1.       The two Revision Petitions (RPs) have been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the common order dated 03.03.2016  of the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as the ‘State Commission’), in :

1. First Appeal (FA) No.155/2015 in which order dated 12.12.2014 of District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred to as District Forum) in Consumer Complaint (CC) no 24/2012 was challenged, inter alia praying to set aside the impugned order passed by the State Commission.

2. First Appeal (FA) No.349/2015 in which order dated 12.12.2014 of District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred to as District Forum) in Consumer Complaint (CC) no 24/2012 was challenged, inter alia praying to set aside the impugned order passed by the State Commission and modify the District Commission’s order for enhancement of compensation.

2.       Notice was issued to the Respondent(s) on 19.09.2016.  Parties filed Written Arguments/Synopsis on 22.11.2022 (Respondent-1 to Respondent-3), 17.08.2023 (Respondent-4) and 29.12.2022 (Petitioner).

3.       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: -

Late Jatinder Kumar, the husband of the Complainant, was suffering from Non-Hodgkin's Lymphoma (NHL) and was admitted to OP-1 (Hospital) on 30.05.2011 and discharged on 20.06.2011 with assurances from the doctors that his ailment was curable with chemotherapy. On 29.07.2011, the patient visited the hospital for his third chemotherapy session. After completion of the session, an attempt to change the catheter failed, leading to a referral to the surgery unit-1 of OP-1. At the surgery unit, both a junior doctor and a third-year medical student, were unable to change the catheter. It was explained to the Complainant that there was a urinary infection, and the catheter needed to be directly connected to the urine bladder through minor surgery by a senior surgeon. The patient was then referred to the emergency ward, where OP-2 (Dr. Anju Bansal), a junior doctor, was on duty. The Complainant requested OP-2 to call a senior doctor to perform the procedure, but OP-2 refused and conducted the surgery herself. The patient was discharged around 10.30 p.m. During the night, the patient experienced extreme discomfort due to the inability to pass urine. On 30.07.2011, around 5 a.m., the Complainant returned to the hospital's Emergency Ward and explained the situation to OP-2. Allegedly OP-2 attempted multiple times to reconnect the catheter to the urine bladder but was unsuccessful. An ultrasound of the patient's abdomen was then recommended, and the patient was referred to the Department of Ultrasonography where Dr. Anshu informed the Complainant that the patient's condition was critical, as there was a significant hole in his urinary bladder, and no fluid was present in the bladder. Following examination and discussions, the patient was transferred to a room and later to the Emergency Ward. OP-3 (Dr. P.S. Nain) informed the Complainant that the patient's bladder was injured and a minor surgery was necessary. After approximately 2 hours in the operating room, the patient was brought out and put on a ventilator. His condition continued to deteriorate, and his chemotherapy was halted. Tragically, the patient passed away on 04.10.2011.

4.       Vide Order dated 12.12.2014, in the CC no. 24/2012 the District Commission has :

(i)      allowed the complaint and directed OP-1 to OP-3 to pay Rs. 3,00,000/- to the complainant @9% interest p.a. on account of compensation, jointly or severally;

(ii)     directed OP-1 to OP-3 to pay  Rs. 7000/- as litigation expenses, jointly or severally;

(iii)    OP-4 was directed to reimburse the claim paid by OPs.

5.       Aggrieved by the said Order dated 12.12.2014 of District Commission, Petitioner appealed in State Commission and the State Commission vide order dated 03.03.2016 in FA/155/2015 has allowed the OPs’ appeal and set aside the District Forum’s order; in FA/349/2015, State Commission has dismissed the appeal of the complainant/petitioner for enhancement of compensation.

6.       Petitioner has challenged the said Order dated 03.03.2016 of the State Commission mainly on following grounds:

1. The Commission's failure to consider the facts and evidence presented by the petitioner/complainant led to an incorrect decision. Crucially, the Commission did not give due weight to the report from the Board of Doctors, which substantiated the complainant's allegations of medical negligence by OP-2 and OP-3. This report clearly highlighted the negligence of OP-2, a second-year surgery student, who conducted a procedure independently on an immunosuppressed patient, resulting in severe complications. The statements made by OP-2 and OP-3 further supported these findings.

