{"id":107494,"date":"2004-10-12T00:00:00","date_gmt":"2004-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-savita-garg-vs-the-director-national-heart-on-12-october-2004"},"modified":"2016-04-20T18:52:54","modified_gmt":"2016-04-20T13:22:54","slug":"smt-savita-garg-vs-the-director-national-heart-on-12-october-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-savita-garg-vs-the-director-national-heart-on-12-october-2004","title":{"rendered":"Smt. Savita Garg vs The Director, National Heart … on 12 October, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Smt. Savita Garg vs The Director, National Heart … on 12 October, 2004<\/div>\n
Author: A Mathur<\/div>\n
Bench: B.N.Agrawal, A.K.Mathur<\/div>\n
           CASE NO.:\nAppeal (civil)  4024 of 2003\n\nPETITIONER:\nSmt. Savita Garg\n\nRESPONDENT:\nThe Director, National Heart Institute.\n\nDATE OF JUDGMENT: 12\/10\/2004\n\nBENCH:\nB.N.AGRAWAL & A.K.MATHUR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
A.K. MATHUR, J.\n<\/p>\n
\tThis appeal is directed against the order passed by the
\nNational Consumer Disputes Redressal Commission (hereinafter to
\nbe referred to as ‘the Commission’), New Delhi whereby the
\nCommission has dismissed  the original petition of the appellant on
\nthe ground of non-joinder of necessary parties.\n<\/p>\n
\tBrief facts which are necessary for disposal of this appeal are
\nas follows.\n<\/p>\n
 The  appellant is the wife of one deceased A.K.Garg who was
\nadmitted to the National Heart Institute (hereinafter referred to as ‘the
\nInstitute’)  for medical treatment and because of the negligence of the
\ndoctors of the Institute he could not get proper medical treatment and
\nultimately he died. The deceased A.K.Garg was employed as
\nElectrical Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased
\nwas drawing a salary of Rs.8000\/- per month at the time of his death.
\nHe left behind his family members namely; (i) Smt.Savit Garg (wife),\n<\/p>\n
(ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg (son), (iv) Miss.
\nRuchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop Garg
\n(brother).  Prior to the admission of the deceased, A.K.Garg in the
\nInstitute he was being treated at G.B. Pant Hospital  and he did not
\nimprove there, therefore, his case was referred to the Institute by his
\nemployer, IDPL. The deceased was admitted for angiography on
\n4.7.1994 and a sum of Rs.14,000\/- was deposited for his treatment.
\nHe was discharged on 5.7.1994 after angiography. Again he was
\nadmitted on 2.8.1994 at 11.15 A.M. and remained there till 9.8.1994
\nand ultimately died at the Institute.  It was alleged that on 3.8.1994 he
\nwas operated and was brought to the Intensive Care Unit of the
\nInstitute.  No attendant  was allowed to see the patient  except
\nthrough the glass windows  of I.C.U.  The deceased was operated
\ntwice by Dr.O.P. Yadav of the Institute for his treatment. It is further
\nalleged that Dr.O.P.Yadav  was too much worried and perturbed after
\nthe deceased’s operation. On the said day i.e. on 3.8.1994,  8 bottles
\nof blood were transfused in the body of the deceased and even on
\n4.8.1994 another 8 bottles of blood were demanded by the Doctors of
\nthe Institute and the same was somehow arranged. The deceased is
\nsaid to have developed jaundice may be because of wrong
\ntransfusion or extra transfusion of blood. It is further alleged that the
\ndeceased developed septic and as   the septic in the bone became
\nincurable, therefore a Doctor from Batra Hospital was called for to
\namputate one leg of the deceased A.K.Garg. Thereafter , as it was
\nreported to be case of kidney failure, the deceased was put on
\ndialysis. However, on 9.8.1994 at 2.30 hours the deceased was
\ndeclared dead. Therefore, a complaint was filed before the
\nCommission claiming a sum of Rs.45 lacs, the details of which have
\nalready been given in the complaint.  The appellant has detailed the
\nreasons for the negligence in her original petition filed before the
