NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of SLP(C) No.19165 of 2009)
Minor Marghesh K. Parikh ........Appellant
Versus
Dr. Mayur H. Mehta .......Respondent
JUDGMENT
G.S. Singhvi, J.
1. Leave granted.
2. This appeal is directed against the order of the National Consumer
Disputes Redressal Commission (for short, `the National Commission’)
whereby the appeal preferred by the respondent under Section 19 of the
Consumer Protection Act, 1986 (for short, `the Act’) was allowed and the
order passed by the State Consumer Disputes Redressal Commission,
Gujarat (for short, `the State Commission’) for payment of compensation of
Rs.5,00,000/- to the appellant with interest @ 9% per annum was set aside.
2
3. The appellant was admitted in the hospital of the respondent on
31.10.1994 with the complaint of loose motions. After some laboratory
tests, the respondent put him on medication and also injected glucose saline
through his right shoulder. This did not improve the condition of the
appellant, who started vomiting and having loose motions frequently. On
3.11.1994, the respondent is said to have administered glucose saline
through the left foot of the appellant. In the evening, the parents of the
appellant noticed swelling in the toe of his left foot, which was turning
black. This was brought to the notice of the respondent, who stopped the
glucose. On the next day, the parents of the appellant pointed out to the
respondent that blackish discoloration had spread. Thereupon, the appellant
was sent to one Dr. Chudasama, who was known to the respondent. Dr.
Chudasama applied a small cut, removed black coloured fluid from the left
toe of the appellant and gave some medicines. In the morning of 5.11.1994,
it was noticed that the left leg of the appellant had become totally black up
to the knee. Thereupon, he was taken to Vadodara. Dr. Ashwin Bhamar,
who examined the appellant at Vadodara suspected that he had developed
gangrene in his left leg and advised his admission in Bhailal Amin Hospital.
The appellant was operated in that hospital and his left leg was amputated
below the knee.
3
4. The appellant filed a complaint through his father and claimed
compensation of Rs.10,00,000/- by alleging negligence on the part of the
respondent. According to the appellant, even though the factum of swelling
of the toe and blackening of the leg was brought to the notice of the
respondent, he did not bother to get the appellant examined through an
expert, which could save his leg. It was also pleaded that due to the
respondent’s failure to pay requisite attention, the appellant’s left leg had to
be amputated below the knee and he will suffer throughout his life.
5. In the written statement filed by him, the respondent claimed that the
appellant was hospitalized for gastro-enteritis, dehydration acidosis and
septicemia shock and mal-nutrition and anemia and seriousness of the case
was communicated to his father. According to the respondent, treatment
was given to the appellant keeping in view the laboratory reports and no
glucose was administered after 2.11.1994. The respondent denied the
allegation of negligence and pleaded that he had taken every possible care in
treating the appellant and even got him examined by Dr. Chudasama despite
the fact that his hospital was closed on account of holidays.
4
6. The State Commission did not accept the version of the respondent
that the appellant had been brought to his hospital in a serious condition by
observing that if this was so, there was no reason for him to stop medication
and glucose. The State Commission noted that the case papers were
produced by the respondent after a time gap of 6 years and that too after
cross-examination of the complainant’s father and vascular surgeon, Dr.
Ashwin Bhamar, who was produced as an expert. The State Commission
further noted that the respondent had not filed the affidavit of Dr.
Chudasama, to whom the appellant is said to have been taken for further
treatment. The State Commission concluded that the respondent had not
exercised reasonable care while treating the appellant and awarded
compensation of Rs.5,00,000/- with interest at the rate of 9% from the date
of complaint. The relevant portion of the order passed by the State
Commission is extracted below:
“After completion of oral arguments respondent has submitted
written arguments of seven pages. In that many quotations
from medicine text Book and Medical Journals have been cited.
