Reportable IN THE SUPREME COURT OF INDIA

    CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 7950 OF 2002

Post Graduate Institute of Medical Education & Research,  Chandigarh      ... Appellant

Versus

Jaspal Singh & Ors.             ...Respondents

J U D G E M E N T

R.M. Lodha, J.

In  this  appeal  by  special  leave,  the  appellant,  Post  

Graduate Institute of Medical Education and Research, Chandigarh  

(for short, ‘PGI’ ) has  challenged the order dated September 29,  

2000  passed  by  the  National  Consumer  Disputes  Redressal  

Commission (for short,  “National Commission”).   By its order, the  

National  Commission  dismissed  the  appeal  filed  by   PGI  under  

Section 21 of the Consumer Protection Act, 1986 (for  short, ‘Act,  

1986’  )  and  affirmed the  order  passed by the State Consumer  

Disputes  Redressal  Commission,   Chandigarh  (for  short,  ‘State

Commission’ ) whereby it directed the PGI to pay compensation in  

the sum of  rupees two lacs to the respondents 1 and 2 herein (for  

short, ‘the complainants’)  and cost of Rs. 5,000/-.

2. The brief facts of the case are thus:

On  March  30,  1996,  Smt.  Harjit  Kaur  (wife  of  

complainant  No.  1  and  mother  of  complainant  No.  2)   received  

accidental burns while making tea on the stove.    She sustained  

50% TBSA  III burns involving both upper limbs, part of trunk and  

most of both lower limbs.     Smt. Harjit Kaur was taken to Daya  

Nand Medical College and Hospital, Ludhiana  immediately where  

she responded  to the treatment well.   She remained admitted in  

Daya Nand Medical  College and Hospital   upto  April  19,  1996.  

Since the treatment  at  Daya Nand Medical  College and Hospital  

was expensive,  the complainant No. 1 decided to shift his wife to  

PGI for further treatment.  On April 19, 1996, Smt. Harjit Kaur was  

admitted  in  PGI,  Chandigarh.   Dr.  Varun  Kulshrestha,  Senior  

Resident  Doctor,  Department  of  Plastic  Surgery attended to  her.  

The condition of Smt. Harjit Kaur  started improving  at PGI.  On  

May 15, 1995,  she was transfused A+ blood which was her blood  

group.  On  May 20, 1996,  the patient was transfused  B+  blood  

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group in the afternoon although her blood group was A+.    On the  

night of   May 20, 1996,  the  urine of the  patient was  reddish like  

blood and  the attendant nurse was informed accordingly.  As to the  

bad luck of Smt. Harjit  Kaur, on the next day, i.e., May 21, 1996  

again one bottle of B+ blood group was  transfused  although   her  

blood group  was A+.    Because of   transfusion of  mismatched  

blood,   the  condition  of  Smt.  Harjit  Kaur  became  serious;  her  

hemoglobin levels fell down to 5mg.  and urea level  went very high.  

Later  on,    it  transpired  that  due  to  transfusion  of  mismatched  

blood,   the  kidney  and  liver  of  the  patient  got  deranged.   The  

complainant  No.  1 made a  written complaint  to  the Head of  the  

Department of Plastic Surgery for  mismatched transfusion of blood  

to  the patient whereupon  an inquiry was conducted through senior  

doctor and  wrong transfusion  of the blood to the patient was found.  

The condition of Smt. Harjit  Kaur started deteriorating  day by day  

and she ultimately died on July 1, 1996.   In the complaint before  

the State Commission, the complainants alleged that the death of  

Smt. Harjit  Kaur was caused due to the negligence of Dr.  Varun  

Kulshrestha and the medical staff at PGI;  that there was negligence  

in  the  discharge of  service  by the PGI  and its  doctors  and they  

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claimed  damages to the tune of  rupees nine lacs for the loss of life  

of Smt. Harjit Kaur.

3. Dr. Varun  Kulshrestha filed reply to the  complaint. He  

principally set up the plea that although the  patient was transfused  

wrong blood but it was not due to any negligence on his part.   He  

stated  that due to the care exercised by him and the other nursing  

staff,  the  patient  became  alright  and   her  hematological  and  

biochemical parameters became almost normal and she recovered  

from mismatched blood transfusion.  It was stated in his reply that  

Smt. Harjit Kaur died of  septicemia and not  by mismatched blood  

transfusion and, therefore, the complaint was liable to be dismissed.