\nCommission. An affidavit in opposition was filed by the Institute and
\nthey denied the allegations of negligence and pointed out that all
\nproper care was taken, there is no negligence on the part of the
\nInstitute. An objection was also taken that the provisions as contained
\nin the Consumer Protection Act, 1986 do not satisfy the requirement
\nof a complaint as defined under the Act as it does not disclose any
\ndeficiency. The Institute also challenged the jurisdiction of the
\nCommission to entertain the said original petition.\n<\/p>\n
\tA rejoinder was also filed by the appellant  and it is alleged that
\nseptic was developed because of the negligence which shows lack of
\ncare on the part of the doctors. However,  when the matter came up
\nfor hearing on 12.4.2002, the Commission directed both the parties to
\nfile brief notes of submissions on the question of maintainability of the
\ncomplaint as well as the effect of non-impleading  the attending
\ndoctors against whom the medical negligence has been alleged and
\nthe matter was posted to 2.5.2002 for directions.  Thereafter,
\nultimately the matter was disposed of by the Commission by its order
\ndated 6.2.2003 holding that the original petition is not maintainable in
\nthe absence of the treating doctors being impleaded as party. It was
\nalso observed  that no effort was made by the appellant to implead
\nthe concerned doctors at any stage of the proceedings.  Therefore,
\nthe Commission held that there is no alternative but to dismiss the
\ncomplaint for non-joinder of parties. The Commission however
\nobserved that considering the age of the deceased and the number of
\ndependents upon her, the Institute will consider the matter
\nsympathetically and make some ex-gratia payment to the family
\nmembers of the deceased.\n<\/p>\n
\tThe question is whether non-impleading the treating doctor as
\nparty could result in dismissal of the original petition for non-joinder of
\nnecessary party.\n<\/p>\n
\tIt is the common experience that when a patient goes to a
\nprivate clinic, he goes by the reputation of the clinic and with the hope
\nthat proper care will be taken by the Hospital authorities. It is not
\npossible for the patient to know that which doctor will treat him. When
\na patient is admitted to a private clinic\/ hospital it is hospital\/ clinic
\nwhich engages the doctors for treatment. In the present case, the
\nappellant’s husband was admitted to the best of the hospital and it is
\nnot possible for the appellant to find out that who is the best doctor
\nand who is not. Normally, the private clinics go by the reputation and
\npeople look forward for best treatment when they are run
\ncommercially. It is the responsibility of the clinic that they must
\nprovide best of the services when they charge for the services
\nrendered by them. In case it is found that services rendered by the
\nclinic or hospital, as the case may be, is not up to the mark and it
\ninvolves some negligence on their part,  for which the patients suffer,
\nthen they are bound to reimburse them. They charge fee  for the
\nservices rendered by them and they are supposed to bestow the best
\ncare. Looking at the present appeal, the whole claim petition was
\ndismissed simple on the ground that  the treating doctor was not
\nimpleaded as a party. The question is therefore, whether in the
\nabsence of the treating doctor could the original petition  be
\ndismissed on the ground of non-joinder of necessary party. As per the
\nprovisions of Section 22 of the Consumer Protection Act, 1986
\n(hereinafter referred to as ‘the Act’)  the Commission has to regulate
\nits business. Section 22 lays down the power of and procedure
\napplicable to the National Commission. It reads as under:\n<\/p>\n
\t” 22. Power of and procedure applicable to the
\nNational Commission.- The National
\nCommission shall, in the disposal of any
\ncomplaints or any proceedings before it, have-\n<\/p>\n
(a)\tthe power of a civil court as specified in sub-
