Harnek Singh & Ors. v. Gurmit Singh & Ors.
211
The following Order of the Court was passed:
ORDER
1. Leave granted.
2. These appeals arise out of the decision of the N ational
Consumer Disputes Redressal Commission, New Delhi 1 dismissing
the appeal of the complainant and allowing the appeal o f the doctor
and the hospital by holding that no medical negligence was p roved.
Having examined the evidence, medical records and the report of
the ethics committee of the Medical Council of Indi a2, we have
concluded that a case of deficiency of service is m ade out against
the doctor and the hospital, Respondents 1 and 2, h erein for medical
negligence. Allowing the appeal of the complainants, we have directed
payment of compensation. We will first refer to the fa cts leading to
this case.
Facts:
3. Facts as stated in the complaint filed before St ate Consumer
Disputes Redressal Commission 3 are as follows. Appellant 1, the
complainant, is a retired Semi-Government employee and his wife
Late Mrs. Manjit Kaur, aged 47 years had been worki ng as a
Government teacher. Mrs. Manjit Kaur, the patient, developed
abdominal pain for which an ultrasound examination w as done and it
revealed the presence of gall bladder stones. On 13.07.2004 the patient
approached Respondent 1, a laparoscopic surgeon at Pree t Surgical
Centre & Maternity Hospital, Respondent 2. After du e examinations
and medical tests, Respondent recommended surgery for removing
the gall bladder stones and prescribed certain tests to be carried out
in advance.
4. The complainant got the advised investigations do ne and
showed the results to Respondent 1. He then asked the comp lainant
to get yet another USG examination from a specific c entre as he
was not satisfied with the earlier USG dated 14.7.2 004. The
complainant complied with this instruction of Respondent 1 and again
medical tests were done from a specific USG centre on 23.7.2004.
Respondent 1 was satisfied with the results and adv ised the
1 hereinafter referred to as ‘the NCDRC’.
2 hereinafter referred to as ‘the MCI’.
3 hereinafter referred to as ‘the SCDRC’.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
complainant to get the opinion of a cardiologist as t he tests revealed
the patient’s blood pressure to be slightly high. O n 26.07.2004,
Dr. Dharamvira Gandhi, the cardiologist cleared the patient for
surgery.
5. On the morning of 28.07.2004, Respondent 1 perfo rmed a
laparoscopic cholecystectomy and placed a drain in the patient’s
abdomen. On 29.07.2004, the patient complained of a bdominal pain
and distension. The drainage tube was showing a discharg e of fluid
which was slightly green in colour, which later on tu rned greenish-
brown. When the complainant informed Respondent 1 a bout this, he
was told that such fluid was expected and that is w hy the tube had
been inserted. Respondent 1 also informed the compl ainant that he
had reviewed the operative CD and assured that ther e was no
indication of any injury, even in the operative video.
6. On the next day, the patient became very serious and the
abdominal distension and pain was compounded by dif ficulty in
breathing.
Respondent 1 reassured the complainants and started oxygen
infusion to the patient and prescribed some blood te sts and ultrasound
examination. The request for a second opinion or refer ral to Rajindra
Hospital, Patiala attached to Medical College was d ismissed by a
further assurance that the patient was in safe hand s. Later that
evening, Respondent 1 informed the complainants the c ause of the
problem was acute pancreatitis and that there was n othing wrong
with the surgery. However, the complainants remaine d unconvinced,
especially because of the dirty brown discharge com ing through the
drain and the persistent pain, distension and breat hlessness which
were indicative of some major intestinal or bile duct injury, which the
staff of Respondent 1 had hinted. The complainant a gain requested
Respondent 1 to seek another opinion or shift the pati ent to another
hospital.
7. At around 9 P.M. on 30.07.2004, Respondent 1 dec ided to
shift the patient to Dayanand Medical College and Hospital, Ludhiana,
Respondent No. 4 herein and refer the patient to Dr . Atul Mishra,
Respondent No. 3 herein. Respondent 1 declined the req uest by the
complainant to give detailed patient records and operatio n notes by
stating that the patient’s condition had been adequ ately explained to
213
Respondent 3. Dr. Punit Gupta was the doctor on dut y when the
patient was admitted. As per his assessment, there was sus picion of
an iatrogenic injury to the bile duct and possibly also to the intestine,
during the previous surgery. He advised an urgent a bdomen CT scan
to get a clearer picture. A CT scan was done and as per the report,
the small and large intestines were normal. However , it revealed
moderate intra-abdominal and sub-phrenic collection . Respondent 3
examined the patient and the CT scan report the nex t morning at 9
A.M. Since the patient was suffering from multiple ailments like
pneumonia, high blood pressure and coagulopathy, immediate surgical
intervention was not advised.
