This revision petition is directed against the order dated 14.2.2003 passed by Haryana State Consumer Disputes Redressal Commission, Haryana, Chandigarh (hereinafter referred to as the ‘State Commission’) vide which the State Commission has allowed the appeal of respondent/opposite party and dismissed the complaint.

Facts of the case are that -------

          Shri Sham Bir, aged about 53 years was taken by his family members for treatment to the Nursing Home of Dr. R. Mohindru who diagnosed it to be a case of Chronic Bronchitis with emphysema with carpulmorale with CO2 Narcosis and was admitted in the Nursing home on 18.11.1992.  However, but for a brief period when oxygen was administered, the condition of Sham Bir continued to deteriorate.  Request of the family members to either call a better specialist or refer the patient to a hospital did not elicit ready response from Dr. Mohindru, forcing them to insist that the patient be referred to a hospital since he had gone into coma.  It was only on their insistence that respondent/OP referred the patient to Holy Family Hospital on 21.11.1992.  Holy Family Hospital diagnosed it to be a case of celebral Malaria and tried their best to save his life.  The patient, however, expired on 23.11.1992 due to Cardio-Pulmonary  Arrest due to Acute  Anterior-Septal MI cardial infection commonly known as heart attack.  Alleging medical negligence, in particular wrong diagnosis and inordinate delay for referral on part of respondent/OP  (Dr.Mohindru),  widow of the deceased in her own capacity and also as the natural guardian of two minor daughters along with Satinder and Satish two sons of the deceased filed a complaint before the District

Consumer Disputes Redressal Forum, Faridabad seeking a compensation of Rs.5 lakhs. On contest by the respondent OP (Dr.Mohindru) the matter was adjudicated upon by the District Forum on the basis of evidence before them including oral evidence and cross-examination of the complainant.  The District Forum by a majority of 2:1 returned the finding that the OP doctor was negligent and deficient in service and allowed the complaint.  The minority order delivered by the President of the District Forum, however, held that the complainant failed to prove any payment to the OP for his services and further held that the diagnosis was correct and absolved the OP doctor of any liability on account of any medical negligence and carelessness and dismissed the complaint.

          Aggrieved upon the order of the two member majority order of the District Forum holding him liable for medical negligence and deficient in providing service, the respondent OP filed Appeal No.198 of 1999 before the State Commission. During the pendency of the Appeal, the widow of the deceased expired leaving her two sons and two daughters, who are before us now to pursue the matter.  The State Commission, as already stated, allowed the appeal of OP for lack of evidence and dismissed the complaint, which is under challenge in this Revision Petition.

          Referring to the order of the State Commission, learned counsel for the petitioner/complainant has contended that it is a sketchy/brief (one and half page) order, where as the State Commission was to exercise its Appellate jurisdiction against divided findings and orders of the District Forum each of which ran into more than eight pages.  The State Commission’s order does not refer to the voluminous documents/records which were before the District Forum and arbitrarily arrived at the conclusion that there is no evidence.  It does not at all discuss the documents relied upon and reasons stated by the District Forum in its order and why should they be disbelieved.  There is no application of mind.  Contending that the State Commission has failed to exercise its Appellate jurisdiction properly, he argues that on this ground alone the order should be set aside.

          Learned counsel thereafter has contended that while the deceased was suffering from cerebral malaria, the respondent wrongly diagnosed it to be a case of Chronic Bronchitis with emphysema with carpulmorale with CO2 Narcosis.  As has been rightly held by the two members of the District Forum, the OP did not carry out any test to arrive at his diagnosis.   He further aggravated the condition of the patient by not readily agreeing to the request of the family members of the deceased to refer him to a hospital.   Supporting the findings of the two members of District Forum, the counsel contends that for the reasons stated in their order, after elaborate discussion, there was no reason for the State Commission to interfere. 