2. The statements provided by OP-2 and OP-3 indeed support the findings of the Board of Doctors and substantiate the claim of medical negligence. OP-2 openly acknowledged performing the surgery independently, without any mention of supervision by a senior doctor. OP-3, on the other hand, did not provide any statement suggesting that OP-2 had conducted the surgery under his advice or supervision. These statements clearly indicate that OP-2 carried out the surgical procedure on the patient independently, even though the patient's critical condition required the involvement of a senior medical professional. Importantly, the OPs did not contest these facts in their pleadings, effectively admitting to the negligent actions of OP-2.

3. Despite two other doctors refusing to perform the complex Suprapubic Cystostomy (SPC) Surgery due to its complexity, OP-2 proceeded independently, leading to a substantial injury to the patient's urinary bladder. Moreover, when the patient's condition deteriorated, and the petitioner/complainant requested the involvement of a senior doctor, OP-2 persisted in unsuccessful attempts to connect the catheter to the urinary bladder, ultimately causing harm to the patient. This demonstrates a disregard for the risks associated with the surgery and a failure to seek senior supervision, which unquestionably amounts to negligence.

4. The State Commission failed to consider a critical aspect of this case. After the ultrasound report revealed bladder injury, OP-3, a General Surgeon, conducted the surgery himself, even though it should have been performed by a Senior Doctor from the Department of Urology. This decision to self-perform the surgery by OP-3, seemingly to cover up his own omission and protect OP-2, reflects elements of negligence. Additionally, the State Commission erred by not taking into account that the compulsory chemotherapy treatment was interrupted due to the OPs’ negligent actions. This interruption not only increased the patient's suffering but also contributed to his eventual mortality. These factors should have been carefully considered in reaching a fair judgment.

5. The State Commission exhibited bias in its judgment by placing undue emphasis on the patient's failure to report to the OPs on 18.08.2011 after the surgery, implying negligence on his part. However, it failed to take into account that the patient, who was already afflicted by cancer, had been placed on a ventilator due to the negligent actions of the OPs. Furthermore, the patient's previous communication dated 10.08.2011 to the hospital authorities had gone unanswered. Given these circumstances, it is unreasonable to expect the patient to continue treatment at the same hospital that had previously endangered his life. Moreover, the State Commission erred in its reliance on the undisclosed cause of death as the basis for asserting that there was no proof of the SPC procedure contributing to the morbidity. The board of doctors' opinion and the statements provided by OP-2 and OP-3 unmistakably indicate negligence on their part during the SPC surgery, leading to the patient's reliance on a ventilator for a substantial duration. This negligence resulted in financial losses, mental distress, and posed a grave risk to the patient's life. Even if the patient eventually succumbed to NHL (Non-Hodgkin's Lymphoma), this should not absolve the OPs of their responsibility for the negligent SPC surgery, which imperiled the life of a cancer-afflicted patient.

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.

(i)      The counsel representing the respondents (OP-1 to OP-3) presents a comprehensive argument in defense, that the patient (Mr. Jatinder Kumar) was admitted to D.M.C. and Hospital under the care of Dr. Gagandeep Singh, Head of Neurology, due to specific health issues. These issues included lower backache, limb weakness, and urinary problems. Despite initial inconclusive tests, an MRI hinted at possible spinal tuberculosis. Subsequent complications led to a diagnosis of Grade III Infective Colitis, for which surgery was recommended but declined. Eventually, a dorsal laminectomy and biopsy revealed malignancy, specifically Non-Hodgkin's Lymphoma, which was later confirmed in the spine. Chemotherapy was initiated, but a bone marrow biopsy indicated widespread cancer. The patient was discharged with a follow-up for chemotherapy, with no guarantees of a cure. Importantly, the petitioner/complainant did not allege negligence in the initial treatment.