8. On 02.08.2004, the patient’s condition became crit ical and
she showed signs of colonic perforation. The bilious drain fluid became
feculent and foul-smelling. On 03.08.2004, an emergency la parotomy
was performed. Respondent 3 informed the complainants t hat there
was a large collection of intestinal contents in the abdomen due to an
injury to the colon and in addition to that there was also a bile duct
injury, which would be repaired in a subsequent surgery. The patient’s
condition kept deteriorating and she went into mult i-organ failure
including failure of the respiratory system, cardiovascula r system and
renal failure.
9. The patient died on 11.08.2004.
10. The complainant discussed the cause of death and the need
for autopsy with Respondent 3, however, he was told that the patient
died due to intra-operative injuries to the colon and bile duct resulting
in Peritonitis, Peritoneal Collection, Septicaemia and Multi-Organ
failure.
Proceedings before the State Commission :
11. It is in the above-referred circumstances that the
complainant filed a consumer complaint before the S CDRC, Punjab
on 14.02.2005, which was subsequently transferred t o State
Consumer Commission, U.T. Chandigarh. The complaina nt prayed
for monetary compensation quantified at Rs. 62,85,1 60 from the
Respondents for negligence and deficiency of services .
12. Respondents 1 and 2 filed a reply stating that Res pondent
1 is an experienced surgeon and has performed more than 2,500
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
laparoscopic operations successfully. It was explai ned that the
patient’s surgery was performed with proper care, b ut after the
surgery, she developed epigastrial pain and slight distension in the
abdomen. Immediately conservative treatment was star ted and the
patient got some relief from the same. However, on the night of
30.07.2004, the patient’s condition got critical, as a result of which
she was referred to Respondent 4 hospital to be treated by Respondent
3.
13. Respondents 3 and 4 in their reply denied the all egations of
negligence and stated that the hospital provided du e and proper care
to the patient. It was further stated that most of the iatrogenic injuries
to the bile duct during the cholecystectomy were no t recognised in
the operating room but were detected after a few da ys as biliary
fistula or bile peritonitis. It was stated that the initial response of
Respondent 3 was to not operate immediately as it w as decided to
evaluate the nature of the leak and attempt to contr ol the fistula.
Also, conducting the operation earlier was not medi cally advised.
The operation was conducted on 03.08.2004 to tackle perforation in
the large bowel.
14. A reply was also filed by Dr. Dharamvir Gandhi, the
cardiologist who stated that the patient was 47 year s old and was
referred to him by Respondent 1. It was found that she was a patient
of hypothyroidism and was taking treatment for the same for the last
three years. She complained of chest pain and breat hlessness for
which she was treated with due care. Her cardiovascular status was
stable.
15. Both Respondents 1 and 3 were duly cross-examin ed by
counsel of the complainant on 06.07.2006. The complai nt also cross-
examined Dr. Inderjit Singh and Dr. Navdeep Singh as e xperts before
the SCDRC.
16. The SCDRC after considering the evidence and he aring
both the parties, allowed the complaint and held Res pondents 1 and 2
negligent and exonerated Respondents 3 and 4. Respo ndents 1 and 2
were directed to pay Rs. 15,44,000 jointly and severally and Rs. 10,000
as costs.
17. The SCDRC found that the CT scan which was perf ormed
on 31.07.2004 showed pneumo peritoneum which meant a si gnificant
215
amount of free air in the abdomen outside the intes tines was present
which is not normally present. During laparoscopic surgery, gas is
introduced into the peritoneal cavity and all the ga s does not get
removed at the end of the surgery. It is a known fac t that this residual
gas gets absorbed and does not stay in the abdomen f or more than
24 hours. The only other area from where the gas can enter the
peritoneal cavity is the intestines if they are rupt ured at any place.
The CT scan was performed three days after the laparos copic surgery
and significant air was present even after three da ys which is a clear
sign of an intestinal injury. There was also some su bphrenic abscess
found below the diaphragm which has to be removed, ot herwise,
diaphragm movements cannot be restored. SCDRC found that it was
the direct consequence of the intra-operative injury to the bile duct
and colon caused by Respondent 1 during the laparos copic
cholecystectomy that later led to the death of the pat ient. With respect
to Respondent 3, the only allegation was a delay in operating on the
patient. SCDRC found that Respondent 3 could not de tect any
important sign of bowel perforation on 31.07.2004 or 0 1.08.2004 and
therefore he decided against any surgical intervention at that point of
time and hence there was no negligence on the part of Respondent
3.