4. Insofar as PGI is concerned, no reply to the complaint  

was filed separately but they adopted the  reply filed by Dr. Varun  

Kulshrestha.   The parties filed their respective affidavits and also  

produced  before the State Commission the summary report and the  

documents concerning  treatment of Smt. Harjit Kaur.

5. The State  Commission  after  hearing  the  parties   and  

upon consideration of the materials made available to it, came to  

the conclusion that there was serious  deficiency  and negligence  

on the part of PGI and its attending doctor(s)/staff in transfusion of  

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wrong blood group to the patient which resulted in death of Smt.  

Harjit Kaur.  The State Commission in its  order dated  February 1,  

2000  held that PGI was liable to pay sum of rupees two lac to the  

complainants out of which 3/4th was to be put in the fixed deposit in  

favour of the minor son Amandeep Singh (complainant no. 2)  and  

1/4th amount  to  be paid  to  the  complainant  No.  1.     The State  

Commission also awarded the  cost of Rs. 5000/-.

6. PGI  challenged the order  of  the State Commission in  

appeal before the National Commission but without any success.

7. The  learned  counsel   for  PGI  raised  the  same  

contentions  before  us  which  were  raised   before  the   National  

Commission  that  the  cause  of  death  of  Smt.   Harjit  Kaur  was  

Septicemia  and  not  mismatched  blood   transfusion.    He  would  

submit  that  Smt.  Harjit  Kaur  recovered  from  mismatched  blood  

transfusion given to her on 20th and 21st May, 1996; her  hemoglobin  

level  was  brought  up  and  her   vital  organs  started  functioning  

normal.  The learned counsel  would submit that Smt. Harjit Kaur  

died due to  burn injuries and the other connected reasons arising  

out of said injury  and not due to mismatched blood transfusion and,  

therefore, no negligence can be attributed to the hospital and the  

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attending doctor/s.     He relied upon  two decisions of this Court  

namely (i)  Jacob Mathew v. State of Punjab and Another 1 and (ii)  

Martin F  D’Souza v. Mohd. Ishfaq.2

8. The  term  negligence  is  often  used  in  the  sense  of  

careless conduct.  Way back in 1866 in Grill vs. General Iron Screw  

Collier Co.3,  Wills J.  referred to negligence as “ ……… the absence  

of such care as it was the duty of the defendant to use.”  

9. Browen L.J.  in  Thomas v. Quatermaine4  stated, “ …  

idea of negligence and duty are strictly correlative, and there is no such thing  

as negligence in the abstract; negligence is simply neglect of some care which  

we are bound by law to exercise towards somebody”.

10.  In  Donoghue  v.  Stevenson5,   Lord  Macmillan   with  

regard to negligence made the following classic statement:

“The law takes no cognizance of carelessness in the  abstract.  It  concerns itself with carelessness only where  there is a duty to take care and  where failure in that duty  has caused damage.  In such circumstances  carelessness  assumes  the  legal  quality  of  negligence  and  entails  the  consequences in law of negligence.  The cardinal principle  of liability  is that the party complained of should owe to the  party complaining a duty to take care, and that the party  complaining should be able to prove that he has suffered  damage in consequence of a  breach of that duty.”

1 (2005)  6 SCC 2 (2009) 3 SCC 3 (1866) L.R. 1  C.P. 600 at 612 4 (1887)18 Q.B.D. 685 at 694 5 (1932)A.C. 562 at 618-619

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11. In   Jacob  Mathew1 this  Court  while  dealing  with  

negligence  as  tort  referred  to   the  Law  of  Torts,  Ratanlal  and  

Dhirajlal, (24th Edn., 2002 edited by Justice  G.P. Singh) and noticed  

thus:

“Negligence is the breach of a duty caused by the  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.  Actionable  negligence consists  in  the  neglect of the use of ordinary care or skill towards a  person  to  whom  the  defendant  owes  the  duty  of  observing ordinary care and skill, by which neglect the  plaintiff has suffered injury to his person or property.  …  the  definition  involves  three  constituents  of  negligence: (1) A legal duty to exercise due care on  the part of the party complained of towards the party  complaining the former’s conduct within the scope of  the  duty;  (2)  breach  of  the  said  duty;  and  (3)  consequential damage. Cause of action for negligence  arises  only  when damage occurs;  for,  damage is  a  necessary ingredient of this tort.”

