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

J U D G M E N T

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.

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.

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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.

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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.  

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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.  

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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.  

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Bhammar  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  

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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  

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fail  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  

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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  

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cases 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  

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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  

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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

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