18. The complainants filed an appeal before the NCD RC.
Simultaneously Respondents 1 and 2 also filed an appeal for dismissal
of the Complaint.
Proceedings before the MCI :
19. It is necessary to mention at this stage that w hile the
proceedings were pending before the SCDRC, the compl ainants also
made a complaint to the Punjab State Medical Counci l against the
professional misconduct of the Respondents, which was su mmarily
disposed of on 13.06.2006. The complainants filed an appe al to the
MCI. The MCI considered the appeal of the complainant a nd asked
Respondents 1 and 3 to appear before the Ethics Com mittee. Both
the Respondents submitted their detailed replies. T he Ethics
Committee considered the matter and held Respondent 1 medically
negligent and issued a strict warning to be more careful during
the procedure and to be more diligent in treating a nd monitoring
his patients during and after the operation . Respondent 3 was
exonerated as no medical negligence was proved against h im.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
Proceedings before the NCDRC :
20. Coming back to the appeal before NCDRC, it hear d both
the appeals together, i.e. the appeal filed by the complainants as well
as Respondents 1 and 2. The NCDRC observed that the patie nt was
operated on by Respondent 1 on 28.07.2004 and the i njuries were
detected after six days. The CT scan report of 31.07.2004 ruled out
any evidence of injury or perforation peritonitis a nd therefore
Respondent 1 did not ignore any signs of biliary and fe cal peritonitis.
Further, the complainant relied on the paramedic st aff of the
Respondent 2 hospital who informed him about the op erative injury,
it was held that there was no evidence in this rega rd. There was no
negligence found on the part of Respondents 1 and 2.
21. In the case of Respondents 3 and 4, it was foun d that the
patient was not fit for diagnostic laparoscopy immediat ely since there
were no signs of any obstructive lesion or proximal dilation. On
02.08.2004, there was a sudden deterioration in the patient’s general
condition and she was then diagnosed with bowel leak with peritonitis.
She was operated on 03.08.2004 to repair the coloni c perforation.
The patient’s condition started weakening and she died on 11.08.2004
due to cardiac arrest. It was held that Respondents 3 and 4 acted
with due care and hence there was no negligence.
22. The NCDRC by way of the impugned decision on
05.06.2020 allowed the appeal of Respondents 1 and 2 and set aside
the order of the SCDRC holding that negligence was not proved by
the complainants. It is from this decision that the present appeals
arise.
Submissions :
23. In these appeals, we have heard Mr. Raj Kiran T alwar
learned advocate for the Appellants and Dr. Sushil Kumar Gupta,
Ms. Suruchi Suri and Mr. Anuj Chauhan, learned advo cates for the
Respondents.
24. Mr. Raj Kiran Talwar, learned advocate for the Appellants
made the following submissions. At the outset, he w ould submit, that
the patient suffered two iatrogenic injuries during her first surgery,
one to the colon and the other to the bile duct. From these two injuries,
fluids from the bile started to accumulate in the p eritoneal cavity of
217
the patient while the overflowing fluid started to c ome out of the
drain. Secondly, after the patient became critical, Respondent 1
referred the patient to Respondents 3 and 4 at Ludh iana which is at
a distance of 100 KMs instead of a local hospital at a nearer distance.
Thirdly, strong reliance was placed on the statement of Respondent
1 in his cross, where he categorically stated that it did not occur to
his mind that the injuries could take place. Fourth ly, Respondent 3
negligently delayed the re-exploration surgery even after receiving
the CT scan report. Finally, the NCDRC gave its deci sion without
referring to the MCI findings. In support of his submi ssion, he relied
on a judgment of this Court in Maharaja Agrasen Hospital and
Ors. v. Master Rishabh Sharma and Ors. 4
25. On the other hand, Dr. Sushil Kumar Gupta, learned counsel
appearing for Respondents 1 and 2 made the following submissions.
The presence of a biliary leak does not signify inj ury of a bile duct as
it can occur from the liver bed from the cholecycto- hepatic duct,
slippage of a clip from cystic duct stump which are not injuries. Second,
for there to be a presence of a leakage from the la rge intestine, there
are some specific symptoms which were not shown and therefore
leakage of the colon was ruled out. Finally, since there was no bile
duct or colon injury, the presence of rent in the h epatic flexure of the
colon may be either a result of delayed manifestati on due to thermal
injury because of the electro-cautery, or it may be a rare case of
injury to the hepatic flexure of the colon because of the drainage
tube.
