State Consumer Disputes Redressal Commission
Dr. N.K. Agarwal vs Amar Singh on 26 February, 2026
SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026
Vs.
Sh. Amar Singh and Anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND,
DEHRADUN
Date of Admission : 04.04.2019
Date of Final Hearing : 27.01.2026
Date of Pronouncement : 26.02.2026
SC/5/A/128/2019
1. Dr. N.K. Agarwal, Surgeon S/o Sh. Rameshwar Das
City Hospital, Near Harikripa Petrol Pump
Ranipur More, District Haridwar
2. Dr. Ravindra Goyal S/o Sh. Banarasi Das Goyal
Dhanwantri Ultrasound, Chandrachary Chowk
Ranipur More, District Haridwar
(Through: Sh. Vijay Pal Tiwari, Advocate)
.....Appellants
VERSUS
1. Sh. Amar Singh S/o Late Sh. Ilamchand
R/o Mohalla Kadachh, Near Ice Factory,
Jwalapur, Tehsil & District Haridwar
(Through: None)
.....Respondent No. 1
2. National Insurance Company Ltd.
Branch Office: First 710-711, Opposite Sehgal Motors
Sotiganj, Meerut - 250001
(Through: Sh. Suresh Gautam, Advocate)
.....Respondent No. 2
Coram:
Ms. Kumkum Rani, President
Mr. C.M. Singh, Member
ORDER
(Per: Mr. C.M. Singh, Member):
1SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
This appeal under Section 15 of the Consumer Protection Act, 1986 has been directed against judgment and order dated 05.03.2019 passed by the learned District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 308 of 2013 styled as Sh. Amar Singh vs. Dr. N.K. Agarwal, Surgeon & Anr., wherein and whereby the complaint was allowed directing the opposite party Nos. 1 & 2 to pay Rs. 5,00,000/- as compensation for mental agony to the complainant alongwith interest @ 6% per annum from the date of filing the complaint case till the date of final payment and Rs. 10,000/- towards litigation expenses within a period of one month.
2. The facts giving rise to the present appeal, in brief, are as such that on dated 24.10.2012, the complainant suffered abdominal pain and approached to the opposite party No. 1 - Dr. N.K. Agarwal for consultation. It is alleged that the opposite party No. 1 advised him to undergo an ultrasound examination and recorded a prescription slip that he was suffering from appendicitis. The complainant was further advised to undergo surgery and was asked to deposit advance of Rs. 25,000/- towards proposed surgery. Feeling alarmed by the said advice, the complainant immediately underwent an ultrasound examination conducted by the opposite party No. 2, the report of which also indicated appendicitis. Thereafter, apprehensive about the surgery and expenses involved, the complainant visited Asha Hospital, Dehradun on dated 25.10.2012, wherein an endoscopy was performed under the supervision of Dr. Sanjay Saxena. According to the complainant, Dr. Sanjay Saxena ruled out appendicitis and instead diagnosed a minor abdominal infection, for which medication was prescribed. After taking the medicating prescribed by Dr. Sanjay Saxena, the complainant experienced relief. Subsequently, the complainant again underwent an ultrasound examination at another 2 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
diagnostic center in Haridwar on dated 27.10.2012, which reportedly shows no evidence of appendicitis and indicated a normal condition. For further confirmation, the complainant underwent another ultrasound examination at opposite party No. 2 on dated 30.10.2012 with the reference of Dr. Shashikant and was found normal. The complainant contended that contradictory medical opinions caused him considerable mental agony and financial loss and he suffered anxiety and sleeplessness for several days. The complainant further stated that he paid Rs. 200/- each as consultation fees to the opposite party No. 1 and Rs. 400/- towards ultrasound conducted by opposite party No. 2. Since, the opposite parties are private practitioners providing medical services for consideration, the complainant submits that he falls under the definition of 'consumer' and accordingly instituted the present complaint for the deficiency in service by the opposite parties.
3. The opposite party No. 1 in its written statement denied all the allegations made in the complaint case and stated that the same are false and concocted. It is further submitted that when the complainant consulted him, the answering opposite party advised the complainant to undergo an ultrasound examination, the report of which confirmed appendicitis. The complainant was duly informed of the said diagnosis. It is further submitted by the answering opposite party that appendicitis may be managed through surgical intervention and in suitable cases by treatment with antibiotics. The answering opposite party contended that although surgery was advised, but the complainant declined to undergo the procedure whereupon appropriate antibiotic medicine was prescribed. The answering opposite party has also contended that as per complainant's own averments and video Endoscopy conducted by Dr. Sanjay Saxena at Asha Hospital, Dehradun, did not reveal appendicitis. Dr. Sanjay Saxena prescribed medication for a minor abdominal infection and the complainant reportedly experience relief thereafter. The answering opposite party further 3 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
contended that appendicitis cannot be diagnosed through video Endoscopy and ultrasound is appropriate procedure to diagnose appendicitis. The antibiotic prescribed by Dr. Sanjay Saxena were substantially similar to those earlier advised by the answering opposite party. Further with regard to the subsequent ultrasound conducted under the supervision of Dr. Shashikant, the answering opposite party submits that Dr. Shashikant is a BAMS practitioner and not a qualified surgeon or physician and he is neither authorised to practice as allopathic medicine, nor can perform surgical procedures. It is further emphasized that the answering opposite party is duly qualified specialist General Surgeon, who provides treatment in accordance with modern medical standard. The answering opposite party further submits that he is covered under valid Professional Indemnity Insurance Policy bearing No. 460701/46/12/870000075 issued by National Insurance Co. Ltd. - opposite party No. 3 and that the insurance company has not properly impleaded as party. On this ground, the complaint of the complainant is not maintainable, hence it is liable to be dismissed.