On the dissenting order of the President of the District Forum, the learned counsel contends that the Hon’ble President has completely erred, in holding that the complainant, widow of the deceased having failed to produce the receipt of any payment to the OP doctor ; the case would not fall in the category of a consumer dispute.  He has believed that the OP doctor rendered free treatment to the deceased which is not true since the Nursing Home is being run for commercial purpose to earn money and not for charity.  Learned counsel contends that the other two members in their order have rightly rejected the plea of charity.

          The other point on which the Hon’ble President has totally gone wrong related to whether the patient was suffering from cerebral malaria and wrongly diagnosed by OP as Chronic Bronchitis with emphysema with carpulmorale with CO2 Narcosis.  Learned counsel contends that the Hon’ble President has wrongly believed the claim of the OP that he had given all the test report and records concerning the patient to the widow of the deceased at the time of referring the patient to Holy Family Hospital.  Placing the onus on the illiterate widow of the deceased, the Hon’ble President has wrongly drawn an adverse inference and held it to be a case of no evidence.  On the other hand, the two members of the District Forum have discussed the evidence in detail and rightly discarded the claim of the OP as he failed to produce any document other than the referral slip to substantiate his claim.  Contending that, as borne out from the Medical Certificate of cause of death issued by Holy Family Hospital (at page 22 of the paper book) Sham Bir Singh died due to cerebral malaria and complications arising there from which the OP had failed to detect/diagnose.  The counsel submits that this is clear case of medical negligence.  The State Commission has dismissed the well reasoned, detailed majority order of the District Forum in a casual manner which deserves to be set aside and majority order of the District Forum upheld.

          Counsel for the respondent/OP in justification of the impugned order has stated that since the deceased Sham Bir himself was a practitioner of Ayurvedic and Unani System of medicine and used to visit the respondent/OP and refer his patients to the OP, no fee was charged for his treatment.  Had any payment been made his widow should have produced the receipt which she has failed to do.  The counsel, therefore, argues that the State Commission rightly held that the complainants were not consumers in terms of  Section 2 (d) ii of the Consumer Protection Act., 1986.

          On the point of diagnosis and treatment, the counsel contends that when the respondent/OP had conducted the necessary blood test and found it negative for malaria and since he had prior knowledge of the patient suffering from respiratory distress, his diagnosis as case of Chronic Bronchitis with emphysema with carpulmorale with CO2 Narcosis was quite in order.  That, even Holy Family Hospital had prescribed the same treatment and medicine not only corroborates but confirms that the diagnosis of OP was the correct diagnosis which has been so held by the President of the District Forum. 

          Arguing further the learned counsel has contended that the allegation that the death was due to Acute Anterior-Septal MI due to cerebral malaria/Acute Renal Failure/upper GIT Bleed has been effectively repelled by the President of the District Forum on the basis of medical literature on the subject which no where states that cerebral malaria can lead to acute MI.  Even Renal Failure does not lead to acute MI and upper GIT bleed occurred while the patient was under treatment of the Holy Family Hospital of which the OP had noticed no such symptoms, as otherwise, it would have found a mention in his referral slip.

          Learned counsel has finally assailed the Death Certificate issued by the Holy Family Hospital by contending that in the absence of post mortem examination, which alone could have revealed the real cause of death, the hospital authorities should not have attributed the death to cerebral malaria etc.  The counsel therefore submits that the State Commission has rightly dismissed the complaint and the Revision Petition being devoid any merit deserves to be dismissed. 

          We have perused the records of the case.

          The State Commission order, as has been pointed out by the learned  counsel for the petitioner, has been rather brief.  After the introductory remarks as to how the appeal came to be filed before it, the State Commission has decided the appeal as under :

“Notice of the appeal was issued and in pursuance of which Mr. O.P. Sharma, Advocate has put in appearance on behalf of the respondents and has defended the order of the District Forum. 