26. Ms. Suruchi Suri, learned counsel appearing for
Respondents 3 and 4 submitted that, the only allegation is of the delay
in diagnosis of colonic perforation and corrective surgery. This
according to her is proved incorrect as per the findin gs of the MCI,
SCDRC and the NCDRC as well. Second, the surgery was performed
diligently and with due care. The bile leak coming out of the drain
after the gall bladder surgery had occurred during t he first surgery
performed by Respondent 1. The patient was already critical when
she was admitted to Respondent 4 hospital and theref ore immediate
surgical intervention was not called for. However, w hen the fecal
matter leak was found in the drain, the patient was immediately
operated on.
4 Maharaja Agrasen Hospital and Ors. v. Master Rishab h Sharma and Ors. (2020) 6
SCC 501.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
Analysis :
27. The primary question is whether the complainant has
established professional negligence on the part of R espondents as
per the standards governing the duty to care of a medical practitioner.
The SCDRC in its detailed decision considered the o ral and
documentary evidence including medical journals and con cluded that
Respondents 1 and 2 acted negligently in performing th e operation.
SCDRC also held that there is no evidence of negligen ce in so far as
Respondents 3 and 4 are concerned.
28. What we have noticed in the impugned decision of the
NCDRC is that a substantive part of the decision refers only to judicial
precedents on the question of medical negligence. Refe rence is made
to the decisions in the case of Kusum Sharma & Others v. Batra
Hospital & Medical Research Centre and others 5; Jacob Mathew
v. State of Punjab 6; Achutrao Haribhau Khodwa and others v.
State of Maharashtra and others 7; and S.K. Jhunjhunwala v.
Dhanwanti Kaur 8. Apart from the case laws on facts, the NCDRC
devoted its attention substantially to the allegati ons against
Respondent 3 who was anyway exonerated by the SCDRC . In so
far as Respondent 1 is concerned, the NCDRC did not meet the
specific allegations of negligence in the performan ce of the surgery.
29. There was sufficient material indicative of lar ge bowel
perforation after the laparoscopic operation. It is true that it may not
have manifested immediately in the normal course. H owever, there
were sufficient indicators to a diligent profession al, to detect and
take immediate steps for restitution. Instead of examining the material
that was placed on record, NCDRC seemed satisfied w ith raising
and rejecting the plea of res ipsa loquitur and holding that it is
impermissible to assume that any sensible professio nal would
intentionally commit an act which would result in a n injury to the
patient. In these proceedings for damages due to pr ofessional
negligence, the question of intention does not aris e. Unfortunately,
5 Kusum Sharma & Ors. v. Batra Hospital and Medical R esearch Centre & Ors. ,
(2010) 3 SCC 480.
6 Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1.
7 Achutrao Haribhau Khodwa and Others v. State of Maharashtra and others (1996) 2
SCC 634.
8 S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr. (2019) 2 SCC 282.
219
the NCDRC did not even refer to the report of the M CI. In fact, a
reference to the MCI report would have been suffici ent to come to
the right conclusion.
30. The MCI examined the matter in the context of an appeal
filed by the complainants against the decision of th e Punjab Medical
Council dated 13.6.2006. MCI referred the appeal fi led by the
complainant to the Ethics Committee. The Committee recorded the
statement of the complainant, and the doctors Responde nts 1 and 3.
The Ethics Committee also sought the opinion of Expe rts on the
conduct of these Respondents. The two Experts were Professors
and HODs of AIIMS, New Delhi and KGMC, Lucknow. We will
now refer to each of their opinions.
31. In the opinion of Professor and HOD, Department of
Surgery, AIIMS, extracted in the MCI report is as u nder:
“The findings at laparotomy confirmed it to be a ca se of
large bowel perforation, which could be iatrogenic, related
to the laparoscopic procedure . Appropriate surgical
intervention was done on a by now very sick patient . Patient
died on 11.8.2004.
Comment: It appears on the basis of available recor ds that
the diagnosis and operative intervention for genera lised
peritonitis as a result of bowel perforation was si gnificantly
delayed first at the local hospital and subsequently at DMC
Ludhiana and lead to the unfavourable outcome.”