\nsections (4), (5) and (6) of  section 13;\n<\/p>\n
(b) the power to issue an order to the opposite
\nparty directing him to do any one or more of the
\nthings referred to in clauses (a) to (i) of sub-
\nsection (1) of section 14,<\/p>\n
and follow such procedure as may be prescribed
\nby the Central Government.”.\n<\/p>\n
According to Section 22 whatever procedures which have
\nbeen prescribed under Section 13 for the District Forum shall be
\napplicable.  Sub-sections (4), (5) & (6) of Section 13 which are
\nrelevant for our purpose read as under:\n<\/p>\n
\t” 13. Procedure on receipt of complaint.-\n<\/p>\n
\t\txx\t\txx\t\txx<\/p>\n
(4)\tFor the purposes of this section, the District
\nForum shall have be same powers as are
\nvested in a civil court under Code of Civil
\nProcedure, 1908 while trying a suit in respect
\nof the following matters, namely:-\n<\/p>\n
(i)\tthe summoning and enforcing the attendance
\nof any defendant or witness and examining
\nthe witness on oath,<\/p>\n
(ii)\tthe discovery and production of any document
\nor other material object producible as
\nevidence,<\/p>\n
(iii)\tthe reception of evidence on affidavits,<\/p>\n
(iv)\tthe requisitioning of the report of the
\nconcerned analysis or test from the
\nappropriate laboratory or from any other
\nrelevant source,<\/p>\n
(v)\tissuing of any commission for the examination
\nof any witness, and<\/p>\n
(vi)\tany other matter which may be prescribed.\n<\/p>\n
(5)\tEvery proceeding before the District Forum
\nshall be deemed to be a judicial proceeding
\nwithin the meaning of section 193and 228 of
\nthe Indian Penal Code (45 of 1860), and the
\nDistrict Forum shall be deemed to be a civil
\ncourt for the purposes of section 195, and
\nChapter XXVI of the Code of Criminal
\nProcedure, 1973 (2 of 1974).\n<\/p>\n
(6)\tWhere the complainant is a consumer
\nreferred to in sub-clause (iv) of clause(b) of
\nsub-section (1) of section 2, the provisions of
\nrule 8 of Order 1 of the First Schedule to the
\nCode of Civil Procedure, 1908 ( 5 of 1908)
\nshall apply subject to the modification that
\nevery reference therein to a suit or decree
\nshall be construed as a reference to a
\ncomplaint or the order of the District Forum
\nthereon.”\n<\/p>\n
Sub-sections (4), (5) & (6) of Section 13 lay down that the
\nForum shall have the power to summon and enforce the
\nattendance of any defendant or witness as laid down in the Code
\nof Civil Procedure. Likewise, it shall have the power to direct for
\nproduction of material object producible as evidence, reception
\nof evidence on affidavit; requisitioning of the report of the
\nconcerned analysis or test from the appropriate laboratory or
\nfrom any other relevant source; issuing of any commission for
\nthe examination of any witness and any other matter which may
\nbe prescribed.  Sub-section (5) says that every proceeding
\nbefore the District Forum shall be judicial proceeding within the
\nmeaning of sections 193 and 228 of the Indian Penal Code and
\nthe District Forum shall be deemed to be a Civil Court for the
\npurposes of section 195 and Chapter XXVI of the Code of Civil
\nProcedure.  Sub-section (6) says that when there are more than
\none consumer, then one of them can sue as required under
\nOrder 1 Rule 8 of the Code of Civil Procedure. Therefore,  if
\nthere are number of consumers, one of them can represent  the
\ninterest of all.  Therefore, as far as the Commission is
\nconcerned,  the provisions of the Code of Civil Procedure are
\napplicable to  the limited extent and not all the provisions of the
\nCode of Civil Procedure are made applicable to the proceedings
\nto  the National Forum.  Rules have also been framed under the
\nAct, known as the Consumer Protection Rules, 1987, where Rule
\n14 has prescribed the procedure to be followed by the
\nCommission. Rule 14 says  that the name, description and the
\naddress of the complainant and the opposite parties, as the case
\nmay be, so far as they can be ascertained, should be given.