(ii)     The counsel goes on to address subsequent events. On July 6, 2011, the patient underwent chemotherapy, which was followed by a neurological deterioration. The petitioner did not raise any claims of negligence concerning this specific admission. On July 30, 2011, Suprapubic Catheterization was performed to address urinary problems, and the only concern raised pertained to the choice of the performing doctor. A fourth admission on July 31, 2011, was necessitated by urine retention, leading to exploratory surgery and catheterization, which were complicated by the patient's poor prognosis. The hospital disputes these claims, asserting their adherence to standard protocols and the employment of qualified medical professionals. Key areas of contention include alleged delays in chemotherapy initiation, patient non-compliance with follow-up visits, allegations of ulterior motives in the complaint, and the uncertainty surrounding the cause of death due to the absence of a post-mortem examination.

(iii)    The counsel for Respondents (OP-1 to OP-3) relied on several cases in his written synopsis, some of which are reproduced below:-

(a)      In the case of Dr. R.C. Sharma v. Jage Ram 2003 NCJ 303 (NC), it was held that surgeon during operation removed prostrate on the suspicion of cancer- medical expert opined that the opinion of the operating surgeon at the time of operation matters and is the final say- no medical negligence.

(b)     Similarly, in the case of K.S. Bhatia v. Jeevan Hospital 2004 NCJ 37 (NC),it was held that

" ........in cases of medical negligence specific act of negligence has to be alleged and then proved as also as to how that amounts to negligences. …… .

13. As per settled law on the subject complaint has to allege which action of the OPs was not as per accepted medical practices. What was done which should not have been done or what was not done which should have been done. This has to be supported by expert evidence or medical literature on the subject. ……”

(c)      Furthermore, the case of Vijay Dutt v. R.D. Nagpal & Anr. 2014 (3) CLT 9 (NC) it was held that

"1. ……doctors cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured…..”

(d)     In the case of Mrs. Nalini v. The Chief Cardiac Surgeon, Manipal Hospital & Anr. 2012 (1) CLT 427 (NC), it was held that

“14. ……the medical negligence cannot be inferred only on basis of the entries in the medical papers and on basis of affidavit of the appellant. Admittedly, the appellant is a housewife and has no necessary knowledge of medical science. ……..”

(e )     Dr. Samir Rai & Anr. V. Medanta Hospital & Ors. CC/173/2011 NCDRC, (11.08.2020)

(iv)    The counsel for the petitioner/complainant argues that the patient was under the care of the OPs (OP-1 to OP-3) for Non-Hodgkin's Lymphoma from May 30, 2011, to June 20, 2011. The hospital assured that chemotherapy would cure the disease, leading to continued treatment. However, complications arose during the third chemotherapy session when a catheter replacement was needed. Junior doctors attempted the procedure but failed, suspecting a urinary tract infection. The patient was referred to the emergency ward, where a medical student attempted the procedure and discharged the patient. Subsequently, on July 30, 2011, the patient returned to the emergency ward, and it was discovered that there was a significant hole in the urinary bladder and no fluid inside. Senior doctors were called, and surgery was performed, but not by a urology specialist as needed. The patient was placed on a ventilator in the ICU from July 30 to August 6, 2011. Despite pleas, the hospital did not transfer the patient to a urology specialist. The petitioner incurred substantial expenses for the treatment, and the patient suffered from various complications, including vocal cord issues, a severe bed sore, chest infections from the ventilator, cessation of chemotherapy, lung secretion, and breathing problems. The counsel further argues that chemotherapy, a critical part of cancer treatment, was halted due to alleged negligence, ultimately leading to the patient's death on October 4, 2011. The patient, a 40-year-old schoolteacher earning Rs. 25,000 per month, and the petitioner, experienced significant mental distress due to the OPs' alleged negligence.

(v)     The counsel for respondent-4/OP-4 contends that the petition lacks maintainability as there is absence of a direct contractual relationship between the complainant and OP-4. That the Hospital holds a professional indemnity (Medical Establishments) Policy with OP-4 and according to the terms and conditions of this policy, OP-4 is obliged to indemnify the insured hospital. However, this liability is contingent upon specific stipulations, and it materializes only if the hospital is deemed liable for any single accident within the defined policy duration. The counsel asserts that it is the hospital's claim that OP-4 would scrutinize for indemnification.

