12 October 2004
Supreme Court
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SAVITA GARG Vs DIRECTOR, NATIONAL HEART INSTITUTE

Bench: B.N.AGRAWAL,A.K.MATHUR
Case number: C.A. No.-004024-004024 / 2003
Diary number: 8185 / 2003
Advocates: DINESH KUMAR GARG Vs NIKHIL NAYYAR


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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 N T  

A.K. MATHUR, J.

       This appeal is directed against the order passed by the   National Consumer Disputes Redressal Commission (hereinafter to  be referred to as ’the Commission’), New Delhi whereby the  Commission has dismissed  the original petition of the appellant on  the ground of non-joinder of necessary parties.

       Brief facts which are necessary for disposal of this appeal are  as follows.   The  appellant is the wife of one deceased A.K.Garg who was  admitted to the National Heart Institute (hereinafter referred to as ’the  Institute’)  for medical treatment and because of the negligence of the  doctors of the Institute he could not get proper medical treatment and  ultimately he died. The deceased A.K.Garg was employed as  Electrical Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased  was drawing a salary of Rs.8000/- per month at the time of his death.  He left behind his family members namely; (i) Smt.Savit Garg (wife),  (ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg (son), (iv) Miss.  Ruchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop Garg  (brother).  Prior to the admission of the deceased, A.K.Garg in the  Institute he was being treated at G.B. Pant Hospital  and he did not  improve there, therefore, his case was referred to the Institute by his  employer, IDPL. The deceased was admitted for angiography on  4.7.1994 and a sum of Rs.14,000/- was deposited for his treatment.   He was discharged on 5.7.1994 after angiography. Again he was  admitted on 2.8.1994 at 11.15 A.M. and remained there till 9.8.1994  and ultimately died at the Institute.  It was alleged that on 3.8.1994 he  was operated and was brought to the Intensive Care Unit of the  Institute.  No attendant  was allowed to see the patient  except  through the glass windows  of I.C.U.  The deceased was operated  twice by Dr.O.P. Yadav of the Institute for his treatment. It is further  alleged that Dr.O.P.Yadav  was too much worried and perturbed after  the deceased’s operation. On the said day i.e. on 3.8.1994,  8 bottles  of blood were transfused in the body of the deceased and even on  4.8.1994 another 8 bottles of blood were demanded by the Doctors of  the Institute and the same was somehow arranged. The deceased is  said to have developed jaundice may be because of wrong  transfusion or extra transfusion of blood. It is further alleged that the  deceased developed septic and as   the septic in the bone became  incurable, therefore a Doctor from Batra Hospital was called for to  amputate one leg of the deceased A.K.Garg. Thereafter , as it was  reported to be case of kidney failure, the deceased was put on  dialysis. However, on 9.8.1994 at 2.30 hours the deceased was

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declared dead. Therefore, a complaint was filed before the  Commission claiming a sum of Rs.45 lacs, the details of which have  already been given in the complaint.  The appellant has detailed the  reasons for the negligence in her original petition filed before the  Commission. An affidavit in opposition was filed by the Institute and  they denied the allegations of negligence and pointed out that all  proper care was taken, there is no negligence on the part of the  Institute. An objection was also taken that the provisions as contained  in the Consumer Protection Act, 1986 do not satisfy the requirement  of a complaint as defined under the Act as it does not disclose any  deficiency. The Institute also challenged the jurisdiction of the  Commission to entertain the said original petition.  