The crux of that is gangrene can take place because of so many
reason, because of serious type of dehydration and septicemia
also it can happen so only because of Glucose bottle this can
take place this cannot be said. In this case patient had serious
dehydration that could not be established by respondent.
Because had that been a reality then the Glucose bottle could
not be administered inter vein and if the condition of minor
patient was this much serious then in five days not a single
laboratory test was carried out that is beyond perception.
5
Moreover, it is mentioned in these quotations that gangrene can
happen to any leg or hand whereas here it is clear fact that
where the bottle was given to the same leg it has happened.
Moreover the Vascular Surgeon Dr. Bhamar says in his cross-
examination that “it has not come in my examination that if
there is vomiting and loose motion it results in gangrene.”
Thus the person like Vascular Surgeon having an experience
given contrary opinion to the quotations submitted by the
respondent. Moreover in his affidavit Dr. Bhamar clearly states
that in this case because of the Glucose bottles gangrene has
taken place as against this the respondent has not produced any
opinion of expert doctor or Dr. Chudasama on oath. In our
honest opinion the value of quotations is negligible as against
the opinion of expert doctor. Because opinion of expert doctor
explains these quotations and is given.
It is necessary to note here that respondent submits that the
treatment given by respondent himself and symptoms recorded
by him like swelling, blackness of the skin and in support to the
condition of the patient at every stage he took advise from Dr.
Chudasama but here no affidavit of Dr. Chudasama is
produced. Therefore the truthfulness of this submission cannot
be verified. Moreover as stated above after admitting in the
hospital no tests have been carried out that also catches the
attention. Thus what Dr. Chudasama said, was his diagnosis
what he had advised when this advise was given these questions
are remaining unanswered.
The crux of that is gangrene can take place because of so many
reason, because of serious type of dehydration and septicemia
also it can happen so only because of Glucose bottle this can
take place this cannot be said. In this case patient had serious
dehydration that could not be established by respondent.
Because had that been a reality then the Glucose bottle could
not be administered inter vein and if the condition of minor
patient was this much serious then in five days not a single
laboratory test was carried out that it beyond perception.
Moreover it is mentioned in these quotations that gangrene can
happen to any leg or hand whereas here it is clear fact that
where the bottle was given to the same leg it has happened.
6
Moreover the Vascular Surgeon Dr. Bhamar says in his cross-
examination that. “It has not come in my examination that if
there is vomiting and loose motion it results in gangrene.”
Thus the person like Vascular Surgeon having an experience
gives contrary opinion to the quotations submitted by the
respondent. Moreover in his affidavit Dr. Bhamar clearly states
that in this case because of the Glucose bottles gangrene has
taken place as against this the respondent has not produced any
opinion of expert doctor of Dr. Chudasama on oath. In our
honest opinion the value of quotations is negligible as against
the opinion of expert doctor. Because opinion of expert doctor
explains these quotations and is given.
Thus the Glucose bottle was given to the left leg to it swelling
came and skin became black and that resulted into gangrene
regarding that no proper action was taken and because of that
the one and half year old child had to loose leg below the knee
is proved with support of affidavit of an expert the Vascular
Surgeon. As against this, respondent has produced his reply
and only certain quotations. The most important thing is that
respondent is not caring to produce the affidavit of such
surgeon Dr. Chudasama whose opinion that was taken.
Considering all these facts and circumstances as per our honest
opinion clear cut defective service on the part of respondent is
established.”
7. The National Commission allowed the appeal preferred by the
respondent and set aside the order of the State Commission only on the
ground that in his cross-examination, Dr. Ashwin Bhamar admitted that
there could be ten other reasons for gangrene. This is evident from the
following portion of the order of the National Commission:
“Copy of the affidavit of Dr. Bhammar is at pages 121 to 123
and his cross-examination is at pages 124 & 125 in Vol.IV of
the paper book. To be noted that besides the affidavit of Dr.
