National Consumer Disputes Redressal
Dr. Yogesh Bavishi vs Tanima Bandyapadhyay & 2 Ors. on 29 May, 2026
Date of pronouncement:- 29.05.2026
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION NEW DELHI
FIRST APPEAL NO. 2148 OF 2018
(Against the Order dated 02.11.2018 in Complaint 120/2013 of the State Consumer Disputes
Redressal Commission West Bengal)
Dr. Yogesh Bavishi
General & Laparoscopic Surgeon
C/o Belle Vue Clinic
9, Dr. U.N. Brahmachari Street
(formally known as Loudon Street),
Kolkata 700017 (since deceased)
Through LRs:
Kavita Bavishi W/o Late Dr. Yogesh Bavishi
Priyank Bavishi S/o Late Dr. Yogesh Bavishi
R/o 703, Nariman Residency, Rajmata Jijabai Road,
Pump House, Andheri East, Mumbai-400093 .....Appellant
Versus
1. Smt. Tanima Bandyapadhyay
W/o Sri Biswanath Bandyapadhyay
Vivekananda Road, Shanti Nagar
P.O. Burnpur, Asansol Dist. Burdwan
Presently at 232, Harisabha Math (Ambagan),
Bansdroni, Usha Park
Kolkata-700 084
2. Dr. Tapan Sarkar
Belle Vue Clinic
9, Dr. U.N. Brahmachari Street,
Kolkata - 700 017
3. Belle Vue Clinic
9, Dr. U.N. Brahmachari Street
(formally known as Loudon Street)
Kolkata - 700 017. .. Respondents
FA/2148 of 2018, FA/75 & 76 of 2019 Page 1 of 31
FIRST APPEAL NO. 75 OF 2019
(Against the Order dated 02.11.2018 in Complaint 120/2013 of the State Consumer Disputes
Redressal Commission West Bengal)
Belle Vue Clinic,
9, Dr. U.N. Brahmachari Street,
Kolkata-700017 ..... Appellant
Versus
1. Tanima Bandyapadhyay,
W/o Sri Biswanath Bandyapadhyay,
Vivekananda Road, Shanti Nagar,
P.O.- Burnpur, Asansol,
Dist.- Burdwan,
Presently at 232, Harisabha Math (Ambagan),
Bansdroni, Usha Park, Kolkata - 700084.
2. Dr. Yogesh Bavishi
General & Laparoscopic Surgeon
Belle Vue Clinic, 9, Dr. U.N. Brahmachari Street
(formally known as Loudon Street),
Kolkata - 700017 (since deceased)
Through: LRs
3. Dr. Tapan Sarkar, Belle Vue Clinic,
9, Dr. U.N. Brahmachari Street,
(formally known as Loudon Street),
Kolkata - 700017. ... Respondents
FIRST APPEAL NO. 76 OF 2019
(Against the Order dated 02.11.2018 in Complaint 120/2013 of the State Consumer Disputes
Redressal Commission West Bengal)
Dr. Tapan Sarkar
Belle Vue Clinic,
9, Dr. U.N. Brahmachari Street,
Kolkata-700017 ..... Appellant
Versus
1.Tanima Bandyapadhyay,
W/o Sri Biswanath Bandyapadhyay,
Vivekananda Road, Shanti Nagar,
P.O.- Burnpur, Asansol,
Dist.- Burdwan,
FA/2148 of 2018, FA/75 & 76 of 2019 Page 2 of 31
Presently at 232, Harisabha Math (Ambagan), Bansdroni,
Usha Park, Kolkata - 700084.
2. Dr. Yogesh Bavishi
General & Laparoscopic Surgeon
Belle Vue Clinic,
9, Dr. U.N. Brahmachari Street
(formally known as Loudon Street),
Kolkata - 700017 (since deceased)
Through: LRs
3. Belle Vue Clinic,
9, Dr U.N. Brahmachari Street
(formally known as Loudon Street),
Kolkata - 700017. ... Respondents
BEFORE:
HON'BLE AVM J. RAJENDRA, AVSM VSM (RETD.), PRESIDING
MEMBER
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
Appearance at the time of arguments:-
For Dr. Yogesh Bavishi : Mr. Rabin Majumder, Advocate (VC)
For Tanima Bandyapadhyay : In person (VC)
For Tapan Sarkar and : Mr. Srijan Nayan, Advocate
Belle Vue Clinic Mr. Vikas Nautiyal, Advocate
JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
ORDER
1. Three separate appeals FA No.2148 of 2018, FA No.76 of 2019 and FA No.75 of 2019, preferred on behalf of the Opposite Party No.1 (Dr. Yogesh Bavishi, since deceased); Opposite Party No.2 (Dr. Tapan Sarkar) and Opposite Party No.3 (Belle Vue Clinic) assail Order dated 02.11.2018 passed by the Ld. State Consumer Disputes Redressal FA/2148 of 2018, FA/75 & 76 of 2019 Page 3 of 31 Commission, West Bengal whereby CC No.120/2013 preferred on behalf of the Complainant (Tanima Bandyapadhyay) was allowed as under:-
"OP-1 Doctor is directed to pay Rs.10 lakhs(Rupees ten lakhs), OP-2 Rs.3 lakhs (Rupees three lakhs), OP-3 Rs.2 lakhs(Rupees two lakhs) to the complainant within 45 days from the date of the order, failing which the OPs shall be liable to pay to the complainant interest @ 9% per annum for the entire period of default."
