National Consumer Disputes Redressal
Dr. Narendra Singh Gill vs Amri Devi (Dead) & 5 Ors., Through Lrs on 11 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2592 OF 2013 (Against the Order dated 16/01/2013 in Appeal No. 1253/2010 of the State Commission Rajasthan) 1. DR. NARENDRA SINGH GILL NEAR DALMIYA GIRLS SCHOOL, GALI NO-2 STATION ROAD, CHIRAWA, TEHSIL CHIRAWA JHUNJHUNU RAJASTHAN ...........Petitioner(s) Versus 1. AMRI DEVI (DEAD) & 5 ORS., THROUGH LRS W/O SH. SULTAN SINGH, R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 2. SH.SULTAN SINGH H/O SMT.AMRI DEVI, R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 3. SATYAVEER SINGH, S/O SULTAN SINGH R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 4. SHER SINGH, S/O SULTAN SINGH, R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 5. OM PRAKASH, S/O SULTAN SINGH, R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 6. BAHADUR SINGH, S/O SULTAN SINGH, R/O MAINANA , TEHSIL BUHANA JHUNJHUNU RAJASTHAN 7. SMT. SANTRA D/o. SH. SULTAN SINGH, R/o. MAINANA, TEHSIL BUHANA, JHUNJHUNU RAJASTHAN 8. SMT. SUSHILA D/O. SH. SULTAN SINGH, R/o. MAINANA, TEHSIL BUHANA, JHUNJHUNU RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MR. K.G. SHARMA, ADVOCATE FOR THE RESPONDENT : MR. HEMANG CHAUDHARY, ADVOCATE
MR. VINEET CHOUDHARY, ADVOCATE
Dated : 11 December 2023 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 16.01.2013 of the State Consumer Disputes Redressal Commission, Rajasthan, (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No.1253/2010 in which order dated 24.05.2010, District Consumer Disputes Redressal Forum, Jhunjhunu, Rajasthan (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 287/2008 was challenged, inter alia praying to set aside the order passed by the State Commission.
2. While the Revision Petitioner (hereinafter also referred to as OP) was Respondent and the Respondent (Through LRs) (hereinafter also referred to as complainant) was Appellant in the said FA/1253/2010 before the State Commission, the Revision Petitioner was OP and Respondent was Complainant before the District Forum in the CC no. 287/2008.
3. Notice was issued to the Respondent. Parties filed Written Arguments/Synopsis on 01.07.2019 (OP/Petitioner) and 22.09.2023 (Complainant/Respondent) respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
On 19.03.2008, the complainant visited the OP's hospital with abdominal pain. After advised tests, the OP diagnosed her with abdominal stones, necessitating surgery. The OP admitted her on 19.05.2008 and performed an abdominal operation at 10 PM on the same day, charging a fee. Allegedly, the OP's negligent operation resulted in severing a vein in the complainant's abdomen. Despite the OP's assurances of recovery, her condition deteriorated. Upon revisiting the OP on 22.05.2010, another operation worsened her condition. Consequently, the OP referred her to SMS Hospital, Jaipur, on 26.05.2008. Examination there revealed a severed vein, which was surgically corrected on 31.05.2008. She remained hospitalized at SMS Hospital from 26.05.2008 to 13.06.2008, incurring expenses of Rs. 2 Lakh due to alleged negligence by the OP. As a result, she sought compensation and expenses. However, the District Forum dismissed the complaint, citing the complainant's failure to substantiate the alleged negligence by the OP. The District Forum emphasized the absence of medical evidence or professional opinions supporting the claim of negligence by the OP. Following this, the complainant filed an appeal (No. 1253/2010) before the State Commission, Rajasthan, Jaipur. Unfortunately, during the pendency of the appeal, the complainant passed away. Her legal representatives were substituted to continue the appeal before the State Commission. Contrary to the District Forum's decision, the State Commission, reversed the order, finding the OP liable for negligence in the treatment of the patient.