We have heard counsel for both sides and have also perused the entire paper book.  After having considered the submissions of both sides, we find substance in the arguments of the counsel for the appellant.  There is no evidence on record which could prove the cause of death, as no autopsy on the dead body of deceased was conducted.  This Commission has repeatedly held that if there is no sufficient evidence on behalf of the complainant to prove the allegations, no negligence can be attributed to the OPs.  It was incumbent on the part of the complainants to have led evidence of any doctor of the ‘Holy Family Hospital’ as the deceased died in the ‘Holy Family Hospital’.  Only the doctors of the said hospital could have ascertained the cause of death of deceased sham Bir Singh.  In view of the matter the appeal is allowed, the impugned order of the two members of the District Forum is quashed and the complaint is dismissed.  However, no order as to cost.” 

          In our view, the Appeal deserved a better treatment in the hands of the State Commission.  No doubt proceedings in a consumer forum are summary in nature but disposing of an Appeal in summary manner without even mentioning as to what points were raised by the counsel for the parties and as to how the Commission arrived at the conclusion that there is no evidence to prove the death amounts to improper exercise of its appellate jurisdiction.  On this ground alone, the order of the State Commission deserves to be set aside and the case can be remanded.  However, since it is a fifteen year old incident, we consider it appropriate in the interest of justice to deal with the matter here rather than remand the matter which will entail further delay.

          Since complete background and the pleas taken by the parties stand described in the aforementioned paragraphs, we straightway come to the merits of the case.

          The preliminary objection taken by Respondent/opposite party all through has been that the complainants are not consumers as per Section 2(d) of CP Act, 1986 since he did not charge any money for the treatment of the patient.  The State Commission has up held the stand. In our view wrongly for the simple reason that the Nursing Home was being run by the respondent-opposite party to earn for his living.  It was not a charitable Nursing Home run for any philanthropic cause.  The complainant has stated that money was paid to the opposite party  but the receipt was at home at the time of recording of the evidence.  There is no suggestion in the cross-examination from the opposite party to elicit to confirm that there was no receipt at all and that she was telling a lie specially when she reiterated her stand by saying “It is incorrect to say that Dr. Mohindru did not charge any money from my husband” (P-31, Ans-2).  Besides, nothing prevented either, the District Forum or the State Commission to ask her if she could produce the receipt,  if it was so vital a piece of evidence rather than draw an adverse inference and hold that she has failed to prove the payment.  After all she was an illiterate woman.

          Besides, if OP-doctor, indeed, did not charge any amount from the patient, he should have readily agreed to refer the patient to a hospital, the moment he was requested by the patient’s relatives.  As per his own admission, the patient was referred to Holy Family Hospital on the insistence of the relatives and not on his own volition.  Thus, the claim of not charging any amount cannot be believed.

          There is another aspect to this.  The respondent-opposite party in his reply to the complaint before the District Forum in para-5 (page 13 of index file) states :-

“The deceased has personal relations with the respondent because the deceased was a medical practioner and he used to come along-with the partients, who were referred by him to expert guidance, so the respondent never charged any money for the treatment of the deceased and all the treatment was given ‘free of charge’.

          A careful reading of this statement clearly reveals that there was a relationship of trade off/quid-pro-quo between the opposite party and the deceased which would amount to a consideration,  thereby attracting the provisions of Section 2(d) (ii) of Consumer Protection Act, 1986.

          On the diagnosis and treatment aspect of the case, the State Commission has taken the view that it was incumbent upon the complainants to have led evidence of any doctor of Holy Family Hospital to ascertain the cause of death and the failure to do so amounted to a case of ‘no evidence’.  The State Commission, therefore, accepted the appeal of respondent-opposite party and dismissed the complaint.

          When certificate of death stating the reasons due to which the patient died has been issued by the Holy Family Hospital and the same was produced and made the basis of the complaint, the State Commission has certainly erred in holding that it was a case of no evidence.