(vi)    Furthermore, the counsel for respondent-4/OP-4 references a verdict of the Hon'ble Supreme Court in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukharjeen 2009 NCJ 865 (SC), which establishes that the court is not bound by expert opinions, as such opinions are advisory in nature. They also contend that the available evidence is insufficient to firmly establish that the hospital acted negligently. The counsel invokes the Hon'ble Supreme Court's decision in the case of Jacob Mathew and other similar cases, asserting that mere negligence, error of judgment, or accidents do not suffice to prove medical negligence. Negligence arises from a breach of duty involving either the omission of what a reasonable person would do, or the commission of an act that a prudent and reasonable person would abstain from.

(vii)   The counsel for Respondent-4/OP-4 relies on several cases-

(a)      Smt. Savita Garg vs The Director, National Heart Institute (2004) 8 SCC 56

“10. …..once a claim petition is filed and the claimant has successfully discharged the initial burden……….. justify the same and it is not possible for the claimant to implead all of them as parties”

(b)     Kusum Sharma & Ors. v. Batra Hospital 1(2010) CPJ 29(SC)

“94. …… i. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those…..

XI. The medical professionals are entitled to get protection….. be paramount for the medical professionals.”

(c)      Jacob Mathew v. State Of Punjab & Anr. 2005(3) CPR 70(NC)

“25. ….. The classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence.……… Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial.…..which it is suggested as should have been used.”

(d)     C.P. Sreekumar(Dr.) MS(Ortho) v. S. Ramanujam (2009) 7 SCC 130

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew's case the onus to prove medical negligence lies largely on the claimant……It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

(e )     Nizam Institute of Medical Science v. Prasanth S. Dhananka & Ors. 2009(3) CPR 81 (SC)

“20. The broad principles under which medical negligence as a tort have to be evaluated, have been laid down in the celebrated case of Jacob Mathew vs. State of Punjab & Anr………… doctor to guarantee a successful result and the only assurance that he "can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.”

8.       We have carefully gone through the orders of the State Commission, District Forums, other relevant records, in particular the report of the Medical Board constituted as per orders of the District Forum, case laws relied upon by the parties and rival contentions of the parties. The three member Board of Doctors (BODs) consisted of a Senior Medical Officer (SMO), Civil Hospital Ludhiana (Govt. Hospital), a Specialist and Radiologist, who heard both the complainant and the OP doctors and examined the relevant medical records and recorded statements of the doctors and gave a unanimous opinion, the relevant portion of which is reproduced below:-

    “After carefully going through all the relevant medical record, statements of the dealing doctors, Board of Doctors is unanimously of the opinion that patient Jatinder Kumar was diagnosed as stage IV NHL under treatment require supra public drainage for passage of Urine which was done at DMC, Ludhiana by Dr. Anju Bansal IIIrd Year Resident, General Surgery. Ordinarily SPC is a minor surgical procedure done in emergency, but in this case the patient was immune-compromised and was having neuropathic bladder injury at the rate of ultra-operative and post-operative complications is known to be higher and ideally in such high risk cases SPC should have been performed by senior surgeon or under his supervision with Anesthetic backup. As a complication of the above mentioned procedure, the patient had to undergo explorative Laprotomy and around 1-2 litres of pus was drained out and during the procedure following which patient remained in ICU on ventilator support for a considerable period of time, following which the definite treatment of Non-Hodgkin Lymphoma (Chemotherapy) was interrupted. So, in the opinion of the members of the board in this case, SPC and Later explorative laparotomy increased the morbidly and contributed to the mortality.”