5. Vide Order dated 24.05.2010, in the CC no. 287/2008 the District Forum has dismissed the complaint. Aggrieved by the said Order dated 24.05.2010 of District Forum, Respondent/Complainant appealed in State Commission and the State Commission vide order dated 16.01.2013 in FA No.1253/2010 has allowed the appeal; allowed the complaint and set aside the order passed by the District Forum.
6. Petitioner has challenged the said Order dated 16.01.2023 of the State Commission mainly on following grounds:
The State Commission acted improperly by substituting the legal representatives following the demise of the sole complainant during the pendency of an appeal aimed at seeking damages for personal injury. The appeal became abated upon the lone complainant's death, rendering the substitution of LRs legally unsound. The provisions, including Order XXII Rules 1, 3, and 11 of the Civil Procedure Code, discuss the impact of a party's demise on the continuation of legal proceedings. They state that if the right to sue doesn't survive, the case shall abate. Order XXII Rule 3 allows for substitution of the legal representatives of a deceased sole plaintiff only if the right to sue survives. Rule 11 extends these rules to appeals. Section 306 of the Indian Succession Act, 1925, defines which causes of action survive or abate, specifying that the right to sue for damages for personal injuries not causing death shall abate. It's important to note that the complaint doesn't mention any loss to the complainant's estate. The demand for damages solely pertains to personal injuries. The State Commission erred in allowing the substitution of LRs as it didn't consider that the right to sue for personal injuries didn't survive after the complainant's death. There was no mention in the complaint about loss to the complainant's estate, focusing solely on personal injury damages. Numerous legal precedents exist where the Supreme Court of India has elucidated the legal stance on the persistence of claims subsequent to the demise of a party.
The State Commission's presumption of medical negligence against the petitioner/OP solely due to the Common Bile Duct injury during gall bladder surgery is unfounded. This type of injury is a known complication of such surgeries and should not automatically indicate negligence on the part of the surgeon. The State Commission mistakenly assumed that the OP did not attempt to repair the injury or inform the patient about it, which is inaccurate. In response to the patient's post-surgery abdominal pain complaint, the OP conducted an exploratory laparotomy and successfully repaired the injury. However, subsequent complications arising from bile leakage resulted in abdominal distension. Consequently, after discussions and with the consent of the patient's attendants, a decision was made to refer the patient to Swai Man Singh Hospital in Jaipur, equipped with tertiary care facilities. The State Commission's decision appeared to be made mechanically, disregarding the factual complexities of the case. It failed to consider whether a known complication in such surgeries constitutes negligence on the part of a well-qualified and experienced surgeon. Therefore, the State Commission's judgment incorrectly attributed medical negligence to the OP without a comprehensive assessment of whether a recognized complication within the scope of such surgeries implicates the competence of an experienced surgeon.
There's a lack of substantial evidence, such as medical literature or expert opinions, supporting the claim of medical negligence. This absence of documented expert opinion weakens the allegations of negligence in this case. The OP, as a medical professional, conducted the gall bladder surgery based on a proper diagnosis derived from clinical examinations and ultrasound reports. Standard medical protocols were followed throughout the process; the patient and their attendants were thoroughly informed about the treatment options, including the surgical procedure, its potential outcomes, complications, and prognosis, and proper consent was obtained. The OP exercised the necessary skills and care before, during, and after the surgery. The known complications associated with the procedure were duly considered and explained to the patient and their attendants. The surgical team, led by the OP as the surgeon, conducted the surgery accurately after conducting pre-anesthesia checks and administering general anesthesia. The surgery was successful in removing the gall bladder containing stones. The State Commission made wrong conclusion of medical negligence based on assumptions made from the mention of an 'abdominal drainage tube in SITU' in the MRCP (Magnetic Resonance Cholangiopancreatography) report of SMS Hospital. This report does not explicitly attribute negligence to the OP in any stage of the treatment.