7Bhammar only the affidavit of the father of respondent was
filed by way of evidence. In this affidavit Dr. Bhammar has
averred that he has been practicing as vascular surgeon at
Baroda and has been attending Bhailal Amin General Hospital.
On 05.11.1994, respondent was brought to him by his father for
treatment. He found gangrene on his left leg and advised
amputation of left leg immediately. Reason for gangrene may
be wrong application of glucose bottle on the left leg. In cross-
examination, he admitted that there could be 10-12 other
reasons for gangrene. It did not come to his notice that
gangrene may occur if a patient has diarrhea and vomiting. In
this case, he can not definitely say what was the reason for
gangrene. In the impugned order, the State Commission has
omitted to refer the admissions made to the said effect by Dr.
Bhammer. As may be seen from the averments made in
complaint, the case of the respondent is that wrong application
of glucose on left leg of on 3.11.1994 had caused gangrene. In
the written version, the appellant has pleaded that respondent
was not given any intravenous fluids from 11.30 pm on
02.11.1994 to 04.11.1994. Assuming this plea to be false and
accepting the case of the respondent that he was given
intravenous glucose on 03.11.1994, still in view of the
admissions referred to above made by Dr. Bhammer, the
appellant cannot be held guilty of medical negligence. Having
reached this conclusion the other part of the submission,
advanced on behalf of the appellant, need not be gone into.
Order under appeal thus, cannot be legally sustained and
deserves to be set aside.
8. In Jacob Mathew v. State of Punjab (2005) 6 SCC 1, a three-Judge
Bench, considered the question whether charges could be framed against the
appellant under Section 304A read with Section 34 of the Indian Penal Code
on the allegation of negligence. The three-Judge Bench highlighted the
jurisprudential distinction between civil and criminal liability in cases of
8
medical negligence, considered various facets of negligence by professionals
and laid down several propositions including the following:
“(1) Negligence is the breach of a duty caused by omission to
do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of human
affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice
G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act
or omission amounting to negligence attributable to the person
sued. The essential components of negligence are three: “duty”,
“breach” and “resulting damage”.
(2) Negligence in the context of the medical profession
necessarily calls for a treatment with a difference. To infer
rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of
occupational negligence is different from one of professional
negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable
to the medical profession of that day, he cannot be held liable
for negligence merely because a better alternative course or
method of treatment was also available or simply because a
more skilled doctor would not have chosen to follow or resort
to that practice or procedure which the accused followed. When
it comes to the failure of taking precautions, what has to be seen
is whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to use
special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care,
while assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would
9fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.
(3) A professional may be held liable for negligence on one
of the two findings: either he was not possessed of the requisite
skill which he professed to have possessed, or, he did not
exercise, with reasonable competence in the given case, the
skill which he did possess. The standard to be applied for
judging, whether the person charged has been negligent or not,
would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for every
professional to possess the highest level of expertise or skills in
that branch which he practices. A highly skilled professional
may be possessed of better qualities, but that cannot be made
the basis or the yardstick for judging the performance of the
professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down
in Bolam case, WLR at p.586 holds good in its applicability in
India.
(5) The jurisprudential concept of negligence differs in civil
and criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot
form the basis for prosecution.”
9. In Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1, a two-Judge
Bench referred to the judgment in Jacob Mathew’s case and proceeded to
equate criminal complaint against doctor or hospital with a complaint filed
10
under the Act. This is evident from para 106 of the judgment, which is
extracted below:
“We, therefore, direct that whenever a complaint is received
against a doctor or hospital by the Consumer Fora (whether
District, State or National) or by the criminal court then before
issuing notice to the doctor or hospital against whom the
complaint was made the Consumer Forum or the criminal court
should first refer the matter to a competent doctor or committee
of doctors, specialised in the field relating to which the medical
negligence is attributed, and only after that doctor or committee
reports that there is a prima facie case of medical negligence
should notice be then issued to the doctor/hospital concerned.