32. In the opinion of Professor and HOD, Surgery, K GMC
Lucknow, extracted in the MCI report is as under:
“In case of Dr. Gurmit Singh also, as per records i t appears
that he is not negligent his duties towards Mrs. Ma njeet
Kaur during her stay in his hospital and has given care to
best of his proficiency and available facilities. However,
following relevant observations are made: -
1. Pre-operative clearance from Cardiologist was tak en.
2. Pre-operative correction of anaemia by three unit of
blood done.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
3. Pre-operative consent paper has been signed which
mentions the possibility of fatality and likelihood of
complication.
4. Post-operative second opinion was taken by Dr. Gu rmit
Singh.
5. Records of Preet Hospitals are present in documen t sent
by you, but recorded CD of Surgery is not available .
6. In his statement of complaint, he mentions that b oth Dr.
Gurmit Singh and Dr. Atul Mishra are qualified medi cal
professionals.
7. Shifting of patient was done in distant hospital where
better GI and ventilatory facilities are claimed. Howev er,
availability of these facilities in local city is m atter of
survey, which should be sought for.
8. Minor bile leak during surgery is accepted by
Dr. Gurmit Singh, which kept on increasing in post-
operative period.
9. Bowel perforation and bile duct injuries were not ed in
surgery done by Dr. Atul Mishra at Ludhiana.”
33. After considering the material on record as wel l as the
opinions of the Professors as indicated above, MCI concluded as
under:-
“In addition to that the Ethics Committee has decid ed to
request Prof. & HOD of Surgery, AIIMS, New Delhi an d
Prof. & HOD of Surgery, KGMC, Lucknow to kindly ass ist
the Ethics Committee by going through all the recor ds of
the case and give their opinion regarding this matt er.
Accordingly, Prof. & HOD of Surgery, AIIMS, New Del hi
has given his opinion in writing and also Prof. & H OD,
KGMC, Lucknow has sent his opinion.
The Ethics Committee after perusal of all the above
documents have come to the conclusion that –
1. In the case of Dr. Atul Mishra, no case of medica l
negligence can be established against him. Therefor e,
221
the Ethics Committee decided to drop the matter aga inst
Dr. Atul Mishra and exonerate him from the charges.
2. Ethics Committee found that Dr. Gurmit Singh has failed
to exercise adequate medical competence in treating the
patient as is apparent from the following points:-
(a) There was a large bowel perforation after the
laparoscopic operation. This complication which
though not known in the normal course of time,
had occurred in this particular case. This
complication could have been prevented if care had
been exercised during the procedure by Dr. Gurmit
Singh.
(b) More important Dr. Gurmit has failed to suspect
the occurrence of complications despite following
warning, signs/symptoms-
i)the patient not recovering after the operation.
ii)the patient increasingly deteriorating.
iii)there was a strong indication of a complication
occurring after the procedure. Thereafter, his
failure to detect all these conditions led to delay in
diagnosis all perforation of the bowel and has to
lead a situation of avoidable delay which causes
increased deterioration of the patient.”
34. In view of the clear findings, the MCI decided to issue a
strict warning to Respondent 1 to be more careful during the
procedure and to be more diligent in treating and m onitoring his
patients during and after the operation. As against Respondent 3,
the MCI dropped the case and exonerated him.
35. So far as present proceedings are concerned, as th ey arise
out of a claim for compensation on the basis of medi cal negligence,
the opinion and findings of the MCI regarding the professional conduct
of Respondent 1 have great relevance. The findings of the Medical
Council, which is a statutory regulator have been e xtracted
hereinabove, may be formulated as under:
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
1. Existence of Generalized peritonitis as a result of bowel
perforation. (per the opinion of Professor & HOD,
Department of Surgery, AIIMS) .
2. There was a significant delay in its diagnosis an d
operative intervention, first at the local hospital and
subsequently at DMC, Ludhiana. (per the opinion of
Professor & HOD, Department of Surgery, AIIMS).
3. This has led to the unfavourable outcome. (per the
opinion of Professor & HOD, Department of Surgery,
AIIMS).
4. Shifting of the patient by Respondent 1 was done i n a
distant hospital where better GI and ventilatory facil ities
are claimed. However, the availability of these fac ilities
in the local city is a matter of survey, which shou ld be
sought for. (per the opinion of Professor & HOD,
Department of Surgery, KGMC, Lucknow).
5. Minor bile leak during surgery is accepted by Dr. Gu rmit
Singh. This kept on increasing in the post-operati ve
period. Bowel perforation and bile duct injuries we re
noted in surgery done by Dr. Atul Mishra at Ludhian a.
(per the opinion of Professor & HOD, Department
of Surgery, KGMC, Lucknow).