The complainant has failed to provide any supporting evidence for the accusations of medical negligence and the expenses incurred during hospitalization at SMS Hospital, which is a government hospital. The State Commission disregarded the OP's arguments concerning the surgery, the inherent complications associated with such procedures, and the OP's coverage under a Professional Indemnity Policy issued by M/s The New India Assurance Co. Ltd., Jaipur. The order was passed without proper consideration of these crucial factors. The State Commission granted compensation of Rs. 1 Lakh to the substituted legal representatives of the complainant based on assumptions and presumptions, without any credible evidence against the OP that would make him liable for medical negligence. This decision contradicts established legal principles, as highlighted by numerous cases decided by the Hon'ble Supreme Court and this Commission, emphasizing the necessity of credible evidence in cases involving allegations of medical negligence.
7. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
The counsel for OP/Petitioner argued that the complainant/Patient/Respondent, Smt. Amri Devi, first visited the OP's Jaipur Hospital & Research Centre on 19.03.2008 with abdominal pain. After clinical examination and Ultrasonography (USG) of the abdomen, stones in the Gallbladder were detected. Conservative management with prescribed medicines was advised. The patient returned on 19.05.2008 with continued abdominal pain. After diagnosis, surgery (Cholecystectomy - removal of Gallbladder) was recommended. The procedure was discussed with the patient, and upon consent, she was admitted to the hospital. Pre-anesthesia checkup (PAC) showed no adverse findings. The surgery, performed by the OP with Dr. Paul as the anesthetist, followed standard protocol, using requisite skills, and was deemed successful. Post-surgery, the patient complained of pain and developed abdominal distension. An exploratory laparotomy on 25.05.2008 revealed a small tear on the Common Bile Duct, a known complication associated with cholecystectomy. The OP promptly repaired the injury on the Common Bile Duct. Subsequently, on 26.05.2008, the patient was referred to a higher center, Swai Man Singh Hospital, Jaipur, for tertiary care facilities due to apparent bile leakage. At the time of referral and admission to the higher center, the patient had normal parameters. In Swai Man Singh Hospital, the patient was initially treated conservatively. On 31.05.2008, drainage of bilioma (collection drain) was performed, resulting in relief for the patient.
The counsel further argued that the State Commission erred in its order dated 16.01.2013 by substituting the legal representatives (LRs) after the lone complainant's death during the appeal's pendency; the appeal became abated immediately upon the complainant's death and that allowing the substitution was a legal error. The counsel cites legal provisions from the Civil Procedure Code (CPC) and the Indian Succession Act, 1925, focusing on Order XXII of the CPC, which deals with death, marriage, and insolvency of parties in legal proceedings. They emphasize Order XXII, Rule 1, stating that the death of a plaintiff or defendant doesn't cause the suit to abate if the right to sue survives. However, when the right to sue doesn't survive, the suit abates. Referring to Order XXII, Rule 3, the counsel highlights that when a sole plaintiff dies, and the right to sue doesn't survive, the court, upon an application, should not proceed with the suit. They further emphasize Rule 11 of Order XXII, which extends these rules to appeals, stating that the term "plaintiff" includes "appellant," and "defendant" includes "respondent." Additionally, they reference Section 306 of the Indian Succession Act, 1925, which outlines causes of action that survive or abate after a party's death. They argue that the right to sue for personal injuries (as in the present case) not causing the party's death should abate. The legal representatives should not have been substituted after the complainant's death, as the right to sue for personal injuries did not survive; allowing the substitution was in contravention of established legal principles articulated in various judgments by the Hon'ble Supreme Court of India.