9.       District Forum relying upon the report of the BOD’s held OP-1 to OP-3 responsible for deficiency in service. However, State Commission differed with such findings, observing:

     “13...Firstly, with regard to the competency of Dr Anju Bansal was IIIrd year MS student of general surgery, the SPC is a minor surgery and is normally done by the resident students. To this extent, there is affidavits of Dr. Anju Bansal Ex. R-B, Dr. P.S. Nain Ex. R-C. In case there was some mistake or the patient was not properly handled by Dr. Anju Bansal on 30.10.2011 the patient was again referred to Surgical Unit I of the hospital where under the supervision of Senior Doctor explorative laparotomy was done and catheter was properly placed. No doubt that the patient was intubated upto 6.8.2011 but the patient was properly treated and was discharged from the hospital on 11.8.2011 in a stable condition. At the most, if it is treated as an error of judgment, it has been held by the Hon'ble National Commission that error of judgment is not a case of medical negligence………The Board of Doctors have stated that Chemotherapy cycle was interrupted. As is clear from the facts of the case, the last chemotherapy was given on 30.7.2011 and it is admitted fact that there should be three weeks difference between the chemotherapy cycle and next chemotherapy was recommended to the patient for 18.8.2011 i.e. exactly after 20 days. However, it was the option of the patient and the patient did not report for chemotherapy on 18.8.2011 with OP hospital. Therefore, opinion given by the Board of Doctors that Chemotherapy cycle was interrupted, which increase the morbidity is not corroborated from the record. During the course of arguments, the counsel for respondent-1/complainant was also unable to explain that Dr. Anju Bansal, who was IIIrd year student of General Surgery was not competent Doctor to go for minor procedure of SPC. It is a different matter that later on the patient had problem and then explorative laparotomy was done but ultimately, the patient was treated well and was discharged from the hospital in a stable-condition, therefore, it cannot be said that SPC was not properly done or the patient was not properly looked after…….

       14……The patient died in the month of October, 2011 whereas after 11.08.2011, the patient had not reported to this hospital whether SPC or explorative laparotomy increased morbidity is not corroborated from the report of the Doctors because Doctors have not referred the treatment taken by the patient from Guru Granth Singh Medical College and Hospital, Faridkot and what was the cause of death. Since the patient was suffering from spine tumor and in those cases chances of death are quite higher, however, with the treatment the life can be prolonged……

      15.The opinion of the Board of Doctors is just opinion evidence. It is not necessary that in case the Board of Doctors opined negligence, then it is binding upon the Court/Forum. The Court/Forum is to evaluate the entire evidence and then come to the conclusion that findings given by the Board of Doctors is co-relating with the evidence on the record and whether entire evidence was appreciated by the Board of Doctors before coming to the final conclusion. However, the learned District Forum has simply relied upon the opinion of the Board of Doctors without appreciating the other evidence on the record and without giving analytical appreciation of the evidence on the record how SPC and explorative laparotomy had increased the morbidity and how the circle of chemotherapy was interrupted when the patient was recommended for chemotherapy after 20 days of the last chemotherapy. The conduct of the patient has not been appreciated by the District Forum that he did not report to the hospital on required day i.e. 18.08.2011 and started to take the treatment from some other hospital. Record of that hospital was not produced before the Board of Doctors, therefore, it was not appreciated by the Board of Doctors and was not produced even before the District Forum. Therefore, what was the cause of death has not come. There is no evidence that SPC or explorative laparotomy had added to the morbidity. In these circumstances, the findings so recorded by the District Forum cannot be sustained and are liable to be set-aside.”

10.     We have carefully gone through the above stated observations of State Commission for not relying upon the report of BODs, but do not find it justifiable. It was a well constituted Board of Doctors, consisting of experts and senior doctors of Government Hospital, who have given this unbiased clear expert opinion on the negligence on the part of respondent doctors. No doubt it is left to the courts/commission whether to accept or not any such opinion of such expert BODs, in the instant case, the BODs having been appointed as per orders of District Forum, consisting of expert/senior Doctors, given an unbiased clear opinion, we find no reason for not accepting such expert opinion as an important piece of evidence showing negligence on the part of OPs. Hence, we are of the considered view that State Commission went wrong in discarding the expert opinion of BODs and setting aside the findings of District Forum about medical negligence on the part of OP doctors. We have carefully gone through the orders of District Forum and note that District Forum had considered at length all the facts of the case and rival contentions of the parties as well as medical literature relied upon by the parties and have given a well-reasoned order. It is not correct that District Forum has given its findings simply based on expert opinion/report of BODs. It has duly considered other evidence also before it while concluding medical negligence on the part of OP doctors (OP-2 to OP-3) and OP-1 hospital was held vicariously liable for the acts of negligence on the part of OP-2 & OP-3. District Forum has also taken note of various case laws relied upon by the parties. Some of the observations/findings of District Forum, as contained in its order are reproduced below:

“16. It is apparently clear from the evidence of the complainant that husband of the complainant was suffering from N.H.L. (Non Hodgkin’s Lymphoma) and he remained admitted in New Dayanand Medical College & Hospital, Ludhiana and was operated upon by the concerned doctors and thereafter, he had been visiting for Chemotherapy regularly. It is also proved fact that on 29.7.2011, the patient visited the OP-l hospital for getting the third chemotherapy and thereafter, he was required to change the catheter for urine drainage and the same was tried to be changed/removed by the different doctors but they failed to do so and ultimately, the patient was referred emergency ward of the hospital of OPs where, Dr. Anju Bansal OP-2, student of M.S. 2^nd year was on duty and was present there who made her best efforts to change the catheter but she could not connect the catheter with urine bladder and ultimately, Dr. Anju Bansal had tried to connect the catheter with the urine bladder directly and made whole in the urine bladder. Perusal of the affidavit of Dr. Anju Bansal Ex.RB reveals that she has categorically deposed that the patient was having NHL (Non Hodgkin"s Lymphoma Stage-IV means cancer in spinal cord and this cancer is aggressive) and due to this reason, the patient was paraplegic which means no sensation of lower limb i.e. below the umbilicus, As the SPC (Suprapubic catheterization) was performed 5 cm above the pubic-symphysis which is much below the umbilicus. Thus, there was absolutely no need of any kind of anesthesia. She has further deposed that SPC was performed by her under the supervision of Emergency Consultant and it is to be performed as a routine procedure when the catheterization is not possible. She has further deposed that the patient Jatinder Kumar was treated as per the standard protocol contained in medical literature on the subject. There is no negligence or deficiency on her part and other doctors of D.M.C. & Hospital, Ludhiana in providing the treatment to Sh. Jatinder Kumar. Perusal of the affidavit of other Dr. P.S. Nain Ex. RC also reveals he has also deposed on the lines of deposition of Dr. Anju Bansal in her affidavit Ex. RB. However, perusal of affidavit of this witness Ex. RC reveals that he has never deposed that SPC (Suprapubic Catheterization) was done by Dr. Anju Bansal in his supervision. Rather, he has deposed that on 30.7.2011, patient was re-admitted (3^rd time) in oncology department and received 3^rd cycle of chemotherapy on 30.7.2011. When the patient was discharged first time on 20.06.2011 with urinary catheter in situ. He again came to D.M.C. & Hospital for Recatheterization. Doctor on duty posted in oncology department tried to catheterize the patient after removing previous urinary catheter, but failed. Further, this witness has deposed that general surgery consultation was taken for catheterization by oncology team. Patient shifted to surgery unit-1 ward for catheterization. Catheterization was tried by 1^st year and 3^rd year surgery resident, but failed and advised suprapubic catheterization. Patient shifted to emergency for suprapubic catheterization (SPC) by 1^st year and 2^nd year Surgey residents doctor. As SPC is a common procedure routinely done as an emergency procedure by the resident doctors posted in emergency duty, which is monitored by the Emergency Consultant. On examination bladder was distended and easily palpable. Under all aseptic precautions, SPC was done and suprapubic catheter was fixed in place. Further, he has deposed that the patient was shifted to ward in stable condition at 10:30 PM and discharged from oncology department on 30.07.2011 and advised follow up after 3 weeks, (i.e. 20.08.2011).