          In so far as diagnosis aspect is concerned the respondent-opposite party has taken the plea that he knew the patient for several years.  He used to come to him with complaints of breathing distress.  On 18.11.1992 when he was having fever and brought by his family members, he appears to have straightaway diagnosed it to be a case of Acute Bronchitis with emphysema with carpulmorale with CO2 Narcosis on the basis of his personal previous knowledge and started the treatment for the same.  He also claims that blood, urine and ECG tests were carried out but no such document was produced in evidence before the District Forum on the plea that they were given to the complainant at the time of referring the patient to Holy Family Hospital.  This simply cannot be believed since no Hospital will part with its original reports and records and in the normal course, details with regard to diagnostic tests carried out, results thereof and treatment given is elaborately stated in the discharge slip.  There is no mention of any such test in the referral/discharge slip dated 21.11.1992 issued by the respondent-opposite party with his own hand.  If indeed he has carried out the blood test for malaria and found it negative, he should have mentioned about it in the referral slip.  Failure to do so would amount to professional negligence as has been stated in the order passed by the two members of the District Forum.  The claim of the opposite party that he carried out a number of test e.g. HB, TLC, D.LC, MP, Urine, RE Blood Glucose, Blood urea is not true since the opposite party failed to produce any office record.  He could not even name the technologist/pathologist who conducted the test.  He has not clarified whether tests were conducted in his Nursing Home and that he has a full fledged laboratory.  In this background, it appears that the claim of having conducted the blood test etc. was an after thought to cover his omission as the patient had been diagnosed for celebral malaria by Holy Family Hospital.

          The respondent-opposite party in his attempt to defend his diagnosis has tried to find fault with the findings of Holy Family Hospital.  It has been stated that diagnosis of the doctors of Holy Family Hospital cannot be believed to be correct since the patient did not improve with medicines given there and also because no CT scan was carried out to establish the cause of coma other than celebral malaria.  Referring to Harrison’s Principles of Medicine Vol.1, it has been stated that Acute MI does not occur due to celebral malaria but it occurs due to process of Ischaemia caused by process of Atherosclerosis.  Besides coronary atherosclerosis is a slow process and does not develop in a day.  Blaming the renal failure on the part of the Holy Family Hospital and also stating that the drug administered by them had resulted in multiple organ failure, the opposite party has tried to establish that the death of the patient was not because of celebral malaria but for other reasons and his diagnosis was correct.

          This contention of opposite party cannot be accepted for the simple reason that on the one hand he justifies his diagnosis stating that the Holy Family Hospital too had administered the same medicines which he had given, while on the other hand he blames the occurrences there leading to death of the patient on them.

          What is, however, more revealing is the fact that he himself, as an after thought to cover his omission (vide his application dated 06.05.1998 referred to at P-14 of the paper-book)  stated that he had administered chloroquin, a known medicine for malaria.  Thus the opposite party has been blowing hot and cold in the same breath and cannot be believed.  It is also to be noted that while the patient was admitted into the respondent’s Nursing Home on 18.11.1992 and on the insistence of the family members, the respondent referred the patient to Holy Family Hospital only on the 21.11.1992 after treating him for full 3 days, he repeatedly, including in his affidavit states that he referred the patient on 20.11.1992 (Ref. P-19, para-5, P-13 para-5 of Index Vol., P-36, para-5, P-38 para 5 and P-33 of Vol.).  This has relevance as the delay of 3 days in not treating falciparum malaria had given rise to complexities ultimately resulting in multiple organ failure and finally death.

          It is also to be noted that the emphasis of the opposite party all through has been to establish that all others were wrong while not attempting to prove that his diagnosis was correct.  If it was a case of chronic bronchitis with emphysema with carpulmorale with CO2 Narcosis, the least expected of him was to have first carried out an
X-ray and PFT (Pulmonary Function Test) before jumping into that conclusion to support/ corroborate his view.  Just because he was acquainted with the patient or that he had been earlier approached by him with complaints of respiratory distress, the opposite party, even if he is a highly qualified physician should not have determined the prognosis only by his clinical notion.  It should have been supported by reports of investigation.  There is no explanation as to why these tests were not carried out.  Either the respondent-opposite party doctor was over confident or very casual in dealing with the cause of illness of the patient.  Either way, he was found wanting in diagnosing the case.