The counsel further contends that the State Commission has wrongly presumed medical negligence on their part due to an injury on the Common Bile Duct during a cholecystectomy, which is a known complication of gall bladder surgery. They argue that this complication cannot be equated with negligence and refer to medical literature supporting this claim. Additionally, the counsel asserts that OP promptly attended to the injury during surgery and performed reparative measures, such as an exploratory laparotomy and subsequent repair. Due to complications and the patient's condition, they made a decision to refer the patient to a higher medical center equipped with tertiary care facilities after discussions and with the consent of the patient's attendants. The OP, a qualified and experienced General Surgeon (MS), followed standard medical protocols and obtained consent before the surgery and subsequent referral. The counsel highlights that known complications are inherent risks associated with any medical procedure and should not be deemed as negligence. They argue that the State Commission erred in not involving The New India Assurance Co. Ltd., Jaipur, with whom the OP was insured. Furthermore, the compensation awarded and the costs imposed by the State Commission, lack proper justification.
The counsel for the complainant/respondent contended that the complainant sought medical attention for abdominal pain, and subsequent tests by the OP diagnosed abdominal stones requiring surgery. The operation was conducted on 19.05.2008, and the complainant was billed for the procedure. The counsel asserts that during the initial operation, the OP negligently severed a vein, leading to a deterioration in the complainant's health. Despite complaints, the OP provided false assurances. Subsequently, another operation was performed on 22.05.2008, worsening the complainant's condition. The OP referred the complainant to Sawai Man Singh Hospital, Jaipur, where investigations revealed negligence in the initial surgery. The hospital treated the complainant from 26.05.2008 to 13.06.2008, incurring expenses of Rs. 2,00,000/- due to the alleged negligence of the OP. The complainant purportedly suffered physical, mental, and financial distress due to the alleged negligence, incurring significant medical costs, dependence on expensive medications, and enduring persistent health issues until her demise. The complainant felt compelled to file complaints against the OP, perceiving their actions as unlawful and causing severe pain and trauma.
The counsel emphasizes that the OP acknowledged causing injury to the common bile duct, recognizing it as a known complication of gall bladder surgery in both the written statement and the court's order dated 16.01.2013. The absence of documentation regarding surgery complications in the discharge note, coupled with the failure to inform the complainant about the injury despite admission, underscores crucial aspects pointing towards negligence. Supporting evidence includes the necessity for a subsequent surgery due to the injury, medical reports from Sawai Man Singh Hospital corroborating the injury, and MRCP reports indicating the presence of abdominal drainage tubes. The lack of any evidence presented by the OP countering the allegations of negligence in the complainant's surgery is stressed as a pivotal element reinforcing the claim of medical negligence.
8. The main issues for consideration are:
i) Whether, in the present case, with the death of the complainant during the pendency of the Appeal filed by the Complainant before the State Commission, the Consumer Complaint has abated and whether the action of the State Commission in allowing impleadment of the legal heirs of the complainant was wrong.
ii) On merits, whether the petitioner Doctor herein was negligent or whether the complications arising out of the said surgery were the inherent risks associated with such medical procedure and the Petitioner Doctor conducted the said Surgery with due care and whether State Commission was right in reversing the orders of the District Forum.
iii) If the medical negligence is established whether the State Commission's decision of awarding compensation and costs was justified and whether the State Commission was right in not involving / impleading the Insurance Company.
With respect to the first issue, the Petitioner has contended that in the present case the District Forum has dismissed the complaint and it is the complainant, who went in Appeal before the State Commission and during the pendency of this Appeal, the complainant died. Relying on provisions of Code of Civil Procedure, 1908 (CPC), Order XXII, Rule 1, 3 and 11, the Petitioner contends that death of the Plantiff (complainant in the present case) or Defendant does not cause the suit to abate, if the right to sue survives, but if the right to sue does not survive, the suit abates, Rule 11 of Order XXII extent to Appeals also. The Petitioner further contended that under Section 306 of the Indian Succession Act 1925, which outlines the causes of action that survive or abate after a party's death, the right to sue for personal injuries not causing party's death, abate. Hence, the Petitioner contends that the Legal Representative should not have been substituted as after the complainant's death, his right to sue for personal injuries did not survive. In support of his contentions, Petitioner has relied on following judgments:-
Melepurath Sankunni Ezhuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118, wherein the Hon'ble Supreme Court held that:-
"6. ......"306. Demands and rights of action of, or against deceased survive to and against executor or administrator.--All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Penal Code, 1860, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. ........
