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III. The appeal bearing No.A/09/844 filed by Dr.Sheel Shyam Laddha is hereby dismissed.

IV. No order as to cost in the said appeal No.A/09/844...."

5. Ld. Counsel for Petitioner has argued that that the Petitioner was only called upon by Respondent No. 2 to perform the Umbilical Hernia Repair operation, as she lacked the qualifications to perform such a procedure. He did not receive any consideration from the Complainants for the operations, thus falling outside the purview of the Consumer Protection Act; That the State Commission overlooked the documentary evidence, which had correctly held the Respondent No. 2 responsible. The State Commission erred by presuming a common case for both the Complainants and issuing order for what they view as a single cause of action, which is impermissible under the Consumer Protection Act; That the Caesarean operation was pre-planned and performed by Respondent No. 2, and the Petitioner only conducted the Umbilical Hernia Repair after her completion of the initial operation. As such no liability should be attributed to the Petitioner in this matter.

7. The Respondent No. 2 has contended that that it was the Petitioner who conducted the operation on the Complainant, with the Respondent No. 2 merely assisting.  Any negligence, therefore, should be attributed to the Petitioner alone, and the orders passed by the lower Fora are inconsistent with the evidence on record; That the Complainant specifically called the Petitioner for the Caesarean operation due to its complexity, and the complaints clearly indicate this; That the State Commission's finding that the Respondent No. 2 independently performed the Hernia Operation lacks basis, as both procedures were conducted simultaneously under the same Anaesthesia by the Petitioner; That the Respondent No. 2 expressed genuine concern about  the possibility of a sponge being left in the abdomen and advised the Complainant to undergo surgery for that purpose which shows her bonafides. 

8. This Commission has heard both the Ld. Counsel for Petitioner and Respondents, and perused the material available on record.

9. It is undisputed that a piece of sponge measuring 22x20 cms. was actually removed from the abdominal cavity of the Complainant- Rachna more than 03 months after the Caesarean and UMBILICAL HERNIA REPAIR were performed upon her in Janki Hospital on the same date when the patient was under the same Anaesthesia.  The Ld. District Forum in its Order had meticulously noted down the chronology of events in Para 14 of its Order by bullets indicating the various developments.  For the sake of convenience, however, those bullets are being numbered here for ready reference.  The chronology recorded by the Ld. District Forum is as follows -

16. In the second photograph, the location of "Umbilical Hernia" is depicted directly on the Navel area, in the form of a small button like mass.  The Caesarean operation leading to delivery of the female child was obviously performed by the Female Gynaecologist concerned, which happens to be Dr. Sheel Laddha in her own Hospital by the name of "Janki Clinic".  So, the mop/sponge left inside the abdominal cavity, in the "Left iliac" region could not have been left there by the General Surgeon, whose role was limited to the "Umbilical Hernia Repair" in the "Umbilical Region" alone, which was obviously done separately from the Caesarean Procedure performed by the Respondent-Dr. Sheel Laddha. Furthermore, the fact that in her own document dated  24.5.2000 which was led  in  evidence  as Exhibit  - E, and  which is on record at Page No. 126 & 127 of the Paper Book.  It was specifically noted by Dr. Sheel  Laddha, in her own handwriting that "sponge left in abdominal cavity was in my mind". This noting itself is a give-away that the said Gynaecologist was aware of the fact that sponge in the abdominal cavity had been left, which obviously could have been done only by her, as the Caesarean part of the Procedure was performed by her alone as a Gynaecologist, while role of the Petitioner was restricted to repair of the Umbilical Hernia, located in a different region of the patient's body, although the two procedures were performed on the same date for taking advantage of the Anaesthesia which in any case had to be administered to her for either of the procedures.