17. So it is apparently clear from the affidavit of this witness namely Dr. P.S. Nain as Ex. RC that he has never deposed that any SPC was done by Dr. Anju Bansal i.e. OP-2 on his advise or under his supervision. Further, perusal of the evidence of OP-1 to OP-3 reveals that they have furnished the affidavit Ex. RA of Dr. Sandeep Puri, who is the Medical Superintended of D.M.C. & Hospital, Ludhiana, who simply deposed qua the admission of the patient Sh. Jatinder Kumar and the treatment given to him on the basis of the record which was available with him. But this witness of OP-l to OP-3 has never deposed that SPC was done by Dr. Anju Bansal in his presence or at his instructions or under his supervision knowing well that she is the student of second year surgery.

18. From the history of the patient and treatment charts which have been placed on record by the OP-l to OP-3 from 11.06.2011, it is apparently clear that there was an injury in the urine bladder of the deceased Jatinder Kumar, as a result of which, he was referred to Emergency OT and even to SICU, where he was treated for urine bladder injury. It is also a proved fact on record that keeping in view the serious condition of the patient, he was put on ventilator for number of days. Record of the patient maintained by the OP-l reveals that the efforts were made by the concerned doctors to save the life of the patient knowing well that injury on the urine bladder has been caused by their attendant Dr. Anju Bansal, student of second year surgery and thereafter, after finding the condition of the patient as serious, he was shifted to emergency ICU where, he remained in the ventilator for about 7 days and thereafter, he was shifted from the ventilator and was discharged on 11.08.2011 Ex. R l5. Though, surgery of the patient which had been got done from Dr. Anju Bansal was to be performed by Dr. P.S. Nain who did not attend the patient at the time, when the catheter was to be inserted in the urine bladder of the patient. It is also proved on record that due to the injury on the urine bladder which resulted in the serious condition of the patient and due to which, process of chemotherapy was not performed and deceased Jatinder Kumar was not come forwarded for 4th chemotherapy and later on, he died.

19……However, the dispute between the parties is not qua the treatment of the patient Jatinder Kumar qua the NHL. Rather, the dispute is qua the act of negligence on the part of the Dr. P.S. Nain who did not attend the patient personally and Dr. Anju Bansal, who acted in a manner as if she was a senior doctor of OP-l despite knowing well that she is a student of 2^nd year in surgery and she inserted the catheter in the urine bladder by causing a hole which caused injury to the patient and resulted in a serious condition of the patient due to collection of Pus. So, the medical literature which the OP-l to OP-3 have placed on record qua the disease of NHL is no help to the defence plea of the OP-l to OP-3.

23.So, it is apparently clear from the report of the Board of Doctors that SPC was to be performed by the senior doctors or under their supervision, whereas, in the present case, SPC was got conducted by the OP-2 Dr. Anju Bansal, who is only a student of 2^nd year of surgery and she was not a senior doctor in the hospital of OP-1. Further, it is a proved fact that SPC was not done by the said Dr. Anju Bansal Op-2 under the supervision of senior doctors, but she handled the patient in an ordinary and casual manner and caused injury in the urine bladder of the patient Jatinder Kumar by creating a big hole while inserting a catheter in the urine bladeer which clearly proves the act of negligence on the part of Dr. Anju Bansal OP-2. Since, Dr. P.S. Nain i.e. OP-3 did not come forward prior to the insertion of catheter to the patient Jatinder Kumar. Rather, the OP-2 attended the patient independently and thereafter, when the things had gone out of her control and condition of the patient became with complication of Pus and fluid and then OP-3 Dr. P.S. Nain rushed to patient to save his life where he could not. Act of negligence stands proved against OP-2 and OP-3 and OP-1 is also vicariously liable for the negligence act on the part of OP-2 and OP-3……”