4. The opposite party No. 2 in his written statement has denied all the allegations made in the complaint case and asserted that the same are false and fabricated. It is further submitted that the complainant underwent an ultrasound examination on dated 24.10.2012 and that the original ultrasound film and report is remained in his possession. The answering opposite party has contended that his conclusive opinion as to whether the complainant was suffering from acute appendicitis on that date and can only be found with original film and report. The complainant has not produced the said film and report before the District Commission which according to the answering opposite party would have clarified the true factual position. The answering opposite party was also pointed out that on dated 25.10.2012, the complainant visited the Asha Hospital, Dehradun and was prescribed medication by Dr. Sanjay Saxena for a mild abdominal 4 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
infection. The complainant reportedly experienced relief after taking prescribed medicines. The answering opposite party submits that it is entirely possible that on dated 24.10.2012 the complainant was suffering from acute appendicitis at an early stage. It was further contended by the answering opposite party that the appendicitis in appropriate cases may be treated with antibiotics as recognized in standard medical literature. The answering opposite party submits that the complainant himself stated that he took antibiotic on dated 25.10.2012 and showed improvement indicating positive response to the medicine. Additionally, the ultrasound report of Ratan Bharti Diagnostic Center, Haridwar dated 27.10.2012 was normal and a subsequent ultrasound conducted on dated 30.10.2012 at opposite party No. 2 also reveals normal findings. According to the answering opposite party, these reports demonstrate that the complainant was properly informed about the condition reflected in the ultrasound findings and that no deficiency in service can be attributed to the answering opposite party. He further submits that he is covered under a valid Professional Indemnity Insurance Policy bearing No. 460701/46/12/8700000413 issued by National Insurance Co. Ltd. - opposite party No. 3. On this ground the complaint is not maintainable, hence it is liable to be dismissed.
5. The opposite party No. 3 - National Insurance Co. Ltd. has filed its written statement and contended that the complaint against the insurer based on misconceived, incorrect and baseless allegations. The answering opposite party further submits that the opposite party Nos. 1 & 2 had obtained a Professional Indemnity Doctors Policy from the answering opposite party and that the insurer had no direct involvement or knowledge of the medical treatment rendered to the complainant. The answering opposite party further submitted that under the terms and conditions of the insurance policy, the insurer merely undertakes to indemnify the insured doctors against any legal liability to pay compensation subject to the policy 5 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
terms. The Insurer does not assume any direct liability towards the complainant. The District Commission has no territorial jurisdiction to hear and decide the complaint against the Insurer as the policy was issued from their Meerut Office. Accordingly, the answering opposite party has been unnecessarily arrayed as party to the proceedings and that no direct claim is maintainable against the answering opposite party under the provision of the policy.
6. The District Commission after hearing both the parties and after taking into consideration the facts and evidence on record, has passed the impugned judgment and order dated 05.03.2019 wherein and whereby the complaint was allowed in the above manner.
7. On having been aggrieved by the aforesaid judgment and order of the District Commission, an appeal has been submitted by the opposite party Nos. 1 & 2 as appellants alleging that the impugned judgment and order passed by the District Commission is without perusing the facts available on record and ignored the important evidence available on record. The District Commission has not appreciated the facts, evidence available on record and the impugned judgment and order was passed without proper appreciation of the material available on record and written statement filed by the appellants. No medical expert report was filed in the said case by the respondent No. 1 - complainant to establish medical negligence on the part of the appellants. The District Commission has overlooked the medical evidence that appendicitis cannot be diagnosed by the video Endoscopy and is confirmed through ultrasound. The Commission below has failed to appreciate that acute appendicitis in appropriate cases can be managed by antibiotic medicines. In the present case, the antibiotic medicines was prescribed by the appellant which indicates proper medical management. The District Commission undue reliance was placed on the opinion of 6 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
Dr. Shashikant, a BAMS practitioner not qualified to practice allopathy medicine or perform surgery. The impugned judgment and order is contrary to law, facts and findings as well as against the settled principles covering medical negligence.
