.C. Pande gave a report that the case is to be considered as a case of cancer, Dr. Setiya in his all haste and hurry immediately persisted for operation without getting the confirmation from some other doctor. It could have been possible for him to have got another F.N.A.C before persisting for operation itself. It is true that F.N.A.C. is a different report and different procedure. It is still true that Biopsy is also a different pathological investigation. But if these are true then there should have been a cross-checking by F.N.A.C. and Biopsy about the presence of cancer in the breast. Dr. R.C. Pande as also specifically mentioned in his written statement that on the observations• and impressions given by Dr. Setiya ought to have advised the complainant for further laboratory investigation. It may be true to some extent that the pathologists are in a habit of giving only suggestive report, they never give confirmed diagnosis, as some examples have been filed by the appellant, then also in a case like this confirmation before operation is necessary. The complainant is a countryside illiterate lady. If she has got absolute faith on the doctor she cannot be blamed that she and her husband 'out of their blind eye outright considered for operation and did not go for further investigation. It was not the duty of the complainant, a village and countryside lady that she should herself persist for reinvestigation but it was the duty of the doctor to have suggested to the patient that look here your life is in danger, there should be thorough investigation about the existence of the cancer. It was not the duty of the complainant, a village and countryside lady that she should herself persist for reinvestigation but it was the duty of the doctor to have suggested to the patient that look here your life is in danger, there should be thorough investigation about the existence of the cancer. Doctor truly lacked in his duties in not advising the complainant from getting her again examined to confirm the report of Dr. R.C. Pande. 9. It was argued by the learned Counsel for the appellant that, to Dr. Mehrotra only a small piece of the breast was sent for F.N.A.C. examination. It may be that the affected portion might not have been sent. We take it as true that it is also the duty of the doctor to preserve the affected portion and to send the affected portion only for examination. If the appellant did not send, he cannot blame Dr. Mehrotra or the complainant that it may be decided that affected portion might not have been sent but the duty of sending was that of only the doctor who operated but not of the complainant. Dr. Mehrotra will examine only the portion, sent to him. It is said that the entire left breast was of hard consistency and the jump and fixity to the breast tissue and adhered overlying skin with a lump were very much in favour of the cancer. If the entire lump was not tender and if any part of it was sent for test to Dr. Mehrotra it cannot be argued that the affected portion might not have been sent. 10. The doctor has made the life of poor lady wretched by this uncalled for operation. Her breast has lost her feminine character. In the circumstances as such the compensation as awarded cannot be said to be excessive. The compensation was rightly allowed and this appeal has got no force and it is to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy. Appeal dismissed.