12. Insofar as civil law is concerned, the term negligence  is  

used for the purpose of fastening the defendant  with liability  of  the  

amount of damages.   To fasten  liability in criminal law, the degree  

of negligence has to be higher than  that of negligence enough to  

fasten liability for  damages in civil law.   

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13. In  Syed Akbar v. State of Karnataka6,    this Court  dealt  

with in details the distinction between negligence in civil law and in  

criminal law.   It has been held  that there is  a marked  difference as  

to the  effect  of evidence, namely, the  proof,  in civil and criminal  

proceedings.    In  civil  proceedings,   a  mere  preponderance  of  

probability  is sufficient, and the defendant  is not necessarily entitled  

to  the  benefit  of   every  reasonable  doubt;   but  in  criminal  

proceedings, the persuasion of guilt must amount to such  a  moral  

certainty  as convinces the mind of the Court,  as a reasonable man,  

beyond all  reasonable  doubt.

14. In  Bhalchandra Waman Pathe v. State of Maharashtra7,   

this Court held that while negligence is an  omission to do something  

which  a reasonable man, guided upon those considerations which  

ordinarily  regulate the conduct  of  human affairs, would do,  or doing  

something which a prudent and reasonable man would not do.

15. With regard to the professional negligence, it is now well  

settled that a professional may be held liable for negligence if he was  

not  possessed  of the requisite skill  which he professed  to have  

possessed or, he did not exercise, with reasonable competence in  

6 (1980) 1 SCC 30 7 1968 ACJ 38

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the given case the skill  which he did possess.    It  is  equally  well  

settled  that   the  standard  to  be  applied  for   judging,  whether  the  

person  charged  has  been  negligent  or  not;   would  be  that  of  an  

ordinary  person  exercising   skill  in  that  profession.    It  is  not  

necessary   for  every  professional  to  possess  the  highest  level  of  

expertise in that  branch which he practises.

16. In  Jacob Mathew1 as well as  Martin F  D’Souza2,  this  

Court  quoted with the approval the opinion of  MacNair, J in Bolam  

v. Friern Hospital Management Committee8 :   

“[W]here you get  a situation which involves the  use of some special skill or competence, then the test  as to whether there has been negligence or not is not  the test of the man on the top of a Clapham omnibus,  because he has not got this special skill. The test is  the  standard  of  the  ordinary  skilled  man  exercising  and professing to have that special skill. A man need  not  possess  the  highest  expert  skill  …  It  is  well- established law that it is sufficient if he exercises the  ordinary skill of an ordinary competent man exercising  that particular art.”

17. In   Hucks v. Cole9,  Lord Denning stated that a medical  

practitioner  would be liable only  where his conduct fell below that of  

the standards of a reasonably competent practitioner in his field.

88. (1957) 2 All ER 118(QBD) 9  (1968) 118 New LJ 469

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18. Lord President  (Clyde) in  Hunter  v.  Hanley10  observed  

that  the  true  test   for   establishing  negligence  in   diagnosis  or  

treatment on the part of a doctor is whether he has been proved to be  

guilty  of such failure as no doctor of ordinary skill would be guilty  of,  

if acting with ordinary care.

19. In  their  classic  work,  ‘On Professional  Negligence (fifth  

edition)’, Jackson & Powell  state that mistakes made in the  course  

of treatment may be purely  physical; purely intellectual or they may  

fall   somewhere  between the  two.   Whichever  form the   mistake  

takes, there are  two separate questions to consider : (i) whether the  

defendant made a “mistake”;  (ii) if so, whether the mistake was one  

which a reasonably careful and skilful medical practitioner would not  

have  made.    The  claimant  must,  of  course,  succeed  on  both  

questions in order to  establish negligence.   

20. It  needs  no  emphasis  that  in  the  medical  negligence  

actions, the burden is on the claimant to prove breach of duty, injury  

and  causation.   The  injury  must  be  sufficiently  proximate  to  the  

medical practitioner’s breach of duty.  In the absence of evidence to  

the contrary adduced by the opposite party, an inference of causation  

may be drawn even though positive or scientific  proof is lacking. 10 1955 SLT 213

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21. ‘The  Physiological  Basis  of  Medical  Practice  (Eight   

Edition)’ by Charles H. Best  and Norman B. Taylor in Chapter 26  

deals with transfusion;   blood groups.    In respect of  incompatible  

transfusions, while dealing with its effects,  it is stated that if blood of  

the wrong (incompatible) ABO  blood group is transfused, a hemolytic  

transfusion reaction  usually results red cells are destroyed and there  

may be jaundice with hemoglobinemia   and hemoglobinuria.  Chills,  

fever  and   shock  may  occur.   Renal   insufficiency  may  ensue  

believed by some to  be due to  a reduced blood flow through the  

glomeruli.

