PER VINEETA RAI, MEMBER 1. ILS Hospital and its doctor namely Dr. Om Tantia, Appellants herein and Opposite Parties before the West Bengal State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the State Commission) have filed the present First Appeal being aggrieved by the order of that Commission which had allowed the complaint of medical negligence against them filed by Bimal Kumar Ghosh, Respondent herein and Original Complainant before the State Commission. 2. FACTS: Respondent had contacted one Dr. Om Tantia/Appellant No.2 following intermittent pain in his upper abdomen. Dr. Tantia after conducting necessary tests informed the Respondent that there was a stone in his gall bladder and advised to him to take admission in Appellant No.1/Institute. He was admitted there on 20.04.2001 and was advised to undergo laparoscopic operation which was fixed for 25.05.2001. On that date inside the operation theater Respondent noted that an Anesthetist under the guidance of the surgeon roughly tried to force an apparatus resembling a cylindrical pipe down his throat unsuccessfully several times. Respondent experienced excruciating pain and in fact after a couple of attempts blood spurted out. But despite this, attempts to force the pipe down his throat continued. Sometime later the Respondent was wheeled out of the operation theater without being operated. The area of his throat which had been ravaged and badly injured was merely patched up. Respondent family was subsequently told that a difficulty was faced in the area of the throat because of a tumor and, therefore, the operation could not be conducted. On the next day on the advice of an ENT specialist a CT was conducted which confirmed serious damage inside the throat with formation of several air pockets. After seeing the CT scan, Dr. Tantia/Appellant No.2 discharged the Respondent from Appellant No.1/Institute stating that no further treatment was possible. When Respondent contacted another doctor i.e. Dr. Ajoy Arya, he expressed surprise about the diagnosis of tumor since there was no tumor in the Respondent throat. Since the Respondent continued to undergo great physical and mental distress because of the injuries inside the throat, he took admission at Calcutta Medical Research Institute (CMRI) where following diagnostic tests, including a CT scan, another operation was conducted, which took nearly 5 hours, during which tracheostomy alongwith drainage of parapharyngeal abscess was done and after intensive medication and treatment, Respondent was discharged on 07.07.2001. Even thereafter Respondent could not recover fully and continued to face difficulty in breathing and, therefore, he had to continue medication for the same. Respondent contended that he had spent well over Rs.1 Lakh on his treatment from 20.04.2001 till the filing of his complaint and these expenses are continuing, as a result of which there has been severe trauma to him and mental distress to his family and he has not been able to resume his professional life thereby suffering financial losses. Being aggrieved by the improper conduct of Appellants in injuring his throat by not taking due precautions while preparing him for the anesthesia and thereafter abandoning him, Respondent filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that the Appellants be directed to pay him (i) Rs.1,06,612/- being reimbursement of medical expenses alongwith interest; (ii) Rs.10,00,000/- as damages for severe trauma and mental agony; and (iii) any other relief as deemed necessary. 3. Appellants on being served entered appearance and filed a written rejoinder denying the averments made in the complaint. It was admitted that the Respondent had been admitted to Appellant No.1/Institute, during which pre-operative investigations were carried out and he was advised gallstone surgery. A pre-operative anesthetic check-up was also done and he was given certain injections in the operation theater and when he became unconscious intubation was tried but it was difficult due to the fact that Respondent laryngeal opening was found to be high up and anterior, because of which the endotracial tube could not pass and, therefore, the surgery had to be abandoned. It was stated that the Respondent, who was suffering from the above structural problem in the throat, had not disclosed this fact to Appellants. Since it is not the standard medical norm to enquire about the throat condition of a patient who is to undergo surgery under general anesthesia Appellants cannot be blamed for any negligence. It was further denied that the Respondent was abandoned by the Appellants when the surgery could not be done. In fact it was at the instance of the Appellants that Respondent was examined by an ENT specialist where the problem was diagnosed. It was further stated that in view of the fact that the problem occurred not because of any medical negligence but because of an anatomical/structural defect inside the throat of the Respondent, which was not disclosed by him and which resulted in an unsuccessful intubation, which is also not uncommon, the Appellants cannot be held guilty of either medical negligence or deficiency in service. 4. The State Commission after hearing the parties and on the basis of evidence produced before it, allowed the complaint by observing as follows : we are of opinion that when it is the case of the Ops that unsuccessful intubation is not uncommon to the Medical World, the Ops ought not have left the matter for disclosure by the patient. We do not think medical ethics is founded on the principle of Patient Disclosure Theory as claimed by the Ops. It would not be off the track to hold that when a patient approaches a doctor upon payment of requisite fees for medical help, it is incumbent upon the doctor to see so that the patient does not suffer unnecessarily. In this connection, we further hold that onus of the doctor is not discharged and shifted upon the patient unless some contrary action is proved on the part of the patient. Plea of non-disclosure is thus not accepted by us. The present world is being governed by the principles of consumerism. The pleas of the Ops that in all cases of surgeries some risks are there and any unforeseen event that may crop up during surgery should be accepted with a smile do not hold much water in the present age. When there is no denial of the fact that intubation failed after several unsuccessful attempts which in its turn rendered the gall stone operation for which the complainant got himself admitted under the Ops abandoned, it was not proper on the part of the Ops to avoid the responsibility by putting up some pleas which are not at all acceptable. We do support the contention of the Ld. Advocate for the Ops that complainant must prove his allegations by producing cogent and reliable evidence and that the complainant case must stand independently. At the same time, we are not unmindful to the proposition that in order to succeed in a case