\nClause (b) of sub-section (1) which is relevant for our purposes
\nreads as  under:\n<\/p>\n
” (b) the name, description and address of the
\nopposite party or parties, as the case may be, so far
\nas they can be ascertained”\n<\/p>\n
Therefore, according to the procedure laid down by the
\nRules a complainant has to give the name, description and
\naddress of the opposite party or parties so far as they  can be
\nascertained.\n<\/p>\n
\tSo far as the filing of complaint  directly before the
\nCommission because of higher valuation, the procedures laid
\ndown in Rule 14 of the Rules have to be followed and in that
\ncase,  the name of the opposite party has to be given so far as
\nthey can be ascertained. In the present case,  the appellant filed
\noriginal petition impleading the Institute where her husband was
\nadmitted as a party but she did not implead the treating doctors
\nand nurses who were attending on her husband. Though the
\nCommission directed that necessary parties may be impleaded
\nand it appears that no effort was made to implead the treating
\nsurgeon or the nursing staff as a party. Therefore, the question is
\nwhether non-impleading the treating surgeon  or a nursing staff
\ncan be said to be necessary party and if they are not impleaded
\nthen in that case, the original petition can result into dismissal on
\naccount of non-joinder of necessary party.  So far as the law with
\nregard to the non-joinder of necessary party under Code of Civil
\nProcedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there
\nalso even no suit shall  fail because of mis-joinder or non-joinder
\nof parties. It can proceed against the persons who are parties
\nbefore the Court.  Even the Court has the power under Order 1
\nRule 10(4) to give direction to implead a person who is a
\nnecessary party.  Therefore, even if  after the direction given by
\nthe Commission the concerned doctor and the nursing staff who
\nwere looking after the deceased A.K.Garg have not been
\nimpleaded as opposite parties  it can not result in dismissal of
\nthe original petition as a whole.\n<\/p>\n
The Consumer Forum is primarily meant to provide better
\nprotection in the interest of the consumers and not to short circuit
\nthe matter or to defeat the claim on technical grounds. Reverting
\nback to the facts of the present case, whether non-joinder of the
\ntreating doctor, nursing staff can result into dismissal of the claim
\npetition. As a matter of fact, when a patient is admitted to the
\nhighly commercial hospital like the present institute, a thorough
\ncheck up of the patient is  done by the hospital authorities, it is
\nthe Institute which selects after the examination of the patient
\nthat he suffers from what  malady and who is the best doctor
\nwho can attend, except when  the patient or the family members
\ndesire to be treated by  a particular doctor or the surgeon as the
\ncase may be.  Normally, the private hospitals have a panel of
\ndoctors in various specialities & it is they who chooses who is to
\nbe called. It is very difficult for the patient to give any detail that
\nwhich doctor treated the patient and whether the doctor was
\nnegligent or the nursing staff was negligent. It is very difficult for
\nsuch patient or his relatives to implead them as parties in the
\nclaim petition.  It will be an impossible task and if the claim is to
\nbe defeated on that ground it will virtually be frustrating the
\nprovisions of the Act, leaving the claimant high and dry. We
\ncannot place such a heavy burden on the patient or the family
\nmembers\/ relatives to implead all those doctors who have
\ntreated the patient or the nursing staff to be impleaded as party.
\nIt will be a difficult  task  for the patient or his relatives to
\nundertake this  searching enquiry from the Hospital and
\nsometimes hospital may not co-operate. It  may give such details
\nand sometimes may not give the details. Therefore,  the
\nexpression used in Rule  14 (1) (b), ” so far as they can be
\nascertained”, makes it clear that the framers of the Rules
\nrealized that it will be very difficult specially in the case of
\nmedical profession to pinpoint that who is responsible for not
\nproviding proper and efficient service which gives rise to the
\ncause for filing a complaint and specially in the case like the one
\nin hand.  The patients once they are admitted to such hospitals,
\nit is the responsibility of the said hospital or the medical
\ninstitutions  to satisfy that all possible care was taken and no
\nnegligence was involved in attending  the patient. The burden
\ncannot be placed on the patient to implead all those treating
\ndoctors or the attending staff of the hospital as a party so as to
\nsubstantiate his claim. Once a patient is admitted in a hospital it
\nis the responsibility of the Hospital to provide the best service
\nand if  it is not, then hospital cannot take shelter under the
\ntechnical ground that the concerned surgeon or the nursing staff,
\nas the case may be, was not impleaded, therefore, the claim
\nshould be rejected on the basis of non-joinder of necessary
\nparties. In fact, once a claim petition is filed and the claimant has
\nsuccessfully discharged the initial burden that the hospital was
\nnegligent, as a result of such negligence the patient  died, then in
\nthat case the burden lies on the hospital and  the concerned
\ndoctor who treated that patient that  there was no negligence
\ninvolved in the  treatment.  Since the burden is on the hospital,
\nthey can discharge the same by producing that doctor who
\ntreated the patient in defence to substantiate their allegation that
\nthere was no negligence. In fact it is the hospital who engages
\nthe treating doctor thereafter it is their responsibility.  The burden
\nis greater on the Institution\/ hospital  than that of the claimant.