2. Appellants and Respondents are hereinafter referred to as Opposite Parties and complainant as appearing in the complaint filed before the learned State Commission for sake of convenience. IA No. 10031 of 2021 (Application for substitution of Legal Heirs) & IA No.10030 of 2021 (Application for Directions)
3. An application for substitution of Legal Heirs along with application seeking directions has been filed on behalf of Legal Heirs of Dr. Yogesh Bavishi.
Perusal of record reveals that during the pendency of the proceedings I.A. No.10031 of 2021 was preferred on behalf of Kavita Bavishi wife of Dr. Yogesh Bavishi (OP-1) informing that during the pendency of appeal before this Commission Dr. Yogesh Bavishi expired on 24.05.2021 and as such she be substituted as the legal heir of the deceased. Relying upon the maxim actio personalis moritur cum persona, she submitted that the personal right of action dies with the person and as such right to sue stands extinguished. Reference was FA/2148 of 2018, FA/75 & 76 of 2019 Page 4 of 31 also made in the application to Order passed by this Commission in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital, 2001 (1) CPR 45 (NC).
4. The maxim actio personalis moritur cum persona as a general rule is applicable to action in torts and the cause of action against a party, against whom an action in tort is brought, is extinguished on his death. However, right to sue survives in case the trial has been completed and a decree/judgment has been passed against the said deceased as held by five-Member Bench of this Commission in Balbir Singh Makol (supra).
5. The principles of law regarding substitution of LRs in action in torts has been further considered by the Hon‟ble Apex Court in Kumud Lall v. Suresh Chandra Roy (Dead) through LRs and Others, 2026 SCC OnLine SC 797, wherein the issue for consideration was "Whether, upon death of the doctor during pendency of proceedings at appellate stage, the legal heirs can be impleaded and held liable for the alleged act of medical negligence of the deceased doctor? If yes, to what extent?"
In the aforesaid case, the doctor was held negligent by learned District Forum, while the complaint was dismissed by SCDRC thereby allowing the appeal preferred by the doctor. During pendency of the FA/2148 of 2018, FA/75 & 76 of 2019 Page 5 of 31 Revision Petition before NCDRC, Dr. Lall passed away, resulting in substitution of legal heirs on the prayer of the complainant and it was further observed that the legal heirs shall be liable to satisfy the decretal amount to the extent of estate left behind, on conclusion of the proceedings.
The observations and legal position as enunciated by the Hon‟ble Apex Court in paras 64 to 73 may be beneficially reproduced for reference:-
"64. What falls from the above discussion are as under- i. The common law maxim „actio personalis moritur cum persona‟ in India has been statutorily modified by various statutory instruments such as Fatal Accidents‟ Act of 1855, Legal representatives‟ Suits Act of 1855, Indian Succession Act of 1925, etc.;
ii. That the legal representative of the deceased can institute a fresh suit or be sued afresh in terms Legal Representatives Suits Act, 1855 or in terms of Section 306 of Indian Succession Act, 1925;
iii. Continuation of suit by or against the legal representative of the deceased has to be in terms of Section 306 of Indian Succession Act, 1925 (substantive law);
iv. Procedural prescription under Order XXII of CPC, concerning substitution of legal representative of the deceased party should be harmoniously construed with Section 306 of Indian Succession Act.
v. The continuation of „right to sue‟ under Order XXII Rule 2 read with Rule 4 is to be seen on the date of death. vi. Generally, all rights and liabilities to maintain a suit are carried to the legal representative under Section 306 of Indian FA/2148 of 2018, FA/75 & 76 of 2019 Page 6 of 31 Succession Act, 1925. However, when adjudicating claims under 1st exception to Section 306 of the Indian Succession Act, 1925, personal injury claims abate, while claims for or against the estate of the deceased survive.
65. Having understood the law, suppose, a doctor/opposite party in a consumer complaint involving allegations of medical negligence meets an unfortunate demise during the pendency of complaint. As such, the question of medical negligence remains undecided due to unproven allegations. Likewise, if such demise takes place at the appellate stage, the issue of medical negligence already stands adjudicated, either in favour of or against the doctor by the lower forum. There might be concurrent findings qua medical negligence or conflicting decisions or reversal at the appellate stage. Ultimately, as on the date of the doctor's demise, only two situations can arise, i.e., either an enforceable decree exists against him, or the consumer complaint against him stands dismissed. Therefore, what becomes essential at the relevant stage is to see, whether any enforceable decree against the doctor existed as on the date of the death of his doctor.
66. Before we part, a reference needs to be made to five judge bench judgment of NCDRC in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital, 2000 SCC OnLine NCDRC 16, wherein while dealing with the issue regarding payment of compensation concerning medical negligence by the alleged negligent doctor who had died during pendency of complaint, it was observed as thus-
"10. In the complaint the main allegation of negligence is against Dr. Makhani who performed the operation at Sir Ganga Ram Hospital who was the Doctor-in-charge in the said case. Before the case could reach its culmination the said Doctor, i.e. Dr. Makahni, died. Thus, the allegations could neither be rebutted nor could he have an opportunity to defend himself. In a tort of medical negligence, the cause of action is personal against the person who has been negligent in discharging his duties and that the cause of action does not survive against his estate or the FA/2148 of 2018, FA/75 & 76 of 2019 Page 7 of 31 Legal Representatives. However, in case the trial had been completed and a decree/judgment had been passed against the said deceased, that amount payable under the decree could be recovered form the estate of the deceased and the deceased and in such event the legal representatives of the deceased could be brought on record. But, that did not happen in the present case and even the question whether Dr. Makhani had been negligent in the discharge of his duties as a Surgeon could not be adjudicated upon. In this view of the matter, the maxim actio personalis moritur cum persona, as a general rule is applicable to actions in torts and, therefore, the cause of action against the party against whom an action in tort is brought is extinguished on his death. The maxim means that personal right of action dies with the person in other words death destroys the right of action. The right to sue will be extinguished. In this connection a reference be made to the following, among other, rulings.