       A rejoinder was also filed by the appellant  and it is alleged that  septic was developed because of the negligence which shows lack of  care on the part of the doctors. However,  when the matter came up  for hearing on 12.4.2002, the Commission directed both the parties to  file brief notes of submissions on the question of maintainability of the  complaint as well as the effect of non-impleading  the attending  doctors against whom the medical negligence has been alleged and  the matter was posted to 2.5.2002 for directions.  Thereafter,  ultimately the matter was disposed of by the Commission by its order  dated 6.2.2003 holding that the original petition is not maintainable in  the absence of the treating doctors being impleaded as party. It was  also observed  that no effort was made by the appellant to implead  the concerned doctors at any stage of the proceedings.  Therefore,  the Commission held that there is no alternative but to dismiss the  complaint for non-joinder of parties. The Commission however  observed that considering the age of the deceased and the number of  dependents upon her, the Institute will consider the matter  sympathetically and make some ex-gratia payment to the family  members of the deceased.

       The question is whether non-impleading the treating doctor as  party could result in dismissal of the original petition for non-joinder of  necessary party.

       It is the common experience that when a patient goes to a  private clinic, he goes by the reputation of the clinic and with the hope  that proper care will be taken by the Hospital authorities. It is not  possible for the patient to know that which doctor will treat him. When  a patient is admitted to a private clinic/ hospital it is hospital/ clinic  which engages the doctors for treatment. In the present case, the  appellant’s husband was admitted to the best of the hospital and it is  not possible for the appellant to find out that who is the best doctor  and who is not. Normally, the private clinics go by the reputation and  people look forward for best treatment when they are run  commercially. It is the responsibility of the clinic that they must  provide best of the services when they charge for the services  rendered by them. In case it is found that services rendered by the  clinic or hospital, as the case may be, is not up to the mark and it  involves some negligence on their part,  for which the patients suffer,  then they are bound to reimburse them. They charge fee  for the  services rendered by them and they are supposed to bestow the best  care. Looking at the present appeal, the whole claim petition was  dismissed simple on the ground that  the treating doctor was not  impleaded as a party. The question is therefore, whether in the  absence of the treating doctor could the original petition  be  dismissed on the ground of non-joinder of necessary party. As per the  provisions of Section 22 of the Consumer Protection Act, 1986  (hereinafter referred to as ’the Act’)  the Commission has to regulate  its business. Section 22 lays down the power of and procedure  applicable to the National Commission. It reads as under:

       " 22. Power of and procedure applicable to the

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National Commission.- The National  Commission shall, in the disposal of any  complaints or any proceedings before it, have-

(a)     the power of a civil court as specified in sub- sections (4), (5) and (6) of  section 13;

(b) the power to issue an order to the opposite  party directing him to do any one or more of the  things referred to in clauses (a) to (i) of sub- section (1) of section 14,                  and follow such procedure as may be prescribed  by the Central Government.".

According to Section 22 whatever procedures which have  been prescribed under Section 13 for the District Forum shall be  applicable.  Sub-sections (4), (5) & (6) of Section 13 which are  relevant for our purpose read as under:

       " 13. Procedure on receipt of complaint.-                                  xx              xx              xx

(4)     For the purposes of this section, the District  Forum shall have be same powers as are  vested in a civil court under Code of Civil  Procedure, 1908 while trying a suit in respect  of the following matters, namely:-

(i)     the summoning and enforcing the attendance  of any defendant or witness and examining  the witness on oath,

(ii)    the discovery and production of any document  or other material object producible as  evidence,

(iii)   the reception of evidence on affidavits,

(iv)    the requisitioning of the report of the  concerned analysis or test from the  appropriate laboratory or from any other  relevant source,

(v)     issuing of any commission for the examination  of any witness, and

(vi)    any other matter which may be prescribed.

(5)     Every proceeding before the District Forum  shall be deemed to be a judicial proceeding  within the meaning of section 193and 228 of  the Indian Penal Code (45 of 1860), and the  District Forum shall be deemed to be a civil  court for the purposes of section 195, and  Chapter XXVI of the Code of Criminal  Procedure, 1973 (2 of 1974).

(6)     Where the complainant is a consumer

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referred to in sub-clause (iv) of clause(b) of  sub-section (1) of section 2, the provisions of  rule 8 of Order 1 of the First Schedule to the  Code of Civil Procedure, 1908 ( 5 of 1908)  shall apply subject to the modification that  every reference therein to a suit or decree  shall be construed as a reference to a  complaint or the order of the District Forum  thereon."