8. Learned counsel Sh. Vijay Pal Tiwari for the appellants as well as learned counsel Sh. Suresh Gautam for respondent No. 2 has appeared. None has appeared on behalf of respondent No. 1, hence on dated 27.01.2026 an order for hearing the appeal ex-parte has been passed against the respondent No. 1.
9. We have heard arguments of learned counsel for both the parties and perused the material available on record.
10. Upon perusal of the record and considering the submission made by the parties, it is observed that the respondent No. 1 - complainant has failed to produce any expert medical opinion, affidavit of any specialized doctor or report of medical board to establish that the diagnosis of the appellant No. 1 - Doctor on dated 24.10.2012 was erroneous or below expected standard of medical practices. Further the fact that the respondent No. 1 took the antibiotic medicines prescribed by Dr. Sanjay Saxena and subsequently experienced improvement indicates that the same treatment initially advised by the appellant No. 1 - opposite party No. 1 was appropriate and consideration with expected medical principles. The respondent No. 1 has also failed to substantiate by any cogent evidence that the appellant No. 1 has advised him to undergo surgery for appendicitis. It is well settled that the burden to prove deficiency in service for medical negligence lies upon the respondent No. 1. Hence, no medical negligence or deficiency in service can be attributed to the appellant No. 1.
7SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
11. In so far the appellant No. 2 - opposite party No. 2 is concerned, the ultrasound examination is recognized and accepted diagnosed tool for suspected appendicitis. The subsequent ultrasound report dated 27.10.2012 & 30.10.2012 shown normal finding do not automatically invalid and negate the earlier diagnosed ultrasound dated 24.10.2012. The admission of the respondent No. 1 that he took antibiotic medicine prescribed on dated 25.10.2012 and showed improvement reflects that the respondent No. 1 was properly informed about his medical condition in the ultrasound findings on dated 24.10.2012. In the absence of any cogent finding produced by the respondent No. 1 to establish error or negligence in conducting or reporting the ultrasound examination, no deficiency in service or medical negligence can be attributed to appellant No. 2.
12. Since no deficiency in service or medical negligence has been established against the appellants, no liability can be fastened against the respondent No. 3 under the Professional Indemnity Doctors Policy.
13. Learned counsel for the appellants has cited following case laws, which are as under:-
1. Mrs. Anuja Chaudhary vs. Shivam Hospital & Research Institute &....... Decided on dated 18.03.2020 by the Hon'ble National Commission.
2. Kapil Aggarwal & 3 Ors. vs. Sarvodaya Hospital & Research Centre & 5 Ors., First Appeal No. 158 of 2012, decided on 08.02.2022 by Hon'ble National Commission.
3. Ram Gopal Yadav vs. Dr. Pushkar Anand & Ors., 2015(2) CPR 571 (NC).8
SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
14. In the case of Mrs. Anuja Chaudhary (supra), the Hon'ble National Commission has held that-
16. "The Hon'ble Supreme in Achutrao Haribhau Khodwa vs. State of Maharashtra & Ors., 1996 (2) SCC 634, had occasion to examine the test for determining negligence of reasonable skill, knowledge and care in the matter of performing his duties by a medical practitioner. It observed as:
The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. Now, let us test whether the material on 9 SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
record leads us to an inference of negligence on the part of the respondents."
15. In the case of Kapil Aggarwal (supra), the Hon'ble National Commission has emphasized the important principle of law that "every mishap shall not be construed as a negligence of the treating doctor or the hospital to fasten the liability."
16. In the case of Ram Gopal Yadav (supra), the Hon'ble Apex Court has held that in case of medical negligence, initial burden to prove medical negligence lies on complainant - Mere averments in complaint are not evidence.
The principle laid down in the above case laws cited by the appellants are fully applicable to the instant case.
17. In view of the foregoing discussion, it is apparent that the respondent No. 1 has failed to discharge the burden to prove medical negligence or deficiency in service on the part of the appellants. Accordingly, no deficiency in service can be attributed to both the appellants. Since no deficiency in service is attributable to the appellants, no liability can be fastened upon the insurance company - respondent No. 2.
18. We are of considered view that the District Commission has erred in appreciation of the material facts and law, while passing the impugned judgment and order. Therefore, we hold that the impugned judgment and order is liable to be set aside and the appeal deserves to be allowed.
19. Accordingly, the appeal is allowed. Impugned judgment and order dated 05.03.2019 passed by the District Commission, Haridwar is hereby set aside. Consumer complaint shall stand dismissed. No order as to costs of appeal.
10SC/5/A/128/2019 Dr. N.K. Agarwal & Anr. 26.02.2026 Vs. Sh. Amar Singh and Anr.
20. Statutory amount, if any, deposited by the appellants be returned to the appellants.
21. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order alongwith original record of the District Commission, Haridwar be sent to the concerned District Commission for record and necessary information.
22. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) President (Mr. C.M. Singh) Member Pronounced on: 26.02.2026 11