11. In G. Jayaprakash v. The State of Andhra Pradesh, 1976 SCC OnLine AP 8 : AIR 1977 AP 20 the Hon'ble Supreme Court held as under:
"The death of the doctor extinguished his liability for damages and the suit against him stood abated. The maxim, "actio personalis meritur cum persona" applied to the case. In the 8th Edn. of Winfield on Tort at p.740. the following passage occurs:
In case of a lawful surgical operation in general negatives the liability. But in a case where actionable negligence is committed by the doctor which amounts to a personal wrong done by him, he may be liable of damages. But his death extinguishes his liability in tort and the right to sue also gets extinguished. So, I see no force in the contention that the 3rd defendant's estate was benefited by the wrong done by him."
*** *** ***
13. The Hon'ble Supreme Court while considering the question of bringing on record the legal representatives of the deceased FA/2148 of 2018, FA/75 & 76 of 2019 Page 8 of 31 who was sued for damages in a tort of defamation was considered and answered likewise in the case of Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 : AIR 1986 SC 411. That was the case where the suit for defamation had been dismissed and the plaintiff had filed an appeal. During the pendency of the appeal, the Defendant who was being sued for defamation had died. The Supreme Court held that his legal representatives could not be brought on record as the cause of action stood extinguished.
14. In paragraph 7, the Hon'ble Supreme Court has observed as under:
"Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what the appellant-plaintiff is seeking to enforce in the appeal in his right to sue for damages of defamation and as this right does not survive his death, his legal representative has no right to be brought on the record of the appeal in his place and stead if the appellant dies during the pendency of the appeal. The position, however, is different where a suit for defamation has resulted in a decree in favour of the plaintiff because in such a case the cause of action has merged decree and the decretal debt forms part of his estate and the appeal form the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff-respondent which his legal representatives is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent-plaintiff."
In light of the law discussed above, we do not subscribe to the ratio of NCDRC in Balbir Singh Makol Case (supra). Five judge bench of NCDRC therein seem to have erred on following counts- (a.) Applied common law maxim actio personalis moritur cum persona, by failing to read the statutory modification which are carried out by various enactments in India;
(b.) Misread the ratio in Melepurath Sankunni Ezhuthassan Case (supra) and failed to limit the same to facts of the case, which was solely arising from personal injury claim; FA/2148 of 2018, FA/75 & 76 of 2019 Page 9 of 31 (c.) Made the first category of exceptions under Section 306 of 1925 Act absolute and extended the bar to claims of pecuniary loss against the estate as well;
67. In the context of Rule 4 of Order XXII of CPC, one has to understand and see whether the right to sue against such alleged medically negligent doctor survives or not upon his death. As discussed earlier, the „right to sue‟ means the right to seek relief through legal proceedings. Such proceedings, in a general sense, are instituted against the opposite party/defendant(s), who possess a corresponding right to defend, as opposed to the claimant's right to prosecute. The right to defend is intrinsically linked to, and arises from the right to prosecute, and vice-versa. Therefore, for the continuation of proceedings, it is essential that both rights co-exist. Nonetheless, in view of the preceding discussion and the statutory framework provided in 1986 Act as well as 2019 Act, we conclude that upon the death of the alleged medically negligent doctor, his/her legal heirs can be impleaded and brought on record. Consequently, the extent of liability will be determined based on the pleadings and evidence presented. The question is answered accordingly.
68. The complainant had succeeded before the District Forum and was awarded compensation. However, when taken in appeal by doctor, the SCDRC allowed the same and set-aside the award. Aggrieved, the original complainant preferred revision before NCDRC, pending which, the doctor/opposite party passed away on 04.08.2009. As borne from records, „right to sue‟ if any subsists qua claims against the estate on the death of the opposite party in terms of Section 306 of Indian Succession Act, 1925 read with Order XXII Rule 2 and 4 of CPC. In order to establish the claims, the NCDRC is duty bound to adjudicate the negligence aspect, if any by the deceased doctor and resultantly adjudicate the surviving claims.
69. Before we conclude, it is necessary to state that question as to what claim can be attributed to the accretion of the deceased defendant's estate needs to be carefully analyzed by NCDRC as we have dealt only with the question of law. Of course, exhaustive list of FA/2148 of 2018, FA/75 & 76 of 2019 Page 10 of 31 these items cannot be given, since it would depend upon pleadings and proof brought before the Court. It may be relevant to note that the Claimant has the duty to first establish the negligence of the deceased doctor and the claims on the estate recoverable as per Section 306 of the 1925 Act.
70. We may add that the Impugned Order II confuses claims attributable to estate and holds that any adjudication on merits can be recoverable from the estate of the deceased doctor. Rather, the Court has to only look at claims which are maintainable as against the estate, rather than adjudicating personal claims which have elapsed with the death of the doctor.