Sub-sections (4), (5) & (6) of Section 13 lay down that the  Forum shall have the power to summon and enforce the  attendance of any defendant or witness as laid down in the Code  of Civil Procedure. Likewise, it shall have the power to direct for  production of material object producible as evidence, reception  of evidence on affidavit; requisitioning of the report of the  concerned analysis or test from the appropriate laboratory or  from any other relevant source; issuing of any commission for  the examination of any witness and any other matter which may  be prescribed.  Sub-section (5) says that every proceeding  before the District Forum shall be judicial proceeding within the  meaning of sections 193 and 228 of the Indian Penal Code and  the District Forum shall be deemed to be a Civil Court for the  purposes of section 195 and Chapter XXVI of the Code of Civil  Procedure.  Sub-section (6) says that when there are more than  one consumer, then one of them can sue as required under  Order 1 Rule 8 of the Code of Civil Procedure. Therefore,  if  there are number of consumers, one of them can represent  the  interest of all.  Therefore, as far as the Commission is  concerned,  the provisions of the Code of Civil Procedure are  applicable to  the limited extent and not all the provisions of the  Code of Civil Procedure are made applicable to the proceedings  to  the National Forum.  Rules have also been framed under the  Act, known as the Consumer Protection Rules, 1987, where Rule  14 has prescribed the procedure to be followed by the  Commission. Rule 14 says  that the name, description and the  address of the complainant and the opposite parties, as the case  may be, so far as they can be ascertained, should be given.   Clause (b) of sub-section (1) which is relevant for our purposes  reads as  under:

" (b) the name, description and address of the  opposite party or parties, as the case may be, so far  as they can be ascertained"

Therefore, according to the procedure laid down by the  Rules a complainant has to give the name, description and  address of the opposite party or parties so far as they  can be  ascertained.                  So far as the filing of complaint  directly before the  Commission because of higher valuation, the procedures laid  down in Rule 14 of the Rules have to be followed and in that  case,  the name of the opposite party has to be given so far as  they can be ascertained. In the present case,  the appellant filed  original petition impleading the Institute where her husband was  admitted as a party but she did not implead the treating doctors  and nurses who were attending on her husband. Though the  Commission directed that necessary parties may be impleaded  and it appears that no effort was made to implead the treating  surgeon or the nursing staff as a party. Therefore, the question is  whether non-impleading the treating surgeon  or a nursing staff  can be said to be necessary party and if they are not impleaded  then in that case, the original petition can result into dismissal on

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account of non-joinder of necessary party.  So far as the law with  regard to the non-joinder of necessary party under Code of Civil  Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there  also even no suit shall  fail because of mis-joinder or non-joinder  of parties. It can proceed against the persons who are parties  before the Court.  Even the Court has the power under Order 1  Rule 10(4) to give direction to implead a person who is a  necessary party.  Therefore, even if  after the direction given by  the Commission the concerned doctor and the nursing staff who  were looking after the deceased A.K.Garg have not been  impleaded as opposite parties  it can not result in dismissal of  the original petition as a whole.  

