.K. JAIN, J. (ORAL) 1. Late Shri Hardutt, while attending to his normal duties in the evening of 06-11-1999, all of a sudden felt uneasy and became semi unconscious. The right half of his body got paralysed and he was not able to move his right limbs. He was taken to the hospital of the opposite party-Dr. Pawan Goyal in Rewari. The case of the complainant is that Dr. Pawan Goyal told the attendants that Hardutt was suffering from severe heart attack and required immediate admission in the hospital. He was admitted in the hospital by Dr. Pawan Goyal. The patient was referred to Gurgaon for CT scan, since Rewari did not have facility for such an investigation. The report of the CT scan read as under: eft hermispheric acute infarct in Lt. MCA territory Calcified headed granuloma in rt. occipital region. The patient was again brought to the hospital of Dr. Goyal and was treated there till 1:20 AM on 09-11-1999 when the attendants of the patient were advised to shift him to Sir Ganga Ram Hospital, Delhi and he was discharged from the hospital. The deceased is stated to have expired while being taken to Delhi in the night intervening 08-11-1999 & 09-11-1999. Alleging deficiency in service provided by the opposite party-doctor, a complaint before the State Consumer Disputes Redressal Commission was filed by Smt. Roshani Devi, widow of the deceased. 2. The complaint was contested by the opposite party, Dr. Pawan Goyal, who was running his hospital under the name & style of City Heart Clinic & Medical Centre. He, inter alia, stated that when the patient was brought to his hospital, he clearly explained to the attendants that he was suffering from paralysis due to cerebral vascular accident (CVA) and for that purpose his CT scan was necessarily required. The patient was then taken to Gurgaon for CT scan. This is also the case of the respondent, Dr. Pawan Goyal that Dr. Bhatia, who carried out the CT scan of the patient at Gurgaon, told the attendants that the patient was having serious brain stroke in his left side which had caused paralysis on the right side and, therefore, should be taken to a hospital to Delhi but the attendants told him that they could not afford to take the patient to Delhi and would like to take him back to the hospital of Dr. Pawan Goyal. This is also the case of Dr. Pawan Goyal that there had been no negligence on his part and that as an MD, Doctor, he was competent to treat the patient for the ailment diagnosed in the CT scan. This is also his case that the ailment of the patient, as diagnosed in the CT scan, did not require surgical intervention. He also claimed that the treatment provided by him to the patient was the same which would have been provided in any other hospital and it was at the insistence of the family members that he agreed to treat the patient, though he did not have facility for the neurological surgery in his hospital. 3. The first question which comes for consideration is as to whether the respondent-Dr. Pawan Goyal had misguided the family members of the patient by telling them that he was suffering from a heart disease. There is no written prescription or any other document from Dr. Pawan Goyal, conveying it to the family of the deceased that he was suffering from a heart ailment. We have also perused the affidavit of Dr. Deepak Bhatia who had examined the CT scan of deceased Hardutt. In his affidavit, he has clearly stated that the findings of the CT scan were discussed by him with the attendants of the patient and they were told that the patient was having serious brain stroke on the left side, causing paralysis on the right side. Therefore, even if we presume for the sake of arguments that initially Dr. Pawan Goyal had told the family members of the deceased that he was suffering from heart disease, the report of CT scan, which was discussed with them by Dr. Deepak Bhatia, clearly revealed to them, the true state of affairs and they came to know that he was having a neurological problem and not a heart ailment. Moreover, the very fact that the patient was referred for CT scan clearly indicates that Dr. Pawan Goyal had rightly diagnosed the ailment in clinical evaluation of the patient and had referred him for CT scan for the purpose of confirming clinical diagnosis. Had he diagnosed it as a case of heart ailment there could be no question of referring the patient for undertaking a CT scan which was not relevant in the case of a heart ailment. 