71. We must also place on record appreciation for the invaluable assistance of the Amicus Curiae, Mr. Raghenth Basant, learned senior counsel and Mr. Varun Kapoor, learned counsel, whose erudite submissions have been of immense help to this Court. CONCLUSION
72. In light of law laid down in para 64 above, the matter is remitted to NCDRC to be adjudicated within six months from date of this order. Consequently, the impugned order dated 26.05.2010 (Impugned Order I) passed in M.A. No. 1214 of 2009 (Application for substitution) in Revision Petition No. 432 of 2006 and order dated 24.05.2018 (Impugned Order II) passed in M.A. No. 324 of 2011 (Review) in Revision Petition No. 432 of 2006 and R.A. No. 70 of 2011 (Review) in Revision Petition No. 432 of 2006 are hereby set- aside and the revision petition is restored to its original number.
73. Accordingly, the present appeals stand disposed of in above terms. Pending application(s), if any, shall stand disposed of."
6. Considering the facts and circumstances in the instant case, since the consumer complaint had been jointly and severally allowed by the learned State Commission against deceased Dr. Yogesh Bavishi (OP-1) prior to his death and executable decree is on record, we are of the FA/2148 of 2018, FA/75 & 76 of 2019 Page 11 of 31 considered view that claim for or against the estate of deceased Dr. Yogesh Bavishi (OP-1) survives and accordingly LRs of OP-1 are directed to be brought on record. The same be accordingly reflected in the memo of parties.
FA No. 2148 of 2018, FA No. 76 of 2019 and FA No.75 of 2019 Case of Complainant in Brief
7. Complainant Tanima Bandyapadhyay, a housewife who is also working as an insurance agent approached Belle Vue Clinic under the care of Dr. Tapan Sarkar (OP-2) on suffering severe pain in upper abdomen. Dr. Tapan Sakar (OP-2) after examining the complainant diagnosed the pain due to acute cholecystitis and advised urgent admission. Complainant was accordingly admitted in Nursing Home Belle Vue Clinic/OP-3 under care and supervision of OP-2, wherein necessary tests and examinations including ultrasound was conducted. The USG report dated 08.08.2012 revealed that the complainant was suffering with fatty liver with cholelithiasis.
8. It is further the case of complainant that OP-2 after issuing the test reports advised for immediate operation on account of stones in gall bladder. The operation was conducted by Dr. Yogesh Bavishi, Laparoscopic Surgeon (OP-1) with the help of Dr. Tapan Sarkar on FA/2148 of 2018, FA/75 & 76 of 2019 Page 12 of 31 09.08.2012. As per the discharge summary, the treatment provided to the complainant was noticed as under:-
"TREATMENT DONE IN THE CLINIC LAPAROSCOPIC CHOLECYSTECTOMY DONE UNDER GENERAL ANAESTHESIA ON 09.08.2012 BY DR. Y BHAVISHI. LAPAROSCOPIC FUNDUS FIRST CHOLECYSTECTOMY FOR DISTENTED GALL BLADDER WITH EMPYEMA. HARTMAN'S - CYSTIC DUCT OPENED - CYSTIC DUCT MILKED- ONLY PUS SEEN - FRIABLE TISSUE, IRRAGATION OF STUMP DONE LOOP APPLIED INCIDENTALLY STONE NOT SEEN IN GB. POSSIBILITY OF STONE PASSED OF FROM CBD.
PATIENT WAS SEEN BY DR. DINESH HAWALIA (CONSULTANT DERMATOLOGIST)"
9. After the surgery was undertaken, complainant was referred for MRCP on 11.08.2012 and also the gall bladder was forwarded for biopsy/pathology report on 10.08.2012. An amount of Rs.1,41,034/- is claimed to have been paid by the complainant vide final bill dated 15.08.2012 to the opposite parties.
10. Since the complainant complained of facing severe pain in the abdomen despite surgery, OP-1 after examination advised some medicines with an assurance that the pain would subside. However, since the complainant did not find any respite in pain, she consulted at Apollo Hospital, Chennai on 17.11.2012 under care of Dr. Ravi R. (Gastro) who advised her CT Scan of the whole abdomen with contrast. The test report thereon revealed "thick walled enhancing structure with calculi resembling gall bladder in the gall bladder fossa probably --- FA/2148 of 2018, FA/75 & 76 of 2019 Page 13 of 31 suggestive of remnant of gall bladder with calculi cholecystectomy clips are seen in the gall bladder fossa."
11. It is further the case of complainant that USG report dated 21.11.2012 also revealed as under:-
"ULTRASOUND SCREENING WHOLE ABDOMEN Provisional Diagnosis/Clinical Data :
NIL Report:
Liver is enlarged and shows fatty changes. Intra and extra hepatic biliary passages are not dilated. Gall bladder is contracted and shows calculus measuring 1.2 cms within the lumen.
Traced of hepatic free fluid seen.
Pancreas appears normal Spleen measures 7.1 cms and shows normal echotexture. Visualised aorta and VC are normal.
No evidence of ascites or lymphadenopathy. Right kidney measures 8.7 cms. Left kidney measures 9.6 cms. Both kidneys show normal echopattern with no evidence of calculi or calyceal dilatation.
Uterus is not visualised consistent with history of surgery. Both ovaries are not clearly visualised Bladder is normal in contour."
12. After getting the afore-said test conducted at Apollo Hospital, complainant again visited Dr. Yogesh Bavishi (OP-1) who allegedly issued prescription dated 24.11.2012 mentioning "no stone seen in removed GB report of USG and MRCP clear." The exact note in the prescription dated 24.11.2012 may be reproduced for reference:-
"24.11.12 c/o Pain abdomen Dyspepsia H/o Lap. cholecystectomy on 9/8/12.
