SHARIQUE A.ALI vs A.M.LAHARI

THIS is an appeal against the order dated 3.1.1996 passed by the District Consumer Disputes Redressal Forum, Bhopal in their Case No. 161/92, wherein the Forum has dismissed the complaint of the appellant for compensation from opposite party for negligence in the treatment of the complainant.

THE grounds for appeal are as under: (i) That the District Forum committed error in not holding that a duty was cast upon the opposite party to have X-rayed the right upper arm including the humerus. (ii) THE inference drawn by the Forum regarding not filing the affidavits of Dr. Nirbhay Srivastava & Dr. Patidar is not justified. (iii) That the opposite party was required to prove that he acted in the desired manner. (iv) That adverse inference should have been drawn against the opposite party for not producing case history sheets, etc. (v) That Forum wrongly held that the opposite party was not expected to diagnose something which was not complained. (vi) That the conclusion arrived at by the District Consumer Disputes Redressal Forum is against the facts and rule of law.

Heard the arguments of both the parties and perused the record of the case.

The appellant has not specified as what are the facts which have been overlooked by the Forum or which of the conclusions are against actual facts. The very fact that Dr. Nirbhay Srivastava did not advise X-Ray of upper arm and shoulder on 9.3.1992 and X-rayed the right shoulder a fortnight later i.e. on 24.3.1992, establishes that an Orthopaedic Surgeon of the status of Reader in Orthopaedics in a Medical College even, did not consider it necessary to have the X-Ray done as late as ten days after the accident. Then how could the opposite party be expected to take X-Ray of this portion of the body of his own immediately after the accident, unless complained of. Even if the appellant was in state of emotional shock, trauma and distress at the time of admission, he could have complained of continued pain in the upper arm at the time of discharge, but he did not. There is no expert opinion as to why the X-Ray was not taken on 9.3.1992 and was delayed for a fortnight thereafter. In the absence of any evidence no adverse inference can be drawn against the opposite party. So far as the question of non-production of casehistory sheets is concerned, the appellant had never asked for their production. Hence no adverse inference can be drawn for their non-production. The appellant h as totally failed to specify as to what are the facts which have been overlooked by the Forum or which of the conclusions are against facts or against rule of law.

WE find nothing on record to the effect that there has been any kind of professional negligence by the opposite party. The appeal is therefore dismissed. No order as to costs. Appeal dismissed. ________________