under Consumer Protection Act, degree of proof is not similar to that of a court proceeding of civil nature. Keeping in mind this proposition we are of opinion that the materials that have come before this Commission is sufficient for the purpose of the Act and that the present case may be adjudicated upon those materials. From the foregoing discussions we are constrained to hold that the manner in which the operation of the complainant was abandoned and subsequently the complainant was released by the Ops tantamount to both deficiency in service and medical negligence as claimed by the complainant. In this regard the plea taken by the OP No. 2 to the effect that it was the anaesthetist, who inserted the pipe inside the throat of the complainant, should be taken into task does not hold much water as admittedly under the leadership of the OP No. 2 the operation was being conducted. The State Commission, therefore, directed the Appellants to jointly and severally pay the Respondent (i) Rs.77,023/- towards expenditure upto 30.05.2001; (ii) Rs.70,000/- as damages; and (iii) Rs.10,000/- as litigation costs within a period of 45 days from the date of the communication of the order. 5. Being aggrieved by the above order, the present first appeal has been filed. 6. Learned Counsel for the Appellants was present. Neither Respondent nor his counsel was present. However, since the service is complete, the case was heard ex-parte. 7. Counsel for the Appellants made oral submissions, wherein he reiterated that there was no medical negligence or deficiency in service on the part of Appellants. Respondent problem of having a stone in the gallbladder was correctly diagnosed and prior to the surgery he was subjected to the required diagnostic and other tests, including pre-anesthesia tests. However, it is not standard medical procedure in the case of pre-anesthesia test to check for any structural abnormality in the throat. In the instant case, the Respondent had a pre-existing anatomical problem in the structure of his throat, because of which it was not possible to conduct successful intubation for anesthesia. This is known to occur in some cases and it was for the Respondent to have informed the Appellants about this pathological problem. The unfortunate injury to his throat because of the unsuccessful intubation was, therefore, not as a result of any medical negligence or deficiency in service since the Appellants had taken all possible steps as per standard medical procedures. The operation was rightly abandoned in the interest of Respondent health and thereafter the Respondent was treated by an ENT specialist following detailed tests, including a CT scan confirming that there was a structural problem inside the throat. Further, the Respondent has not discharged his burden of proving medical negligence against the Appellants through any expert evidence in his support. The State Commission, therefore, erred in concluding that there was medical negligence on the part of Appellants without appreciating the above facts. 8. We have considered the submissions made by learned Counsel for the Appellants and have gone through the evidence on record. It is an admitted fact that the Respondent was admitted for gallbladder surgery in Appellant/Institute and as a part of the anesthesia procedure a cylindrical pipe was inserted inside his throat and since it could not be placed in the desired position despite several attempts, the operation had to be abandoned. It was later confirmed that the intubation was unsuccessful because of a jutting cartilage inside the throat which was a pre-existing structural problem in the Respondent throat. Appellantscontention that it was for the Respondent to have disclosed this problem to them does not convince us because there is no evidence whatsoever that Respondent was ever aware about this structural defect in his throat. On the other hand, it was for the Appellants as medical professionals to have got all the tests done and once there was a problem with the intubation, they should not have made repeated attempts to thrust the pipe, which resulted in serious injuries leading to other complications. From the evidence on record, we note that though the Appellants did get the Respondent examined by an ENT specialist, thereafter once the problem was diagnosed he was not treated for the same but discharged. It was under these circumstances that Respondent had to seek treatment for his problem at the Calcutta Medical Research Institute from Dr.Milon Kumar Chakraborty. We also note from the affidavit filed in evidence by the above Doctor that the Respondent had developed a life threatening condition because of the pharyngeal tear close to larynx and multiple air filled cavity in Appellant No.1/Institute and that even after his treatment at Calcutta Medical Research Institute, some problems continued. Keeping in view the above facts, we agree with the finding of the State Commission that the due and reasonable care was not taken by the Appellants in the treatment of the Respondent while intubating the cylindrical pipe in connection with the anesthesia. While the problem was apparently caused because of a structural defect in the Respondent throat, severe damage could have been averted or minimized if the Appellants had been more sensitive and careful and not insisted in pushing the tube several times despite knowing that there were problems. There is no other explanation for the extensive and severe injuries caused inside the Respondent throat. We are also unable to accept the contention of the Appellants that the onus was on the Respondent to have disclosed the relevant facts regarding structural defects since there is no evidence that he was aware of this problem. If indeed he had been aware, there was no reason for him to have withheld this fact. 9. In view of the above facts, we agree with the order of the State Commission that Appellants did not exercise the reasonable degree of care and caution in the treatment of the Respondent which amounts to medical negligence and deficiency in service as is well settled by a number of judgments of this Commission as also of Honle Supreme Court of India, including in Indian Medical Association Vs. V.P. Shantha [(1995) 6 SCC 651]. We, therefore, uphold the order of the State Commission directing the Appellants to jointly and severally pay the Respondent a total amount of Rs.1,57,023/-. 10. Counsel for the Appellants state that Appellants had deposited a total sum of Rs.85,000/- i.e. Rs.35,000/- with this Commission at the time of filing of present appeal and Rs.50,000/- with the State Commission in compliance of this Commission order dated 08.07.2009. If that be so, this Commission and the State Commission are directed to release the aforesaid amounts with accrued interest to the Respondent. The Appellants are directed to jointly and severally pay the Respondent the balance amount within a period of six weeks from the date of this order.