O.T. Note: In discharge certificate: ? not available FA/2148 of 2018, FA/75 & 76 of 2019 Page 14 of 31 Findings: Acutely inflamed Gall Bladder.
Hilar area obliterated.
Fundus first cholecystectomy was done.
Cystic duct was opened near Hartmann‟s & migration of stump with cystic duct Loop applied at cystic duct.
No stone seen in removed GB."
13. Complainant, thereafter, visited Fortis Hospital at Kolkata on 01.12.2012 and consulted Dr. Sanjay Bose, whereupon USG was performed in the said Hospital on 04.12.2012.
14. The USG report dated 04.12.2012 noticed as under:-
"GALL BLADDER: History of Cholecystectomy. A small cystic structure with thickened walls (3.9 mm) is noted in gall bladder fossa. A large calculus of 12.3 m.m. is noted within it. No collection is seen near it.
IMPRESSION:
Hepatomegaly with fatty changes in liver. Cystic structure with calculus within it-->gall bladder remnant (following partial cholecystectomy) / ? dilated cystic duct stump with stone in it."
15. Complainant after obtaining all the investigation reports again visited Apollo Hospital, Chennai wherein she was admitted on 11.12.2012 and underwent complete laparoscopic cholecystectomy on 12.12.2012. The detailed findings recorded in the discharge summary of Apollo Hospital may be further reproduced for reference:-
"Findings:
1. Omental adhesions to the epigastric port, left hypochondrium and lower mid line incision.
2. Inflamed remnant gall bladder with flimsy adhesion to duodenum.
3. Fatty liver.
4. Two stones are found each one 1 to 0.5cm."FA/2148 of 2018, FA/75 & 76 of 2019 Page 15 of 31
"Working ports 5 mm in the transtubercular plane along the anterior axillary line introduced, adhesiolysis done using Harmonic Scalpel. Standard ports over epigastrium (10 mm) right anterior axillary and midclavicular line introduced under vision. Remnant gall bladder lifted by toothed gasper. Calot's triangle dissection done using Hamonic scalpel and releasing adhesion to the Calot's triangle, cystic duct and artery dissected and skeletonized clipped twice and divided. Gall bladder dissected from its bed using Harmonic scalpel. After ensuring good hemostasis, Surgicel placed in the gall bladder fossa and drain 14 Fr placed through right anterior axillary port. Specimen extracted through 10 mm epigastric port, umbilical port, port closed using No 1 Vicryl and the skin approximately by 3-0 Monocryl suture."
16. The removed gall stones were forwarded by Apollo Hospital for histopathology/biopsy on 17.12.2012 and the report observed as under:-
"Macroscopic Description:
BOTTLE MARKED REMNANT GALL BLADDER: Two fragments of gall bladder measuring 1.5 cms and 5 cms in length. Serosa is haemorrhagic. Mucosa is tan in colour. - 3 bits. (Dr SJ) Microscopic Description:
Sections show strips of wall of gall bladder with focally polypoidal mucosa. The lamina propria and wall show infiltration by lymphocytes, plasma cells and eosinophils. There are thickened blood vessels and hypertrophied nerve bundles in the subserosa. Surrounding fatty tissue shows a lymph node showing nonspecific reactive changes. There are fibrovascular adipose tissue extending from the serosal aspect in the surrounding adipose tissue. Many pulsion diverticulae are seen.
IMPRESSION:
REMNANT GALL BLADDER SHOWING CHRONIC CHOLECYSTITIS WITH PERICHOLEIC FIBROINFLAMMATORY ADHESIONS.
INCLUDED LYMPH NODE SHOWS NONSPECIFIC REACTIVE CHANGES."
17. The grievance of the complainant is that subsequent surgery undertaken by the complainant at Apollo Hospital, Chennai supported by medical reports indicates that OP-1 failed to remove the gall bladder with FA/2148 of 2018, FA/75 & 76 of 2019 Page 16 of 31 stones during the laparoscopic cholecystectomy and issued reports to the contrary. Further, the opposite parties are claimed to be negligent in providing the necessary medical treatment to the complainant. Complaint was accordingly preferred by the complainant before the learned State Commission claiming compensation of Rs.30,00,000/-, which was allowed as noticed in preceding paragraphs. Stand taken on behalf of OP-1
18. Dr. Yogesh Bavishi (OP-1 since deceased) took a stand before the learned State Commission that he is a General Surgeon (MS General Surgery) and had operated about 2500 cases of gall bladder surgery. He further explained that „laparoscopic cholecystectomy‟ involves removal of stones from gall bladder with minimal surgical intervention by use of laparoscope which is generally inserted from the abdomen of the patient. Further, Lap-cholly is performed with the help of a wire guided camera along with laparoscope and on removal of gall bladder a clipping is done in the place where the gall bladder is connected to the bile duct. On merits, OP-1 pointed out that on the basis of review of test reports of the complainant, it appeared that the patient had already undertaken necessary test of ultrasonography which indicated multiple stones in the gall bladder by observing "lumen is hugely distended calculi seen inside". In view of said report, complainant was operated in OP-3 FA/2148 of 2018, FA/75 & 76 of 2019 Page 17 of 31 Nursing Home on 09.08.2012 after administering general anesthesia. Since the neck of gall bladder was hugely inflamed, it was medically impossible to remove the gall bladder without causing injury to the common bile duct. Therefore, OP decided to conduct the 'Fundus First Cholecystectomy'. The fundus part of the gall bladder was removed and a part of the gall bladder was kept intact considering the inflamed condition and formation of pus in the said region. After the surgery, patient along with her relatives were explained in detail regarding inflammation and formation of pus in the neck of gall bladder and the fact that remaining part of gall bladder can be removed after three months after treating the infection with necessary medicines. They were further informed that no stone could be found during the surgery and it was presumed that stones have passed through the common bile duct and may have passed through abdomen. It was clarified that in view of inflammation, there was every chance of bile duct injury in case complete removal of gall bladder was attempted. Complainant is stated to have been subsequently discharged in a stable condition on 16.08.2012. With reference to MRCP done after the surgery, OP- 1stated that the same showed that gall bladder is not visualised with normal intra and extra hepatic biliary channels. FA/2148 of 2018, FA/75 & 76 of 2019 Page 18 of 31
19. OP-1 further submitted that complainant had again visited him on 24.11.2012 but did not inform that she had contacted another hospital at Chennai for further treatment. However, the complainant and his relatives were explained regarding the surgery which was undertaken. Further, since the complainant did not complain of any pain and other symptoms were within acceptable limits, the prescription had been given without the complainant disclosing the consultations/treatment undertaken by her at other hospitals. OP-1 emphasized that treatment was provided to the complainant as per medical norms, without any negligence.