This is necessary to avoid harassment to doctors who may not
be ultimately found to be negligent. We further warn the police
officials not to arrest or harass doctors unless the facts clearly
come within the parameters laid down in Jacob Mathew case,
otherwise the policemen will themselves have to face legal
action.”
10. In V. Kishan Rao v. Nikhil Super Specialty Hospital and another
(2010) 5 SCC 513, the Court noted that the proposition laid down in Martin
D’Souza’s case is contrary to the three-Judge Bench judgment in Jacob
Mathew’s case and observed:
“We are of the view that the aforesaid directions in D’Souza are
not consistent with the law laid down by the larger Bench in
Mathew. In Mathew the direction for consulting the opinion of
another doctor before proceeding with criminal investigation
was confined only in cases of criminal complaint and not in
respect of cases before the Consumer Fora. The reason why the
larger Bench in Mathew did not equate the two is obvious in
view of the jurisprudential and conceptual difference between
11cases of negligence in civil and criminal matter. This has been
elaborately discussed in Mathew.”
11. In the light of the above noted judgments, it is to be seen whether the
finding recorded by the State Commission that the respondent did not
exercise due diligence and skill in treating the appellant was correct and the
National Commission committed an error by upsetting the order of the State
Commission. A critical analysis of the order of the State Commission shows
that it did not accept the respondent’s version that the appellant had been
brought to his hospital in a serious condition and he was suffering from
gastro-enteritis, dehydration acidosis and septicemia shock and mal-nutrition
and anemia by observing that if that was so, there was no valid reason for
the respondent to stop medication and withdraw glucose on 2.11.1994. The
State Commission also took serious view of the respondent’s conduct in
producing the case papers after a gap of 6 years from the date of filing the
complaint and that too, after the appellant’s father and Dr. Ashwin Bhammar
had been cross-examined. The State Commission then referred to the
statement of Dr. Ashwin Bhamar and opined that in view of his statement,
the printed material produced by the respondent cannot be relied for denying
relief to the appellant. The State Commission concluded that there was
deficiency in service on the part of the respondent and directed him to pay
12
compensation to the appellant. The National Commission did not advert to
these important aspects and allowed the appeal on the solitary ground that on
his cross-examination, Dr. Ashwin Bhamar had admitted that there could be
ten to twelve other reasons for development of gangrene.
12. In our view, the National Commission was duty bound to pay serious
attention on the respondent’s failure to produce the case papers for 6 long
years and called upon him to explain why the record pertaining to the
treatment given to the appellant was held back from the State Commission
till the complainant’s evidence was virtually over. The case papers/bed
ticket maintained by the hospital of the respondent would have disclosed the
line of treatment adopted by him. Why he did not produce those papers
along with reply to the complaint or at least before commencement of the
evidence of the appellant is inexplicable. By withholding those papers till
the completion of the evidence of Dr. Bhamar, the respondent appears to
have made an attempt to mislead the State Commission about the steps taken
by him for treating the appellant. Equally intriguing was respondent’s
failure to file affidavit of Dr. Chudasama to whom he claims to have taken
the appellant for treatment. The respondent did try to fill in this lacuna by
filing affidavit of Dr. Chudasama before the National Commission. The
13
latter should have enquired as to why he had not filed such affidavit before
the State Commission or examined him as a witness before the State
Commission. These omissions on the part of the National Commission are
extremely serious and have resulted in failure of justice.
13. For the reasons stated above, the appeal is allowed. The impugned
order is set aside and the matter is remanded to the National Commission for
fresh disposal of the appeal filed by the respondent. Since, the matter is
almost 16 years old, we request the National Commission to decide the
appeal within a period of 6 months from the date of receipt/production of
copy of this judgment. The parties are directed to appear before the National
Commission on 8th of November, 2010. They may file additional affidavits
and documents within next four weeks.
………………………..J.
[G.S. Singhvi]
…………………………J.
[Asok Kumar Ganguly]
New Delhi
October 26, 2010