7. 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 is his right to sue for damages for 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 in the decree and the decretal debt forms part of his estate and the appeal from the decree by the defendant becomes a question of benefit or detriment to the estate of the plaintiff respondent which his legal representative is entitled to uphold and defend and is, therefore, entitled to be substituted in place of the deceased respondent plaintiff.
8. Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives, for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also.
9. The position, therefore, is that had the appellant died during the pendency of his suit, the suit would have abated. Had he died during the pendency of the appeal filed by him in the district court, the appeal would have equally abated because his suit had been dismissed by the trial court. Had he, however, died during the pendency of the second appeal filed by the respondent in the High Court, the appeal would not have abated because he had succeeded in the first appeal and his suit had been decreed. As however, the High Court allowed the second appeal and dismissed the suit, the present appeal by special leave must abate because what the appellant was seeking in this appeal was to enforce his right to sue for damages for defamation. This right did not survive his death and accordingly the appeal abated automatically on his death and his legal representatives acquired no right in law to be brought on the record in his place and stead.
Most. Devanti Devi v. State of Bihar, 2016 SCC OnLine Pat 2983, in this case, the Hon'ble High Court of Patna held:-
"9. In Pravabati Ghosh v. Gautam Das, reported in, 2006 Supp (1) GLT 15, one of us, Ansari, J., had the occasion to examine the scope of Section 306 of the Indian Succession Act, 1925, and observed and held as follows:
"A careful reading of the provisions of Section 306 shows that the right to sue, ordinarily, survives to and against every person except when the cause of action is, inter alia, for defamation, assault-or other personal injuries not causing death of the party. What also follows from a careful reading of Section 306 is that though in a claim application, the claimant may seek reliefs of not only compensation for the injuries sustained by him. but also for the expenses incurred for his treatment, loss of income, future expenses to be incurred, etc., the fact remains that all these reliefs would be available to such a claimant provided that the claimant is found entitled to receive compensation for the personal injuries sustained by him. Hence, when a claimant's claim for compensation arises out of personal injury sustained by him, the right to sue does not survive in favour of his legal representatives, if the injured-claimant dies not because of the injuries sustained by him, but for some order reason. A reference may, in this regard, be made to Melepurath Sankunni Ezuthassan v. Thekittil Geopalankutty Nair, (1986) 1 SCC 118 : AIR 1986 SC 411. In Melepurath Sankunni (supra), the Supreme Court, on considering Section 306 of the Succession Act, 1925, held that action personal is mortur-cum-persona (a personal action dies with the person) applies if the plaintiff dies during the pendency of the suit; but if the plaintiff dies, after the suit is decreed, the right to sue survives, for, in such a case, the cause of action has merged in the decree and the decretal dues forms part of the estate left behind by the deceased. This, in turn, will mean that when a suit for personal injury is decreed, the legal representatives can put such a decree to execution and may, if an appeal is pending against such a decree, be substituted, for, the right to sue or be sued survives if the suit already stands decreed in favour of the injured before the injured, died. In Melepurath Sankunni (supra), it has also been made clear that Section 306 of the Succession Act speaks of an action and not of an appeal, the effect being that if the plaintiff dies without the suit having been decreed, the legal representatives cannot be substituted. Clearly, therefore, when such a suit fails and the plaintiff or the claimant has preferred an appeal, the right to sue does not survive, for, the suit abates on the death of such a plaintiff or claimant."