20. On behalf of OP-1, it has been pointed out by learned counsel that apart from leading evidence of OP-1 by way of affidavit, expert evidence of Dr. Surendra Ugale and Dr. Ramesh Agarwalla was filed on affidavits before learned State Commission. Copies of the same have been filed on record.
21. Dr. Surendra Ugale, a General and Laparoscopic Surgeon with MS General Surgery from Mumbai, stated that after evaluating the treatment papers, in his opinion, inflammation was caused due to presence of gall stones as evident from the operative findings of thick walled gall bladder empyema, friable tissue, presence of pus. Further, in afore-said background, laparoscopic surgeons resort to a "Fundus First FA/2148 of 2018, FA/75 & 76 of 2019 Page 19 of 31 Cholecystectomy" for gall bladder removal, as the neck of gall bladder and cystic duct-common bile duct area is greatly inflamed and anatomy is unclear. Further, since this area exhibits the greatest variation in anatomy, inadvertent injury to the CBD or hepatic artery is apprehended. He further testified that Dr. Yogesh Bavishi (OP-1) adopted appropriate and safe procedure in the particular situation respecting the safety of the patient. He further testified that subsequently once the inflammation subsists, it is easier and safer to remove the remnant stones by laparoscopy as performed in Chennai. The patient, as such, required second session to give her complete cure from the disease without any permanent damage to other organs.
22. Dr. Ramesh Aggarwalla (MBBS, MS General Surgery, FRCS) examined on behalf of OP-1 further testified on affidavit that the operation had been undertaken by Dr. Yogesh Bavishi after performing the necessary tests and the medical treatment had been provided to the best possible extent in the given situation.
Stand taken on behalf of OP-2
23. Dr. Tapan Sarkar (OP-2) submitted that complainant had been referred to Dr. Yogesh Bavishi, Consultant Surgeon for his opinion after complainant was admitted in the clinic on 07.08.2012. Further, since the complainant agreed for „Laparoscopic Cholecystectomy‟, surgery was FA/2148 of 2018, FA/75 & 76 of 2019 Page 20 of 31 undertaken after duly obtaining signed consent form for elective laparoscopic surgery. Complainant is also stated to have been apprised of the pros and cons of the surgery. An MRCP was conducted to see the common bile duct and no stone was found after the removal of gall bladder. Further, the biopsy of the operated portion was sent for examination. He further stated that complainant was discharged on 16.08.2012 and the bill for Rs.1,41,034/- was disputed. He further averred that prescription of Dr. Ravi R. (Gastro), whom the complainant subsequently consulted for undertaking CT Scan had not been filed along with the complaint. It was emphasized that except for reference of the complainant to Dr. Yogesh Bavishi (OP-1), he had no role in the surgical treatment. OP-2 further urged that complaint was not maintainable on account of non-joining of Dr. Sanjay Bose and other doctors from Apollo Hospital and Fortis Hospital, whom the complainant consulted for further treatment. It was pointed out that no allegations had been made regarding any deficiency in treatment rendered by OP-2 in any manner and complainant was duly referred to a competent and qualified surgeon (OP-1).
Stand taken on behalf of OP-3 FA/2148 of 2018, FA/75 & 76 of 2019 Page 21 of 31
24. Belle Vue Clinic (OP-3) denied any shortcoming or deficiency in service on its part and led evidence of Shri Pradip Tondon, Chief Executive Officer by way of affidavit.
Contentions raised on behalf of OPs
25. Learned counsel for OPs/appellants have reiterated the factual position as per the stand taken in the written version before the learned State Commission and denied any medical negligence in administering treatment to the complainant. Reliance has also been placed upon the principles laid down in Jacob Mathew v. State of Punjab, (2005) 6 SCC
1. It was further contended that learned State Commission vide brief reasoning overlooked the expert evidence on record whereby no negligence was established in undertaking the surgery by OP-1 who was a competent Laparoscopic Surgeon. Further, the learned State Commission ignored the fact that Fundus First Cholecystectomy is duly recognized to be undertaken in case of inflammation, in the interest of patient.