11.     Hon’ble Supreme Court in Jacob Mathew (Supra) has held that “degree of negligence in criminal negligence and negligence in civil law are jurisprudentially different - to fasten liability in criminal law, degree of negligence has to be higher than negligence enough to fasten liability for damages in civil law. Negligence which is neither gross nor of higher degree may provide a ground for action in civil law. Hence, it is clear that for negligence under civil law, negligence need not be gross or of a higher level, which are essential to fasten liability in criminal law. Hon’ble Court in the Jacob Mathew Case (supra) further stated that there is a marked difference as to the effect of evidence viz. proof. In civil proceedings, a mere preponderance of probability is sufficient, and defendant is not necessarily entitled to the benefit of every reasonable doubt. At the same time, in a claim of medical negligence, it is enough for the defendant to show that the standard of care and skill attained was that of an ordinary competent medical practitioner exercising an ordinary degree of professional and that test for medical negligence laid down in Bolam case was applicable in India. Hon’ble Court also observed that the essential components of negligence, as recognized, are three “duty”, “breach” and “resulting damage” that is to say-

i.        The existence of a duty to take care, which is owed by the defendant to the complainant.

ii.       The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and

iii.      Damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant.

12.     In the Savita Garg case (supra), Hon’ble Supreme Court 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…………..”

13.     In Nizam Institute of Medical case (Supra), Hon’ble Supreme Court observed as under :
 

“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.”

14.     In Martin in F.D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC 1, Hon’ble Supreme Court held as under :

".......The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.”

“34. A medical practitioner is not liable to be held negligence simply because things went wrong from mischance or misadventure ..... He would be liable only when his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

“36.  An error of judgment may or may not be negligent.  It depends on the nature of the error.”

15.     As regards liability of OP-4 Insurance Company, District Forum has directed OP-4 to reimburse the claim so paid by OP-1 to the complainant. In this regard, we have considered the contentions of OP-4, that the Hospital holds a professional indemnity (Medical Establishments) Policy with OP-4 and according to the terms and conditions of this policy, OP-4 is obliged to indemnify the insured hospital. However, this liability is contingent upon specific stipulations, and it materializes only if the hospital is deemed liable for any single accident within the defined policy duration. The counsel asserts that it is the hospital's claim that OP-4 would scrutinize for indemnification. Hence, if OP-1 hold a valid policy and is held liable for negligence by competent Court/Commission, it is for OP-1 to formally lodge a claim with OP-4 Insurance Company by observing the due process and submitting requisite documents, whereupon it is incumbent upon OP-4 Insurance Company to consider such claim on merits in accordance with the terms and conditions of policy held by OP-1 and if found eligible, disburse the same. Hence, District Forum went wrong in directing OP-4 Insurance Company straightaway to reimburse the claim so paid by OP-1. To the extent, the order of District Forum needs modification.

16.     In view of the foregoing, we are of the considered opinion that State Commission went wrong in setting aside the order of the District Forum and allowing FA/155/2015 filed by OP-1 to OP-3. Hence, we allow RP/1924/2016, set aside the order of State Commission in FA/155/2015 and restore the order of District Forum dated 12.12.2014 in CC/24/2015, with modification with regard to liability of OP-4 Insurance Company as stated in para 15 above. As regards FA/349/2015 filed by complainant for enhancement of compensation, we are of the considered view that District Forum after considering the entire facts and circumstances of the case, have awarded a reasonable amount of compensation. As the FA/349/2015 filed by the complainant was dismissed on the grounds of FA/155/2015 having been dismissed, the State Commission did not consider the case of Complainant for enhancement of the compensation. We have carefully gone through the RP/1925/2016 filed by complainant for enhancement of compensation. Reasons/grounds for enhancing the compensation from the one awarded by District Forum are not found convincing/acceptable. Hence, RP/1925/2016 is dismissed and order of District Forum with respect to quantum of compensation is upheld. All payments as awarded by District Forum, to be made by OP-1 to OP-3, who are held liable jointly and severally, within 2 months of date of the order, along with simple Interest @9% p.a. as per order of District Forum till the date of actual payment. OP-1 shall be free to file its claim to OP-4 Insurance Company within one month of disbursement of amounts as per the order to the complainant/petitioner herein. Thereafter OP-4 Insurance Company shall process such claim on merits within a maximum of two months and disburse the eligible amount to OP-1

17.     The pending IAs in the case, if any, also stand disposed off.