9. Now the question arises is whether Consumer Complaint under the provisions of Consumer Protection Act, 1986, alleging deficiency in service on the part of medical doctor/medical negligence and seeking compensation is a case of, 'personal injury not causing death of the party' as specified U/s 306 of Succession Act 1925 and whether such a complaint will abate on the death of the complainant. Section 2 (1) (c) of the Act defines complaint, which in the context of services, means any allegation that the services hired or availed of or agreed to be hired or availed of suffers from deficiency in any respect. Consumer U/s 2(1) (d) means 'any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid' . Deficiency u/s 2 (1) (g) is defined as "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service'. Section 2(1) (o) defines service as "service means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 20 [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; ......" Services provided by medical doctors are covered under the provisions of Act and entitles a person who alleges deficiency in service and/or unfair trade practice on the part of a doctor to claim compensation for such deficiency in service or unfair trade practice on the part of the doctor. This Commission vide its order dated 11.07.2022 in IA/977/2022 in CC/2589/2018 in Antra Mallick & Ors. Vs. Sante-Vita Hospital & Ors. observed/held as follows:-
"4. It is pertinent to note that after filing the complaint, the Complainant Antra Mallick was alive and under treatment, thereafter she died on 12.08.2021. As per Order XXII Rule 3 of Civil Procedure Code,where the right to sue survives and if the Complainant dies, the legal heirs can be substituted for further proceedings. In our view, Melepurath Sankunni (supra), the case pertains to personal injury due to defamation. The facts and issues are different to this case. The instant case is of alleged medical negligence, wherein the patient suffered personal injury as well as her legal heirs as beneficiaries have suffered mental and physical trauma. They are also Consumers and have right to seek compensation from the Opposite Parties."
10. In view of the foregoing we are of the considered view that action under a Consumer Complaint alleging medical negligence survives on the death of Complainant during the pendency of complaint. Similarly, the Appeal filed by Complainant will survive on the death of complainant during the pendency of such Appeal. Hence, the Legal Heirs of such Complainant/Appellant have a right to get impleaded and continue with such proceedings. Hence, in the present case, with the death of Complainant during the pendency of Appeal before the State Commission, the Consumer Complaint has not abated. Hence, the State Commission was right in allowing the impleadment of Legal Heirs of the Complainant.
11. Coming to the issue of medical negligence on the part of the Petitioner doctor, District Forum while rejecting the complaint has observed as follows:-
"6. We gave a deep thought to the arguments and honourably studied the case law produced. It is not disputed that the complainant has been treated by the respondent, but no document/paper or evidence has been produced on behalf of the complainant to the effect that the treatment of the complainant was done negligently. In addition to this, there is no opinion of the Expert Doctor or Medical Board in support of the fact that there was any kind of wrong or negligence on the part of the respondent in treating the complainant. In compliance of the principles laid down in the case law, Martin F. O'Suja Vs. Mohd. Ishfaq AIR 2009 Supreme Court Page 2049, produced on behalf of the respondent, no expert opinion/report of any Medical Specialist, competent doctor or committee of competent doctors regarding negligence of the respondent/OP, is on record in the present case. Under these circumstances, there is sufficient and right basis to conclude that the respondent is a retired doctor from the post of Jr. Specialist (Surgery) and he gave the treatment to the complainant according to his qualification/competence and carefully. The version/allegation of the complainant against the respondent regarding negligence in the treatment is baseless, arbitrary untenable/unreasonable. No negligence of the respondent can be accepted and the complainant is not entitled to any relief."