The Consumer Forum is primarily meant to provide better  protection in the interest of the consumers and not to short circuit  the matter or to defeat the claim on technical grounds. Reverting  back to the facts of the present case, whether non-joinder of the  treating doctor, nursing staff can result into dismissal of the claim  petition. As a matter of fact, when a patient is admitted to the  highly commercial hospital like the present institute, a thorough  check up of the patient is  done by the hospital authorities, it is   the Institute which selects after the examination of the patient  that he suffers from what  malady and who is the best doctor  who can attend, except when  the patient or the family members  desire to be treated by  a particular doctor or the surgeon as the  case may be.  Normally, the private hospitals have a panel of  doctors in various specialities & it is they who chooses who is to  be called. It is very difficult for the patient to give any detail that  which doctor treated the patient and whether the doctor was  negligent or the nursing staff was negligent. It is very difficult for  such patient or his relatives to implead them as parties in the  claim petition.  It will be an impossible task and if the claim is to  be defeated on that ground it will virtually be frustrating the  provisions of the Act, leaving the claimant high and dry. We  cannot place such a heavy burden on the patient or the family  members/ relatives to implead all those doctors who have  treated the patient or the nursing staff to be impleaded as party.   It will be a difficult  task  for the patient or his relatives to  undertake this  searching enquiry from the Hospital and  sometimes hospital may not co-operate. It  may give such details  and sometimes may not give the details. Therefore,  the  expression used in Rule  14 (1) (b), " so far as they can be  ascertained", makes it clear that the framers of the Rules  realized that it will be very difficult specially in the case of  medical profession to pinpoint that who is responsible for not  providing proper and efficient service which gives rise to the  cause for filing a complaint and specially in the case like the one  in hand.  The patients once they are admitted to such hospitals,  it is the responsibility of the said hospital or the medical  institutions  to satisfy that all possible care was taken and no  negligence was involved in attending  the patient. The burden  cannot be placed on the patient to implead all those treating   doctors or the attending staff of the hospital as a party so as to  substantiate his claim. Once a patient is admitted in a hospital it  is the responsibility of the Hospital to provide the best service  and if  it is not, then hospital cannot take shelter under the  technical ground that the concerned surgeon or the nursing staff,  as the case may be, was not impleaded, therefore, the claim  should be rejected on the basis of non-joinder of necessary  parties. In fact, once a claim petition is filed and the claimant has  successfully discharged the initial burden that the hospital was  negligent, as a result of such negligence the patient  died, then in  that case the burden lies on the hospital and  the concerned  doctor who treated that patient that  there was no negligence  involved in the  treatment.  Since the burden is on the hospital,

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they can discharge the same by producing that doctor who  treated the patient in defence to substantiate their allegation that  there was no negligence. In fact it is the hospital who engages  the treating doctor thereafter it is their responsibility.  The burden  is greater on the Institution/ hospital  than that of the claimant.  The institution is private body and they are responsible to  provide efficient service  and if in discharge of their efficient  service  there are couple of weak links which has caused  damage to the patient then it is the hospital which is to justify the  same and it is not possible for the claimant to implead  all of  them as parties.

In this connection, learned counsel appearing for the  respondent ably tried to make a distinction between ’contract for  service’ and ’contract of service’. He submitted that those  persons who are on contract for service  are different from those  persons  who are on contract of service. He submitted that in a  contract for service there is a contract whereby one party  undertakes to render service  e.g. professional or technical  service, to or for another in the performance of which he is not  subject to  detailed direction and control but exercises  professional or technical skill and uses his own knowledge and  discretion. A ’contract of service’ implies relationship of master  and servant and involves an obligation to obey orders in the work  to be performed and as to its mode and manner of performance.

By this learned counsel submitted that so far as the  permanent staff of the hospital is concerned, there is a contract  of service and negligence thereof the hospital can be made liable  and for that they need not be impleaded as parties in respect of  any negligence of service  but the doctors who come on visit,  they are on contract for service over which the hospital has no  control and therefore, unless they are impleaded as parties, no  relief can be given. He also based his submission with reference  to some of the English decisions  given in the case of Gold & Ors  v. Essex County Council reported in [1942] 2 All E.R.237 and   Collins v. Hertfordshire County Council & Anr. reported in [1947]  1 All E.R. 633. So far as Gold & Ors. v. Essex County Council is  concerned, in that case,  the infant plaintiff was treated by a  radiographer, an employee of the respondents at one of their  county hospitals. By reason of his failure to provide adequate  screening material in giving Grenz-ray treatment the infant  plaintiff suffered injury to her face. It was proved  that the  radiographer was fully competent to administer the treatment  given to the infant plaintiff.  However, it was held that as the  radiographer was under a contract of service of the respondents,  they were liable for his negligence under the doctrine of   respondeat superior.  It was further held that if a local authority  had exercised power under the Public Health Act, 1936, the  obligation undertaken is an obligation to treat and the authority is  liable  if the person employed by it to perform the obligation on  its behalf  acts without due care. This was a case in which the  radiographer was under regular employment with the county  council. This is   a case in which a person  was on contract of  service and not on contract for service. Therefore, this case does  not provide any assistance to the present case.