          We note that the respondent-opposite party in his reply to the revision petition filed by way of affidavit has at the outset referred to Modi’s Medical Jurisprudence and has contended that “the law presumes that a person who enters medical profession undertakes to use a reasonable degree of skill, care, knowledge and prudence in treatment of his patient to the best of his judgment, but he is not liable for an error of judgment or of diagnosis”.  Further, it is also to be kept in mind that a doctor is not a guarantor of absolute safety.  He is not an insurer and liability of doctor is not unlimited and a doctor is not liable in law merely because a thing goes wrong.  The law requires the doctor to exercise professionally that skill and knowledge that belongs to ordinary practitioner. 

We are fully aware of the various principles by now fully established consequent to a series of judgments by the Apex Court, in particular,  the law laid down by Apex Court in particular Jacob Mathew Vs. State of Punjab & Anr. (2005) 6 Supreme Court Cases 1. 

As discussed above, the respondent-opposite party has been deficient in not carrying out the normal and obvious tests before arriving at his own diagnosis which has been done on the basis of personal knowledge and perhaps due to an error of judgement.  The principle laid down by the Hon’ble Apex Court in the case referred to above in para-21 would be of relevance.  Quoting from Halsbury’s Laws of England, the Apex Court has stated :-

          “35.    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, judged in the light of the particular circumstances of each case, 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.

       Deviation from normal practice is not necessarily evidence of negligence.  To establish liability on that basis it must be known (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.”

          Similarly in para-45 of the judgment, it has been stated that while an error of judgment is not necessarily negligence, it has quoted from the opinion of Lord Fraser determining when an error of judgment can be termed as negligence :-

                   “The true position is that an error of judgment may, or may not be negligent; it depends on the nature of the error.  If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent.  If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence.”

          In the case in hand, we find that the respondent-opposite party has not followed the usual and normal practice of conducting certain minimum tests before zeroing on the diagnosis.  The course adopted by him to abruptly decide on the diagnosis and commence the treatment would not normally be followed by any professional man of ordinary skill. 

We notice that the respondent doctor is a post-graduate in medicine, eminently qualified as also experienced professional, but under the facts and circumstances of the case he has defaulted in the matter of following even the normal practice which an ordinary competent medical practitioner exercising an ordinary degree of professional skill would have followed.

          We also take note of the fact that the deceased was a practitioner of ayurvedic and unani medicine and was acquainted with the respondent doctor for his visits with regard to respiratory distress.  In this background, when he got admitted in the Nursing Home of the respondent-opposite party with high fever, he too ought to have informed the respondent-opposite party that it was not an usual visit with regard to respiratory distress but due to high fever.  That would have perhaps set the respondent-opposite party thinking deeper than in normal circumstances, but his over confident posture due to his familiarity appears to have prevented him to think of any other cause.

          In view of the discussions above while we set-aside the order of the State Commission, we allow the complaint to the extent that the respondent-opposite party has been negligent and deficient in service to the extent that he did not follow and adopt adequate normal procedure of obtaining the required test reports before arriving at the diagnosis.  Further, while running a medical clinic, he has been found to be deficient with regard the maintenance of proper records as we cannot believe that the case-sheet of the patient and other records were all handed over to the widow of the diseased and that no office record at all was available with him. 

So far as, compensation part is concerned, main complainant i.e. Vidya Devi, widow of diseased has expired 6 long years ago in 2002.  The incident is of 1992 and the two sons and two daughters of the diseased would  now be well on their way in setting right their own lives.  For them any compensation would not provide the same benefit as would have been helpful had they received the compensation in time.  However, under the facts and circumstances of the case, we order the respondent-opposite party to pay a compensation of Rs.2,00,000/- to be given @ Rs.50,000/- to each of the complainants within a period of one month, failing which interest @ 9% per annum would be leviable  till date of payment.  The revision petition is, accordingly, disposed of in these terms.