22. The patient, Harjit Kaur, got  burn injuries to the extent of  

50% on March 30,  1996.   She was initially  treated at  Daya Nand  

Medical  College  and  Hospital,  Ludhiana  for  about  20  days.   Her  

condition improved  satisfactorily at Daya Nand Medical College and  

Hospital.  She was admitted to PGI, Chandigarh on  April 19, 1996.  

The available material placed before the State Commission  shows  

that  at  the  time  of  her  admission,   Smt.  Harjit  Kaur  was  taking  

medicine orally and passing urine;  75% of eschar was removed by  

May 1, 1996.  Her condition had substantially improved at PGI before  

May 20, 1996 and she had no signs of septicemia.    It was only after  

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mismatched blood transfusion B+ on  two consecutive  days, i.e., 20th  

and 21st May, 1996,  that she became anemic  (her hemoglobin level  

was reduced to 5 per gram) and her kidney and liver were deranged.  

It  is true that her hemoglobin was brought up in few days but her  

condition  otherwise   got  deteriorated.   Although  she  survived  for  

about  40 days after  mismatched blood transfusion but  from that  it  

cannot  be  said   that  there  was  no  causal  link  between  the  

mismatched  transfusion  of  blood  and  her  death.    Wrong  blood  

transfusion  is an error which no hospital/doctor exercising  ordinary  

care would have made.  Such an error is not an error of professional  

judgment but in the very nature of things a sure  instance of medical  

negligence.   The  hospital’s  breach  of  duty  in  mismatched  blood  

transfusion  contributed  to  her  death,  if  not  wholly,  but  surely  

materially.    Mismatched  blood  transfusion  to  a  patient  having  

sustained 50% burns by itself speaks of negligence.  Therefore, in the  

facts and circumstances of the case,  it cannot be said  that the death  

of Smt. Harjit Kaur was not caused by the breach of duty on the part  

of the hospital and its attending staff.

23. The State Commission observed:

“…..   that  there  has  been  serious  deficiency  and  negligence  on  the  part  of  the  PGI  and  its  

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attending  doctor(s)/staff  for  transfusing  wrong  blood  group to the patient which caused death of the wife of  complainant No. 1.  Mismatching of blood has been  confirmed  by  the  Senior  Resident  in  the  Death  Summary also (Annexure C/7).   Once the patient  is  brought  to  the  PGI  or  any  other  Institute  of  Health  Care, the back-ground/History, if any, for example that  the patient was maltreated by the husband, does not  absolve the Hospital from its professional  obligation… …”   

24. Affirming the aforesaid view of the State Commission, the  

National Commission held thus:

“….. It is seen that the patient’s kidney was damaged  and the blood level reached to 100 gms. percentage,  hemoglobin came down to 5 mg. after the mismatched  blood transfusion was given by the Doctor in the said  Hospital.  It was only after the Complainant gave the  written complaint to the hospital regarding the wrong  transfusion  of  blood given to  the patient,  an  inquiry  was  made  and  it  was  found  correct.   The  damage  control  treatment  started  only  after  the  written  complaint was given by the complainant.   Though it is  argued  by  the  Counsel  for  the  Appellant  that  the  percentage levels were brought down to normal, it is  very clear to us that the internal imbalances of liver  and kidney functioning and deteriorating hemoglobin  levels  started  only  after  the  mismatched  blood  transfusion was given.  Though septicemia has been  written as the ultimate cause of  death,  the patient’s  health took a nose dive only after  wrong blood was  given to her and this is clearly negligence on the part  of  the  Doctors  of  the  Hospital  which  the  appellants  cannot disown or absolve themselves….”  

25. We concur with the view of the National Commission as it  

does not  suffer from any error of law.

26. In the result, the appeal fails and is dismissed with costs  

which we quantify at Rs. 20,000/-.  

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……………………..J (D.K. Jain)    

……………………..J (R.M. Lodha)    

New Delhi, May 29, 2009.

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