6. Dr. Gurmit Singh has failed to exercise adequate medi cal
competence in treating the patient as is apparent f rom
the facts. (Experts Common Opinion)
7. There was a large bowel perforation after th e laparoscopic
operation. (Experts Common Opinion)
8. The complication which though not known in the normal
course of time, had occurred in this particular case . This
complication could have been prevented if care had been
exercised during the procedure by Dr. Gurmit Singh.
(Experts Common Opinion)
9. Dr. Gurmit Singh failed to suspect the occurrence of the
complication despite warning signs/symptoms. (Experts
Common Opinion)
223
10. Dr. Gurmit Singh ignored the following factors n amely,
(a) the patient was not recovering after the operat ion,
(b) the patient’s condition was increasingly deteriorating,
and
(c) there was a strong indication of a complication
occurring after the procedure. (Experts Common
Opinion)
11. Failure of Dr. Gurmit Singh to detect the warning signs/
symptom led to a delay in diagnosis of bowel perforati on
and this has, in turn, led to a situation of avoidabl e delay
which eventually cause increased deterioration of th e
patient . (Experts Common Opinion)
36. The above-referred findings of the MCI on the co nduct of
Respondent 1 leave no doubt in our mind that this is certainly a case
of medical negligence leading to deficiency in his s ervices. NCDRC,
except referring to the general principles of law as laid d own in the
judgments of this Court has not attempted to draw i ts conclusion
from the oral and documentary evidence available on reco rd.
37. Apart from the facts that clearly emerge from t he report
of the MCI, there is sufficient evidence to reiterat e the same findings
of deficiency. In the oral evidence, the following answers were elicited
from Respondent 1 in the cross-examination which fo rtify the report
given by the MCI.
Q) Did you consider during your investigation that there
was possible intra-operative injury to bile duct or intestines?
A) No it did not occur to my mind . In-fact there was no
such injury while the patient was in my hospital.
Q) Did you think it necessary to take opinion/consu ltation
of another Surgeon?
A) I did not think it necessary in the circumstance s of this
case to consult another surgeon.
Q) Why did you consider it proper to refer the pati ent to
another Surgeon instead of a Chest Specialist as ac cording
to your opinion, the patient was not having any sur gical
problem but was having chest problem.
HARNEK SINGH & ORS. v. GURMIT SINGH & ORS.
A) The patient was referred to a Surgeon because we
wanted to know that why the abdomen pain has develo ped
as also why there was excessive discharge from the drain.”
38. Having considered the matter in detail, we are of the opinion
that the NCDRC has committed an error in reversing the findings of
the SCDRC and not adverting to the evidence on reco rd including
the report of the MCI. The decision of the NCDRC de serves to be
set aside and we hold that the complainants have ma de out a case of
medical negligence against Respondents 1 and 2 and are entitled to
seek compensation on the ground of deficiency of servic e.
39. The State Commission as well as the National Co mmission
and even the MCI have not found Respondents 3 and 4 negl igent in
performing their services, and we are in agreement wit h such findings
and therefore, confine our conclusion and direction s to Respondents
1 and 2. To this extent, we reject the appeal of the complainant against
all except Respondents 1 and 2.
40. In view of the findings as indicated above we a re of the
opinion that the appeal filed by the complainants d eserves to be
allowed. The complainants had claimed an amount of
Rs. 62,85,160/- on various counts such as amounts paid t o the doctors
and the hospitals for treatment, loss of income of the patient who
was a Government servant with the salary of Rs. 37,1 50 per month
with 10 years remaining service, damages for trauma and shock and
on certain other grounds. Having considered the mat ter in detail, we
are of the opinion that the interest of justice wou ld be subserved if
Respondents 1 and 2 are directed to pay to the complai nants a total
amount of Rs. 25,00,000 (Rupees Twenty Five Lakhs o nly) with
interest @ 6% per annum from the date of SCDRC orde r as
compensation. Respondents 1 and 2 will be entitled to adjust any
amount already paid or deposited in favour of the co mplainants
pending proceedings. The amount shall be deposited within a period
of 6 months from today, failing which it shall carr y an interest of 9%
per annum.
41. For the reasons stated above, these appeals are allowed
and the judgment of the National Consumer Disputes Redressal
Commission, New Delhi in Appeal No. 108/2008 and Ap peal No.
120/2008 is hereby set aside. Parties shall bear thei r own costs.
Nidhi Jain Appeals allowed.
(Assisted by : Shashwat Jain, LCRA)