\nThe institution is private body and they are responsible to
\nprovide efficient service  and if in discharge of their efficient
\nservice  there are couple of weak links which has caused
\ndamage to the patient then it is the hospital which is to justify the
\nsame and it is not possible for the claimant to implead  all of
\nthem as parties.\n<\/p>\n
In this connection, learned counsel appearing for the
\nrespondent ably tried to make a distinction between ‘contract for
\nservice’ and ‘contract of service’. He submitted that those
\npersons who are on contract for service  are different from those
\npersons  who are on contract of service. He submitted that in a
\ncontract for service there is a contract whereby one party
\nundertakes to render service  e.g. professional or technical
\nservice, to or for another in the performance of which he is not
\nsubject to  detailed direction and control but exercises
\nprofessional or technical skill and uses his own knowledge and
\ndiscretion. A ‘contract of service’ implies relationship of master
\nand servant and involves an obligation to obey orders in the work
\nto be performed and as to its mode and manner of performance.\n<\/p>\n
By this learned counsel submitted that so far as the
\npermanent staff of the hospital is concerned, there is a contract
\nof service and negligence thereof the hospital can be made liable
\nand for that they need not be impleaded as parties in respect of
\nany negligence of service  but the doctors who come on visit,
\nthey are on contract for service over which the hospital has no
\ncontrol and therefore, unless they are impleaded as parties, no
\nrelief can be given. He also based his submission with reference
\nto some of the English decisions  given in the case of Gold & Ors
\nv. Essex County Council reported in [1942] 2 All E.R.237 and
\nCollins v. Hertfordshire County Council & Anr. reported in [1947]
\n1 All E.R. 633. So far as Gold & Ors. v. Essex County Council is
\nconcerned, in that case,  the infant plaintiff was treated by a
\nradiographer, an employee of the respondents at one of their
\ncounty hospitals. By reason of his failure to provide adequate
\nscreening material in giving Grenz-ray treatment the infant
\nplaintiff suffered injury to her face. It was proved  that the
\nradiographer was fully competent to administer the treatment
\ngiven to the infant plaintiff.  However, it was held that as the
\nradiographer was under a contract of service of the respondents,
\nthey were liable for his negligence under the doctrine of
\nrespondeat superior.  It was further held that if a local authority
\nhad exercised power under the Public Health Act, 1936, the
\nobligation undertaken is an obligation to treat and the authority is
\nliable  if the person employed by it to perform the obligation on
\nits behalf  acts without due care. This was a case in which the
\nradiographer was under regular employment with the county
\ncouncil. This is   a case in which a person  was on contract of
\nservice and not on contract for service. Therefore, this case does
\nnot provide any assistance to the present case.\n<\/p>\n
In the case of  Collins v. Hertfordshire County Council &
\nAnr, while undergoing an operation, a patient in a county council
\nhospital was killed by an injection of cocaine which was given by
\nthe operating surgeon in the mistaken belief that it was procaine.