In the case of  Collins v. Hertfordshire County Council &  Anr, while undergoing an operation, a patient in a county council  hospital was killed by an injection of cocaine which was given by  the operating surgeon in the mistaken belief that it was procaine.  The operating surgeon had ordered procaine on the telephone,  but the resident house surgeon ( who was then unqualified) had  mis-heard "procaine" as "cocaine", and had told the pharmacist  to dispense a mixture which was, in fact, lethal. The pharmacist

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dispensed the mixture without making further inquiry  and without  requiring the written instruction of a qualified person, and the  operating surgeon had given the injection without checking that   it was what he had ordered.  The operating surgeon, the house  surgeon, and the pharmacist were all three in the full-time  or  part-time employment of the council. In an action by the patient’s  widow against the county council and the operating surgeon  alleging that the death was the result of (a) the council’s  negligence in the conduct of their hospital, and (b) the operating  surgeon’s failure to exercise reasonable care. It was held as  follows: " (i) The county council, in managing the  hospital, was permitting a dangerous and  negligent system to be in operation, and the  operating surgeon and the house surgeon had  failed to exercise reasonable skill and care.

       (ii) the council were able to control the  manner in which the resident medical officer  performed her work and, therefore, the acts of  the house surgeon done in the course of her  employment were acts for which the council  was responsible,  

(iii) although the operating surgeon was  a part-time employee on the staff of the  council, the council could not control how he  was to perform his duties and was not  responsible for his want of care."

Learned counsel submitted that in view of the above   decisions since the doctor was on part-time employment, as  such he was not responsible. With respect this distinction which  is tried to be advanced by learned counsel for the respondent,  does not find favour in subsequent decision rendered by the  English Court in the case of Cassidy v. Ministry of Health  reported in [1951] 2 K.B. 343.  In this case, the earlier decision in  the case of     Gold & Ors. v. Essex County Council reported in  [1942] 2 All E.R.237  came up for consideration. Lord Denning,  J. speaking for himself observed that  a hospital authority is  liable for the negligence of doctors and surgeons employed by  the authority under a contract for service arising in the course of  the performance of their professional duties.  It was observed as  follows:

" The hospital authority is liable for the  negligence of professional men employed by  the authority under contracts for service as  well as under contracts of service. The  authority owes a duty to give proper treatment  \026 medical, surgical, nursing and the like- and  though it may delegate the performance of  that duty to those who are not its servants, it  remains liable if that duty be improperly or  inadequately performed by its delegates.  

The plaintiff entered a hospital for an  operation on his left hand, which necessitated  post-operational treatment. While undergoing  that treatment he was under the care of the  surgeon who performed the operation, who  was a whole-time assistant medial officer of  the hospital, the house surgeon and members  of the nursing staff of the hospital, all of whom  were employed under contracts of service. At

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the end of the treatment it was found that his  hand had been rendered useless. The trial  judge dismissed his action for damages for  negligent treatment which he brought against  the hospital on the ground that he had failed  to prove any negligence. On appeal it was  held that in the circumstances, the doctrine of  res ipsa loquitur  applied, and the onus lay on  the hospital authority to prove that there had  been no negligence on its part or on the part  of anyone for whose acts or omission it was  liable, and that onus had not been  discharged."