Contentions raised on behalf of the complainant
26. Per contra Learned counsel for complainant reiterates the factual position and submits that despite laparoscopic cholecystectomy done on 09.08.2012, complainant faced severe pain in abdomen and left with no option, complainant consulted Apollo Hospital at Chennai on 17.11.2012. FA/2148 of 2018, FA/75 & 76 of 2019 Page 22 of 31 Reliance was further placed upon CT Scan report of whole abdomen dated 17.11.2012 conducted at Apollo Hospital which was suggestive of remnant of gall bladder with calculi. The prescription given by Dr. Yogesh Bavishi on 24.11.2012 is further referred, which mentioned "no stone seen in removed GB report of USG and MRCP clear". Also, reliance is placed upon USG performed in Fortis Hospital on 04.12.2012 whereby the USG report revealed "history of Cholecystectomy, a small cystic structure with thickened walls (3.9 mm) is noted in the gall bladder fossa. A large calculus of 12.3 mm is noted within it. No collection is seen near it."
Complainant contends that in the aforesaid background, based upon investigation reports, the surgery had to be again conducted on 12.12.2012 at Apollo Hospital, Chennai for completion laparoscopic cholecystectomy and adhesiolysis. It is further urged that in MRCP report dated 11.08.2012, it was wrongly mentioned that gall bladder is not visualized (post operative).
Analysis and Findings
27. We have given considered thought to the contentions raised and perused the record carefully.
FA/2148 of 2018, FA/75 & 76 of 2019 Page 23 of 31
At the outset, we may notice that the learned State Commission by a brief Order, after reproducing the contentions of the learned counsels held as under:-
"Heard both the sides, considered their respective submissions and perused the materials on record.
Noting in the "O.T. Note" dated 9.8.2012 (incorrectly noted as 9.9.2012) of OP3-Clinic by OP1-Doctor vis-à-vis observations in "CT Scan Report of Apollo Hospitals, Chennai dated 17.11.2012 in the "USG whole abdomen of Fortis Hospitals, Kolkata" and in the „discharge summary-UHIB 2467449‟ of Apollo Hospitals, Chennai as referred to hereinabove, clearly indicate the submission of Ld. Advocate for the Complainant has more force than the submission of Ld. Advocate for the OPs.
It is well settled that non-joinder of parties does not lead to dismissal of the Complaint Case.
The foregoing discussion lead to the Commission that the instant Complaint Case deserves to be allowed and is allowed accordingly.
OP1-Doctor is directed to pay Rs.10 Lakhs (Rupees ten lakhs), OP2-Doctor Rs. 3 Lakhs (Rupees three lakhs) and OP3-Clinic Rs. 2 Lakhs (Rupees two lakhs) within 45 days from the date of Order, failing which the OPs shall be liable to pay to the complainant @ 9% per annum for the entire period of default."
28. On the face of record, learned State Commission failed to refer to the contentions raised on behalf of OP-1 and 2 and awarded the compensation merely by observing that the OT note dated 09.08.2012 (incorrectly noted as 09.09.2012) by OP-1 vis-à-vis the observations of CT scan report of Apollo Hospital, Chennai dated 17.11.2012 indicate that the submissions of learned Advocate for complainant had more force. The Order completely ignores the evidence of OP-1, whereby it was clarified as to the circumstances under which the 'Fundus First FA/2148 of 2018, FA/75 & 76 of 2019 Page 24 of 31 Cholecystectomy' was undertaken along with the expert evidence of Dr. Surendra Ugale and Dr. Ramesh Agarwalla, led on behalf of OP-1.
In the afore-said background, since the Order is bereft of any detailed reasoning, we undertake to analyse evidence led by respective parties on record.
29. The legal principle to determine the issue of negligence by a professional doctor has been settled in series of decisions having been propounded in the decision of Queen‟s Bench in leading case of Bolam v. Friern Hospital Management Committee, 1957 (2) ALL ER 118 QBD. 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.
The said principle of law is followed by the Indian Courts and was extensively referred in Jacob Mathew v. State of Punjab (supra) and is thereafter a touchstone to test the pleas of medical negligence. Observations of Hon‟ble Apex Court in S. K. Jhunjhunwala v. Dhanwanti Kaur and Another, (2019) 2 SCC 282 in para 22 and 23 may be beneficially reproduced:-
"22. It was held in Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] that a physician would not assure the patient of full recovery in every case. A surgeon FA/2148 of 2018, FA/75 & 76 of 2019 Page 25 of 31 cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of 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 not possess.
23. It was further observed in Jacob Mathew case [Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 : 2005 SCC (Cri) 1369] that the fact that a defendant charged with negligence who acted in accord with the general and approved practice is enough to clear him of the charge. It was held that the standard of care, when 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. It was held that 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 practises. His Lordship quoted with approval the subtle observations of Lord Denning made in Hucks v. Cole [Hucks v. Cole, (1968) 118 New LJ 469], namely, "a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field".
(emphasis supplied)"
FA/2148 of 2018, FA/75 & 76 of 2019 Page 26 of 31
30. The issue for consideration in the present case is, if OP-1 was negligent in adopting "Fundus First Cholecystectomy" during surgery which led to subsequent surgery being undertaken by the complainant for completion laparoscopic cholecystectomy and adhesiolysis at Apollo Hospital, Chennai on 12.12.2012 for removal of remaining part of the gall bladder with calculi.
31. We may notice that laparoscopic cholecystectomy involves removal of stones from gall bladder with minimal surgical intervention undertaken by use of laparoscope which is inserted from the abdomen of the patient. The surgery was conducted by OP-1 on 09.08.2012 after the complainant had undergone necessary tests like ultrasonography, wherein it was observed that "lumen is hugely distending, calculi seen inside". Admittedly, Dr. Yogesh Bavishi (OP-1, since deceased) was a professionally trained Laparoscopic Surgeon having undertaken about 2500 surgeries and his skills or competence to conduct the surgery cannot be doubted. The stand of Dr. Yogesh Bavishi (OP-1) as supported by the OT notes reflects that OP-1 decided to conduct the "Fundus First Cholecystectomy", wherein the fundus part of gall bladder was removed and a part of the gall bladder was kept intact considering the inflamed condition and the formation of the pus in the said region. It is further the case of OP-1 that no stone could be found during the FA/2148 of 2018, FA/75 & 76 of 2019 Page 27 of 31 surgery and it was presumed that stones may have passed through the common bile duct through abdomen. The complete removal of stones is stated to have not been attempted to avoid any chance of bile duct injury in view of inflammation. The MRCP conducted after the surgery further supported the fact that the presence of stones could not be detected in the gall bladder. The said explanation of Dr. Yogesh Bavishi (OP-1) is also supported by expert evidence of Dr. Surendra Ugale, General & Laparoscopic Surgeon and Dr. Ramesh Aggarwalla, MS, General Surgery, FRCS.
32. The evidence of experts which has not been refuted on record by leading of any evidence by the complainant, clearly establishes that the laparoscopic surgeons would resort to a "Fundus First Cholecystectomy"
for gall bladder removal, when the neck of gall bladder and cystic duct-
common bile duct area is severally inflamed and anatomy is unclear.
The same is adopted to avoid any inadvertent injury to the CBD or hepatic artery. Once the inflammation subsides, it is safe and easier to remove the remnant stones by laparoscopy which appears to have been undertaken by the complainant subsequently at Apollo Hospital, Chennai.
33. Merely because the remnants of gall bladder were subsequently seen with calculi in the USG undertaken by the complainant, cannot lead FA/2148 of 2018, FA/75 & 76 of 2019 Page 28 of 31 to an inference that a negligent approach had been taken by OP-1 in conducting the laparoscopic cholecystectomy. The explanation rendered by OP-1 along with expert evidence clearly reflects the reasons for not attempting further removal of gall bladder in patient interest. In the aforesaid background, no negligence can be attributed against OPs.
34. We find no reasons on record to discard the evidence and explanation offered by OP-1 which has been overlooked by the learned State Commission by simply observing that the contentions raised on behalf of Advocate for complainant were more forceful, in the light of subsequent reports and surgery undertaken by the complainant at Apollo Hospital, Chennai. Admittedly, neither the concerned doctors from Apollo Hospital, Chennai were summoned for evidence by complainant to prove negligence of OP-1 in conducting surgery nor any evidence of expert was led on record by the complainant to refute the explanation offered by OP-1 with opinion of Dr. Surendra Ugale and Dr. Ramesh Aggarwalla, which appears to be rational and acceptable. Mere CT Scan Report conducted subsequently at Apollo Hospital, Chennai after four months of earlier surgery undertaken by the complainant which suggested remnant gall bladder with calculi and cholecystectomy clips in the gall bladder fossa, does not prove negligence by Dr. Yogesh Bavishi (OP-1) in adopting "Fundus First Cholecystectomy" in view of clear-cut FA/2148 of 2018, FA/75 & 76 of 2019 Page 29 of 31 observations in OT note dated 09.08.2012. The surgical process for removal of entire calculi was not undertaken in view of inflammation and to avoid injury to common bile duct.
It is further apparent that the complainant in her subsequent visit on 24.11.2012 did not apprise OP-1 of subsequent developments and procedural tests undertaken by her at Apollo Hospital, Chennai for oblique reasons. On the face of record, the prescription dated 24.11.2012 does not record regarding subsequent consultations undertaken by the complainant along with the treatment advised. Further, the prescription clearly refers to laparoscopic cholecystectomy undertaken by the complainant on 09.08.2012 with the observations that OT Note in discharge certificate is not available. The said prescription refers to the earlier findings and post-operation report of USG/MRCP, whereby no stone was seen in the removed gall bladder. Much significance cannot be attributed to prescription given by OP-1 on 24.11.2012 in view of factual suppression by the complainant regarding subsequent consultations/treatment undertaken by her.
35. The surgery conducted by OP-1 thereby adopting the "Fundus First Cholecystectomy" cannot lead to an inference that OP-1 did not exercise the skill with reasonable competence, merely because the complete gall bladder with calculi could not be removed. A surgeon FA/2148 of 2018, FA/75 & 76 of 2019 Page 30 of 31 cannot guarantee a 100% success rate of the surgery but is invariably bound to take appropriate steps during surgery which are necessary in patient interest.
36. For the foregoing reasons, we are of the considered view that learned State Commission erred in holding OP-1 negligent in conduct of surgery and also wrongly held OP-2 & 3 jointly and severally liable for deficiency in service.
The appeals preferred by the OPs are accordingly allowed and impugned Order passed by the learned State Commission is set aside. Pending applications, if any, also stand disposed of. No order as to costs. A copy of this Order be provided to the concerned parties, by the Registry.
Sd/-
................................................ (AVM J. RAJENDRA, AVSM VSM (RETD.) PRESIDING MEMBER Sd/-
........................................... (ANOOP KUMAR MENDIRATTA, J) MEMBER ar/sd/B-4/reserved matter FA/2148 of 2018, FA/75 & 76 of 2019 Page 31 of 31