\nThe operating surgeon had ordered procaine on the telephone,
\nbut the resident house surgeon ( who was then unqualified) had
\nmis-heard “procaine” as “cocaine”, and had told the pharmacist
\nto dispense a mixture which was, in fact, lethal. The pharmacist
\ndispensed the mixture without making further inquiry  and without
\nrequiring the written instruction of a qualified person, and the
\noperating surgeon had given the injection without checking that
\nit was what he had ordered.  The operating surgeon, the house
\nsurgeon, and the pharmacist were all three in the full-time  or
\npart-time employment of the council. In an action by the patient’s
\nwidow against the county council and the operating surgeon
\nalleging that the death was the result of (a) the council’s
\nnegligence in the conduct of their hospital, and (b) the operating
\nsurgeon’s failure to exercise reasonable care. It was held as
\nfollows:\n<\/p>\n
” (i) The county council, in managing the
\nhospital, was permitting a dangerous and
\nnegligent system to be in operation, and the
\noperating surgeon and the house surgeon had
\nfailed to exercise reasonable skill and care.\n<\/p>\n
        (ii) the council were able to control the
\nmanner in which the resident medical officer
\nperformed her work and, therefore, the acts of
\nthe house surgeon done in the course of her
\nemployment were acts for which the council
\nwas responsible, <\/p>\n
(iii) although the operating surgeon was
\na part-time employee on the staff of the
\ncouncil, the council could not control how he
\nwas to perform his duties and was not
\nresponsible for his want of care.”\n<\/p>\n
Learned counsel submitted that in view of the above
\ndecisions since the doctor was on part-time employment, as
\nsuch he was not responsible. With respect this distinction which
\nis tried to be advanced by learned counsel for the respondent,
\ndoes not find favour in subsequent decision rendered by the
\nEnglish Court in the case of Cassidy v. Ministry of Health
\nreported in [1951] 2 K.B. 343.  In this case, the earlier decision in
\nthe case of     Gold & Ors. v. Essex County Council reported in
\n[1942] 2 All E.R.237  came up for consideration. Lord Denning,
\nJ. speaking for himself observed that  a hospital authority is
\nliable for the negligence of doctors and surgeons employed by
\nthe authority under a contract for service arising in the course of
\nthe performance of their professional duties.  It was observed as
\nfollows:\n<\/p>\n
” The hospital authority is liable for the
\nnegligence of professional men employed by
\nthe authority under contracts for service as
\nwell as under contracts of service. The
\nauthority owes a duty to give proper treatment
\n medical, surgical, nursing and the like- and
\nthough it may delegate the performance of
\nthat duty to those who are not its servants, it
\nremains liable if that duty be improperly or
\ninadequately performed by its delegates.\n<\/p>\n
The plaintiff entered a hospital for an
\noperation on his left hand, which necessitated
\npost-operational treatment. While undergoing
\nthat treatment he was under the care of the
\nsurgeon who performed the operation, who
\nwas a whole-time assistant medial officer of
\nthe hospital, the house surgeon and members
\nof the nursing staff of the hospital, all of whom
\nwere employed under contracts of service. At
\nthe end of the treatment it was found that his
\nhand had been rendered useless. The trial
\njudge dismissed his action for damages for
\nnegligent treatment which he brought against
\nthe hospital on the ground that he had failed
\nto prove any negligence. On appeal it was
\nheld that in the circumstances, the doctrine of
\nres ipsa loquitur  applied, and the onus lay on
\nthe hospital authority to prove that there had
\nbeen no negligence on its part or on the part
\nof anyone for whose acts or omission it was
\nliable, and that onus had not been
\ndischarged.”\n<\/p>\n
Therefore, as per the English decisions also the distinction
\nof ‘contract of service’ and ‘contract for service’, in both the
\ncontingencies  the courts have taken the view that the hospital is
\nresponsible for the acts of their permanent staff as well as staff
\nwhose services are temporarily requisitioned for the treatment of
\nthe patients. Therefore, the distinction which is sought to be
\npressed into service so ably by learned counsel cannot absolve
\nthe hospital or the institute as it is responsible for the acts of its
\ntreating doctors who are on the panel and whose services are
\nrequisitioned from time to time by the hospital looking to the
\nnature of the  diseases.  The hospital or the institute is
\nresponsible and no distinction could be made between the two
\nclasses of persons  i.e.  the treating doctor  who was on  the staff
\nof the hospital and the nursing staff and the doctors whose
\nservices were temporarily taken for treatment of the patients. On
\nboth, the hospital as the controlling authority is responsible and it
\ncannot take the shelter  under the plea that treating physician is
\nnot impleaded as a party, the claim petition should be dismissed.
\nIn this connection, a reference may be made to a decision of this
\nCourt in the case of Indian Medical Association v. V.P. Shantha
\n& ors.<\/a> reported in AIR 1996 SC 550.  There  the question had
\ncome up before this Court with regard to the provisions of the
\nConsumer Protection Act, 1986 vis-`-vis the medical profession.
\nThis Court has dealt with all aspects of medical profession from
\nevery angle and has come to the conclusion that  the doctors or
\nthe institutes  owe a duty to the patients and they cannot get
\naway in case of lack of care to the patients. Their Lordships have
\ngone to the extent that even if the doctors are rendering services
\nfree of charge to  the patients in the Government hospitals,  the
\nprovisions of the Consumer Protection Act will apply  since the
\nexpenses of running  the said hospitals are met by appropriation
\nfrom the Consolidated Fund which is raised from the taxes paid
\nby the tax payers. Their Lordships  have dealt  with regard to the
\ndefinition of  “service” given in Section 2(1)(o) of the Consumer
\nProtection Act, 1986, and have observed as follows:\n<\/p>\n
” The service rendered free of charge to
\npatients by doctors\/ hospitals whether non-
\nGovt. or Govt.  who render free service to
\npoor patients but charge fee for services
\nrendered to other patients would, even though
\nit is free, not be excluded from definition of
\nservice in S.2(1)(o). The Act seeks to protect
\nthe interests of consumers as a class. To hold
\notherwise would mean that the protection of
\nthe Act would be available to only those who
\ncan afford to pay and such protection would
\nbe denied to those who cannot so afford,
\nthough they are the people who need the
\nprotection more. It is difficult to conceive that
\nthe legislature intended to achieve such a
\nresult. Another consequence of adopting a
\nconstruction, which would restrict the
\nprotection of the Act to persons who can
\nafford to pay for the services availed by them
\nand deny such protection to those who are not
\nin a position to pay for such services, would
\nbe that the standard and quality of services
\nrendered at an establishment would  cease to
\nbe uniform. It would be of a higher standard
\nand of better quality for persons who are in a
\nposition to pay for such service while the
\nstandard and quality of such service would be
\ninferior for person who cannot afford to pay for
\nsuch service and who avail the service without
\npayment. Such a consequence would defeat
\nthe object of the Act. All persons who avail the
\nservices by doctors and hospitals who give
\nfree service to poor patients but charge fee for
\nothers, are required to be treated on the same
\nfooting irrespective of the fact that some of
\nthem pay for the service and others avail the
\nsame free of charge. Most of the doctors and
\nhospitals work  on commercial lines and the
\nexpenses incurred for providing services free
\nof charge to patients who are not in a position
\nto bear the charges are met out of the income
\nearned by such doctors and hospitals from
\nservices rendered to paying patients. The
\nGovernment hospitals may not be commercial
\nin that sense but on the overall consideration
\nof the objectives and the scheme of the Act it
\nwould not be possible to treat the
\nGovernment hospitals differently. In such a
\nsituation the persons belonging to “Poor class”
\nwho are provided services free of charge are
\nthe beneficiaries of the service which is hired
\nor availed  of by the “paying class”. Service
\nrendered by the doctors and hospitals who
\nrender free service to poor patients and
\ncharge fees for others irrespective of the fact
\nthat part of the service is rendered free of
\ncharge, would nevertheless fall within the
\nambit of the expression “service” as defined in
\nSection 2(1)(o) of the Act.”\n<\/p>\n
Therefore, the distinction between the ‘contract of  service’
\nand ‘contract for service’ has been very elaborately discussed in
\nthe above case and  this Court has extended the provisions of
\nthe Consumer Protection Act, 1986, to the medical profession
\nalso and included in its ambit the services rendered by private
\ndoctors as well as the Government Institutions  or the non-
\nGovernmental institutions, be it free medical services provided
\nby the Government Hospitals. In the case of Achutrao Haribhau
\nKhodwa & Ors. v. State of Maharashtra & Ors.<\/a> reported in (1996)
\n2 SCC 634, Their Lordships observed that  in cases where the
\ndoctors act carelessly and in a manner which is not expected of
\na medical practitioner, then in such a case an action on torts
\nwould be maintainable. Their Lordships  further observed
\nthat if the doctor has taken proper precaution and despite that if
\nthe patient does not survive  then the Court should be very slow
\nin  attributing negligence on the part of the  doctor. It was held as
\nfollows:\n<\/p>\n
”  A medical practitioner has various
\nduties towards his patient and he must act
\nwith a reasonable degree of skill and
\nknowledge and must exercise a reasonable
\ndegree of care. This is the least which a
\npatient expects from a doctor. The skill of
\nmedical practitioners differs from doctor to
\ndoctor. The very nature of the profession is
\nsuch that there may be more than one course
\nof treatment which may be advisable for
\ntreating   a patient. Courts would indeed be
\nslow in attributing negligence on the part of a
\ndoctor if he has performed his duties to the
\nbest of his ability and with due care and
\ncaution. Medical opinion may differ with
\nregard to the  course of action to be taken by
\na doctor treating a patient, but as long as a
\ndoctor acts in a manner  which  is acceptable
\nto the medical profession and the court finds
\nthat he has attended on the patient with due
\ncare, skill and diligence and if the patient still
\ndoes not survive or suffers a permanent
\nailment, it would be difficult to hold the doctor
\nto be guilty of negligence. But in cases where
\nthe doctors act carelessly and in a manner
\nwhich is not expected of a medical
\npractitioner, then in such a case an action in
\ntorts would be maintainable.”\n<\/p>\n
Similarly, our attention was invited to a decision in the case of
\nSpring Meadows Hospital & Anr. v. Harjol Ahluwalia<\/a> through K.S.
\nAhluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships
\nobserved as follows:\n<\/p>\n
”  Very often in a claim for  compensation
\narising out of medical negligence a plea is
\ntaken that it is a case of bona fide mistake
\nwhich under certain circumstances may be
\nexcusable, but a mistake which would
\ntantamount to negligence cannot be
\npardoned. In the former case a court can
\naccept that ordinary  human fallibility
\nprecludes the liability while in the latter the
\nconduct of the defendant is considered to
\nhave gone beyond the bounds of what is
\nexpected of the skill of a reasonably
\ncompetent doctor.”\n<\/p>\n
Therefore, as a result of our above discussion we are opinion
\nthat  summary dismissal of the original petition by the
\nCommission on the question of non-joinder of necessary parties
\nwas not proper. In case, the complainant fails to substantiate the
\nallegation, then the complaint will fail. But not on the ground of
\nnon-joinder of necessary party.   But at the same time  the
\nhospital can discharge the burden  by producing the treating
\ndoctor in defence   that all due care and caution was taken and
\ndespite that  patient died. The hospital\/Institute  is not going to
\nsuffer on account of non-joinder of necessary parties and
\nCommission should have proceeded against hospital Even
\notherwise also the Institute had to produce the concerned
\ntreating physician and has to produce evidence that all care and
\ncaution was taken by them or their staff to justify that there was
\nno negligence involved in the matter. Therefore, nothing turns in
\nnot impleading the treating doctor as a party. Once an allegation
\nis made that the patient was admitted in a particular hospital and
\nevidence is produced to satisfy that  he died because of lack of
\nproper care and negligence, then the burden lies on the hospital
\nto justify that there was no negligence on the part of the treating
\ndoctor\/ or hospital. Therefore, in any case, the hospital which is
\nin better position to disclose that what care was  taken or what
\nmedicine was administered to the patient. It is the duty of the
\nhospital to satisfy that there was no lack of care or diligence. The
\nhospitals are institutions, people expect better and efficient
\nservice, if the hospital fails to discharge their duties through their
\ndoctors  being employed on job  basis or employed on contract
\nbasis, it is the hospital which has to justify  and  by not
\nimpleading a particular  doctor will not absolve the hospital of
\ntheir responsibilities.\n<\/p>\n
\tIn the result,  we allow this appeal, set aside the order
\ndated 6.2.2003 passed by the National Consumer Disputes
\nRedressal Commission, New Delhi in Original Petition No.121 of
\n1995 and remit back the original petition to the National
\nConsumer Disputes Redressal Commission  to  be decided in
\naccordance with law. No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Smt. Savita Garg vs The Director, National Heart … on 12 October, 2004 Author: A Mathur Bench: B.N.Agrawal, A.K.Mathur CASE NO.: Appeal (civil) 4024 of 2003 PETITIONER: Smt. Savita Garg RESPONDENT: The Director, National Heart Institute. DATE OF JUDGMENT: 12\/10\/2004 BENCH: B.N.AGRAWAL & A.K.MATHUR JUDGMENT: J U D G M E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-107494","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSmt. 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