4. The main contention of the learned counsel for the complainant/appellant is that Dr. Pawan Goyal, not being a neuro physician or a neuro surgeon, was not competent to treat a patient suffering from such a serious neurological problem and his hospital did not have any facility for a neurosurgery and, therefore, he should not have treated the patient after the CT scan findings confirmed that he was suffering from CVA. 5. It has come in the affidavit of Dr. Bhatia that he has advised the family members of the patient to take him to Delhi for appropriate treatment but they told him that they could not afford the treatment in Delhi and, therefore, were taking the patient back to the hospital of Dr. Pawan Goyal. In view of the affidavit of Dr. Deepak Bhatia we cannot accept the contention that the family members of the patient would have been willing to take him to Delhi for further treatment. The affidavit of Dr. Deepak Bhatia also supports the case of the respondent that he agreed to treat the patient only at the insistence of his family members, since they were not in a position to take him to Delhi for treatment in a big hospital. Therefore, no negligence or deficiency in service can be attributed to Dr. Pawan Goyal on account of his having agreed to treat the patient in his hospital. It would be pertinent to note here that there is no material on record which would show that CVA necessarily required surgical intervention and could not have been treated with medicines. The case of Dr. Pawan Goyal, who has obtained post- graduation in medicine, rather, is that the treatment would have been same whether the patient was treated by him or any hospital in Delhi. While appearing before the Civil Surgeon, Dr. Pawan Goyal clearly stated that there was a high probability of death in the disease by which late Hardutt was suffering, the treatment for the disease was same everywhere and he had treated the patient accordingly. There is no material on record before us to show that the treatment given by Dr. Pawan Goyal was different from the treatment which as per the standard protocol should have been given to a patient suffering from CVA. Though he evaded the reply to the question before the Civil Surgeon, as to whether he had trained staff nurse, trained pharmacists, etc., he claimed that his hospital had all the necessary gadgets for the purpose. No material was placed before the State Commission which would show that the hospital of Dr. Pawan Goyal lacked the gadgets, machines and staff which were required to treat a patient of CVA by medicines. 6. More importantly, there is no material in the form of a medical opinion which would show that it was some deficiency in the treatment given by Dr. Pawan Goyal which led to his death. The complainant did not file any death certificate indicating the cause of death of the patient. The representative of the appellant who is present in the Court states that the patient died when they were taking him to Delhi on being discharged by Dr. Pawan Goyal from his hospital in the night. He further states that the patient was not taken to any hospital or to even a doctor for confirming the cause of his death. At this stage, the representative of the complainant states that in fact, when they felt, while taking the patient to Delhi that he had died, they returned to Rewari and went back to the clinic of Dr. Pawan Goyal who told them that he had died on account of CVA and that he had pneumonia in the night. However, learned counsel for the respondent denies that the dead body of the patient was brought back to the clinic of Dr. Pawan Goyal in the night. Be that as it may, the fact remains that there is no material on record which would indicate any deficiency in the treatment of the patient by Dr. Pawan Goyal. In other words, we do not find any material before us to show that had the patient been treated in a hospital in Delhi instead of being treated in the hospital of Dr. Pawan Goyal he would have survived. If the patient is given right treatment but he does not respond to the treatment, the doctor cannot be blamed for his collapse. The duty of a doctor is to give the available treatment as per the diagnosis made by him and in his best judgment. The doctor cannot guarantee that the treatment would work and the patient would survive. The family of the patient, therefore, has to accept its fate, in a case where the doctor exercises his best judgment, treats the patient as per his capability but the patient does not survive, despite right treatment having been given to him. 7. As regards competence of Dr. Pawan Goyal to treat the patient, we cannot accept the fact that a patient suffering from a neurological ailment shall never be treated by a doctor who is not a neuro physician or neuro surgeon. Once a doctor explains the ailment to the patient or his family members but they insist on treatment by the very same doctor, he cannot be blamed at a later stage if despite right treatment be given to the patient he does not survive. If we accept the contention that the patient should not have been treated at all despite request of the family, that would result in a situation where a person suffering from such ailment would not get any treatment at a place where a neuro-surgeon is not available though it is possible to save his life, from the treatment given by a doctor, though qualified is not a neuro-physician/neuro-surgeon. 8. For the reasons stated hereinabove, we find no ground to interfere with the view taken by the State Commission. The appeal is devoid of any merit and is, accordingly, dismissed.