Therefore, as per the English decisions also the distinction  of ’contract of service’ and ’contract for service’, in both the  contingencies  the courts have taken the view that the hospital is  responsible for the acts of their permanent staff as well as staff  whose services are temporarily requisitioned for the treatment of  the patients. Therefore, the distinction which is sought to be  pressed into service so ably by learned counsel cannot absolve  the hospital or the institute as it is responsible for the acts of its  treating doctors who are on the panel and whose services are  requisitioned from time to time by the hospital looking to the  nature of the  diseases.  The hospital or the institute is  responsible and no distinction could be made between the two  classes of persons  i.e.  the treating doctor  who was on  the staff  of the hospital and the nursing staff and the doctors whose  services were temporarily taken for treatment of the patients. On  both, the hospital as the controlling authority is responsible and it  cannot take the shelter  under the plea that treating physician is  not impleaded as a party, the claim petition should be dismissed.  In this connection, a reference may be made to a decision of this  Court in the case of Indian Medical Association v. V.P. Shantha  & ors. reported in AIR 1996 SC 550.  There  the question had  come up before this Court with regard to the provisions of the  Consumer Protection Act, 1986 vis-‘-vis the medical profession.  This Court has dealt with all aspects of medical profession from  every angle and has come to the conclusion that  the doctors or  the institutes  owe a duty to the patients and they cannot get  away in case of lack of care to the patients. Their Lordships have  gone to the extent that even if the doctors are rendering services  free of charge to  the patients in the Government hospitals,  the  provisions of the Consumer Protection Act will apply  since the  expenses of running  the said hospitals are met by appropriation  from the Consolidated Fund which is raised from the taxes paid  by the tax payers. Their Lordships  have dealt  with regard to the  definition of  "service" given in Section 2(1)(o) of the Consumer  Protection Act, 1986, and have observed as follows:

" The service rendered free of charge to  patients by doctors/ hospitals whether non- Govt. or Govt.  who render free service to  poor patients but charge fee for services  rendered to other patients would, even though  it is free, not be excluded from definition of  service in S.2(1)(o). The Act seeks to protect  the interests of consumers as a class. To hold  otherwise would mean that the protection of  the Act would be available to only those who  can afford to pay and such protection would  be denied to those who cannot so afford,  though they are the people who need the  protection more. It is difficult to conceive that  the legislature intended to achieve such a

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result. Another consequence of adopting a  construction, which would restrict the  protection of the Act to persons who can  afford to pay for the services availed by them  and deny such protection to those who are not  in a position to pay for such services, would  be that the standard and quality of services  rendered at an establishment would  cease to  be uniform. It would be of a higher standard  and of better quality for persons who are in a  position to pay for such service while the  standard and quality of such service would be  inferior for person who cannot afford to pay for  such service and who avail the service without  payment. Such a consequence would defeat  the object of the Act. All persons who avail the  services by doctors and hospitals who give  free service to poor patients but charge fee for  others, are required to be treated on the same  footing irrespective of the fact that some of  them pay for the service and others avail the  same free of charge. Most of the doctors and  hospitals work  on commercial lines and the  expenses incurred for providing services free  of charge to patients who are not in a position  to bear the charges are met out of the income  earned by such doctors and hospitals from  services rendered to paying patients. The  Government hospitals may not be commercial  in that sense but on the overall consideration  of the objectives and the scheme of the Act it  would not be possible to treat the   Government hospitals differently. In such a  situation the persons belonging to "Poor class"  who are provided services free of charge are  the beneficiaries of the service which is hired  or availed  of by the "paying class". Service  rendered by the doctors and hospitals who  render free service to poor patients and  charge fees for others irrespective of the fact  that part of the service is rendered free of  charge, would nevertheless fall within the  ambit of the expression "service" as defined in  Section 2(1)(o) of the Act."         

Therefore, the distinction between the ’contract of  service’  and ’contract for service’ has been very elaborately discussed in  the above case and  this Court has extended the provisions of  the Consumer Protection Act, 1986, to the medical profession  also and included in its ambit the services rendered by private  doctors as well as the Government Institutions  or the non- Governmental institutions, be it free medical services provided   by the Government Hospitals. In the case of Achutrao Haribhau  Khodwa & Ors. v. State of Maharashtra & Ors. reported in (1996)  2 SCC 634, Their Lordships observed that  in cases where the  doctors act carelessly and in a manner which is not expected of  a medical practitioner, then in such a case an action on torts  would be maintainable. Their Lordships  further observed                                                                                                           that if the doctor has taken proper precaution and despite that if  the patient does not survive  then the Court should be very slow  in  attributing negligence on the part of the  doctor. It was held as  follows:

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"  A medical practitioner has various  duties towards his patient and he must act   with a reasonable degree of skill and  knowledge and must exercise a reasonable  degree of care. This is the least which a  patient expects from a doctor. The skill of  medical practitioners differs from doctor to  doctor. The very nature of the profession is  such that there may be more than one course  of treatment which may be advisable for  treating   a patient. Courts would indeed be  slow in attributing negligence on the part of a  doctor if he has performed his duties to the  best of his ability and with due care and  caution. Medical opinion may differ with   regard to the  course of action to be taken by  a doctor treating a patient, but as long as a  doctor acts in a manner  which  is acceptable  to the medical profession and the court finds  that he has attended on the patient with due  care, skill and diligence and if the patient still  does not survive or suffers a permanent  ailment, it would be difficult to hold the doctor  to be guilty of negligence. But in cases where  the doctors act carelessly and in a manner  which is not expected of a medical  practitioner, then in such a case an action in  torts would be maintainable."

Similarly, our attention was invited to a decision in the case of  Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S.  Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships  observed as follows:

"  Very often in a claim for  compensation  arising out of medical negligence a plea is  taken that it is a case of bona fide mistake  which under certain circumstances may be  excusable, but a mistake which would  tantamount to negligence cannot be  pardoned. In the former case a court can  accept that ordinary  human fallibility  precludes the liability while in the latter the  conduct of the defendant is considered to  have gone beyond the bounds of what is  expected of the skill of a reasonably  competent doctor."

Therefore, as a result of our above discussion we are opinion  that  summary dismissal of the original petition by the  Commission on the question of non-joinder of necessary parties  was not proper. In case, the complainant fails to substantiate the  allegation, then the complaint will fail. But not on the ground of  non-joinder of necessary party.   But at the same time  the  hospital can discharge the burden  by producing the treating  doctor in defence   that all due care and caution was taken and  despite that  patient died. The hospital/Institute  is not going to  suffer on account of non-joinder of necessary parties and  Commission should have proceeded against hospital Even  otherwise also the Institute had to produce the concerned  treating physician and has to produce evidence that all care and  caution was taken by them or their staff to justify that there was  no negligence involved in the matter. Therefore, nothing turns in

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not impleading the treating doctor as a party. Once an allegation  is made that the patient was admitted in a particular hospital and  evidence is produced to satisfy that  he died because of lack of  proper care and negligence, then the burden lies on the hospital  to justify that there was no negligence on the part of the treating  doctor/ or hospital. Therefore, in any case, the hospital which is  in better position to disclose that what care was  taken or what  medicine was administered to the patient. It is the duty of the  hospital to satisfy that there was no lack of care or diligence. The  hospitals are institutions, people expect better and efficient  service, if the hospital fails to discharge their duties through their  doctors  being employed on job  basis or employed on contract  basis, it is the hospital which has to justify  and  by not  impleading a particular  doctor will not absolve the hospital of  their responsibilities.  

       In the result,  we allow this appeal, set aside the order  dated 6.2.2003 passed by the National Consumer Disputes  Redressal Commission, New Delhi in Original Petition No.121 of  1995 and remit back the original petition to the National  Consumer Disputes Redressal Commission  to  be decided in  accordance with law. No order as to costs.