12. State Commission, while reversing the order of the District Forum in Appeal has observed as follows:-
"It is not disputed that the respondent had operated the complainant for her gall bladder in his hospital on 19.05.2008. We would like to draw our attention to para 2 of the reply/written statement of the respondent wherein it has been admitted by the respondent that after the operation small injury occurred to the bile duct of the complainant. According to him it is a complication of this surgery. The respondent has not produced any evidence or medical literature before the District Forum on the basis of which it could be inferred that after the operation injury to the bile duct is obvious. When the respondent himself admits that it was a complication, then the same should have been reflected in the discharge note. He did not inform the complainant about this injury to the complainant. It has also not been revealed when the complainant come to know about this injury. Was it when the complainant again went to the respondent and complained of continuous pain and she was again operated and when her condition became serious, she was referred to SMS Hospital? On these facts we are of the opinion that even if the complainant could not produce any medical opinion, the negligence of the respondent is appearing from the written statement of the respondent himself. The version of the respondent is that this injury occurred after the operation and it is a complication of the surgery itself, then information in this regard should have been given to the complainant, and if it was a normal complication, what was the reason to admit the complainant again for the surgery. This means that despite the knowledge of this injury, the respondent did not tell the complainant about it, nor made any efforts to treat the injury. When the complainant was admitted in SMS Hospital, Jaipur, the fact "Abdominal drainage tube is seen in SITU" appeared in her MRCP Report. Thus the plea of the complainant that her vein was cut, which is a statement in simple language, stands corroborated from the statement of the respondent himself and also from the MRCP Report of the SMS Medical College. This fact is further corroborated from the second surgery performed by the respondent that he had the knowledge that some deficiency has remained in the treatment of the complainant and only two days thereafter the complainant was again admitted for the second surgery and when her condition became serious after the operation, she was referred to SMS Hospital. In our opinion the conclusion of the Ld. District Forum that no negligence of the respondent is proved, was not correct, rather the facts - the admission on the part of the respondent, admitting the complainant for the second operation, admitting the fact of injury after the operation and not giving intimation about this injury to the complainant or her relatives and not making any effort to treat the said injury etc., indicate us to reach at the conclusion that the respondent committed negligence in the treatment of the complainant. Therefore, as a result of the aforestated discussion, we consider this appeal fit for acceptance."
In Savita Garg v. Director, National Heart Institute, (2004) 8 SCC 56, the Hon'ble Supreme Court has observed that-
"10. 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........ 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..........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 and the concerned doctor who treated that patient that there no negligence involved in the treatment.............."
In Nizam Institute of Medical Science v. Prasanth S. Dhananka & Ors.2009(3) CPR 81 (SC), the Hon'ble Supreme Court has observed that-
"32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence."
In Jacob Mathew v. State Of Punjab & Anr. (2005) 6 SCC, the Hon'ble Supreme Court has observed that-
"The essential components of negligence, as recognized, are three: "duty", "breach" and "resulting damage", that is to say:-
the existence of a duty to take care, which is owed by the defendant to the complainant;
the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
3. damage, which is both causally connected with such breach and recognized by the law, has been suffered by the complainant."
3. .......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........ Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment....... 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.
"48. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
16. In view of the foregoing, we agree with the observations and findings of State Commission that the Petitioner Doctor was negligent. We do not agree with the observations / findings of District Forum in this regard. The State Commission has rightly reversed the findings of District Forum.
17. As regards the third issue with respect to impleading of the Insurance Company, we do not agree with the contentions of the Petitioner that the State Commission erred in not involving the New India Insurance Company with whom OP/Petitioner herein was insured. In this regard, if the OP/Petitioner doctor is held liable for compensation on account of medical negligence and he holds a valid Insurance Policy from any Insurance Company, he is free to lodge his claim with the Insurance Company alongwith requisite orders of the Commission under which he has been held liable in order to pay compensation and the insurance company will surely consider his claim as per the terms and conditions of such policy. Hence, we hold that State Commission was right in holding Petitioner doctor liable and has awarded a just and fair compensation of Rs.1.00 lakh and litigation costs of Rs.10,000/-.
18. In view of the foregoing, we agree with the findings of the State Commission and hold that the Petitioner doctor was negligent. As was held by the Hon'ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that "the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity." We find no illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld. Accordingly, RP is dismissed.
19. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER