This appeal arises out of judgement and order dated 17.11.2006 rendered by State Consumer Disputes redressal Commission, Delhi (in short he State Commission in complaint case no. 198/1995. The appellant is the original complainant. By the impugned judgement and order, the complaint was partly allowed. The appellant was granted compensation of Rs.2.50 lakh from original OP No. 1 & 3. 2. The grievance of the appellant is that the State Commission erroneously exonerated OP No. 2, Dr. S.K. Nijhara and that he too is jointly and severally liable to indemnify her. It is also her grouse that amount of compensation awarded by the State Commission is palpably low and deserves to be enhanced to the extent of the amount claimed in the complaint, i.e., Rs.20lakh. In addition, the complainant has now joined the respondent no. 4 in the appeal and came out with a case that the respondent no. 4 is the insurer of the respondent no. 1 hospital and as such is liable to pay the compensation to her. 3. Briefly stated, the case of the complainant is that she consulted the respondent no. 2 in the last week of Feb. 1994 due to acute pain in her ankle of the right leg. The respondent no. 2 gave conservative treatment but the pains did not recede. The opponent no. 2 gave opinion that her medical problem was due to compression in L-4 and L-5 of the lumber region and the spinal cord. The respondent no. 2 referred her to respondent no. 3 Dr. Virender Mohan (since deceased). The deceased respondent no. 3 advised her to get another CT Scan of L-4 and L-5. The respondent nos. 2 & 3 administered pain-killing injections and directed her to undergo various tests including X-ray examination from time to time, and lastly opined that she needed to undergo operations of L-4 & L-5 of the lumber region and the spinal cord for reduction of the pain. She was put to fear that if the operation was not carried out immediately, she was likely to get attack of paralysis. The respondent nos. 2 & 3 conducted operation on her lumber region in the hospital of the respondent no. 1 in the first week of July 1994. She was heavily charged for the medical treatment, operation charges, room rent etc. The respondent nos. 2 & 4 informed her that the operation was successful. She was advised to take treatment of physiotherapist and to do certain exercises. She was unable to, however, move without difficulty and the pain continued. She was bed-ridden for about two months. 4. She lateron consulted Dr. Ashok Kumar of AIIMS. He informed her that no operation of L-4 & L-5 of the limber region was carried out by the respondent nos. 2 & 3. She was further informed that she was operated on L-2 & L-3 level and, therefore, there was little bulging of the spinal cord. She was negligently treated and wrongly operated by the respondent nos. 2 & 3. She lost her business due to wrong operation of L-2 & L-3. Further, it resulted into a disease, known as rachonoiditisof L-3 & L-4. She suffered continuous fever due to such disease which was caused due to erroneous operation of the spinal cord. She incurred an expenditure of Rs. 1 lakh for the medical treatment. For a long period, she suffered pains and agony due to the negligence of the respondent nos. 2 & 3. Consequently, she filed the complaint for recovery of compensation of Rs.20 lakh alongwith interest @18% per annum. 5. The complaint was resisted by the respondent nos. 2 & 3 on various grounds. The respondent no. 2 alleged that the treatment was properly given to the complainant at his end. He submitted that when the conservative treatment did not give required relief to the complainant, he bonafidely referred her to the deceased respondent no. 3. He submitted that he had exercised due care and caution when the complainant approached him. She was called upon to obtain CT scan report of the lumber region. According to the respondent no. 2, the appellant (complainant) was lateron examined by the respondent no. 3 and he was unconcerned with the further treatment given by the respondent no. 3. It was the respondent no. 3 who diagnosed that there was severe compression of the spinal cord at the level higher to L-4 / L-5. The respondent no. 2 submitted that he remained present at the time of operation carried out by respondent no. 3 only due to request made by the complainant. The surgery carried out on the complainant was a complicated one and pain in her leg had been reduced after the operation. Her neurological status was improved. She had gone abroad after the successful treatment. According to the respondent no. 2, the complaint was filed on basis of opinion of Dr. Ashok Kumar of AIIMS and one Dr. G.C. Das who told her that there was wrong treatment. The respondent no. 2 denied that he committed any negligence while treating the complainant (appellant). It is submitted that she was operated upon the spinal cord and compression of L-2 and L-3 was removed. He gave best of the treatment to provide relief to the complainant and took all possible precautions while giving the treatment to her, hence he sought dismissal of the complaint against him. 6. Since the original respondent no. 3 died during pendancy of the complaint case, now case against him need not be examined. The complaint against the deceased respondent no. 3 stands abated due to his death. 7. The respondent no. 4 did not deny the insurance contract between itself and the respondent no. 1. The respondent no. 1 hospital did not deny the fact that the operation on the complainant was conducted in its hospital. The parties adduced certain evidence before the State Commission in support of their rival contentions. The State Commission came to the conclusion that there was medical negligence on the part of the respondent no. 3 because instead of conducting operation at L-4 & L-5 level of the lumber region the complainant was operated upon L-2 / L-3 level. The State Commission, however, held that mere presence of the respondent no. 2 at the time of operation performed by the respondent no. 3 (since deceased) cannot fasten any liability on the respondent no. 2. The State Commission held that the respondent no. 2 was not liable to pay any compensation because there was no negligence on its part. The State Commission observed that presence of foreign body like dust of metal as indicated in the MRI report was sufficient evidence to infer medical negligence of the operating doctor. It has been held that instead of conducting the operation on L-4 and L-5 level of the vertebra, erroneously, the complainant was operated at L-2 and L-3 level which resulted into the medical complications and, therefore, the complainant was made to suffer for more than a couple of months. In keeping with such findings, the impugned judgement and order was rendered by the State Commission. 8. We have heard learned counsel for the parties and have gone through the relevant record. The questions which arise in the appeal are as follows:- (i) Whether it is proved that the respondents no. 1, 2 & 3 committed gross negligence while operating and treating the appellant? (ii) Whether in the facts and circumstances of the present case, the State Commission was justified in exonerating the respondent no. 2 (opposite party no. 2)? (iii) Whether in the facts and circumstances of the present case, the compensation awarded by the State Commission is inadequate and improper? If so, to what extent the compensation requires enhancement? 9. So far as the question of medical negligence is concerned, it may be stated that the complainant at first approached respondent no. 2 in the last week of Feb. 1994. He gave her conservative treatment at the initial stage. It appears from the history recorded by the respondent no. 2 and the prescription given by him that the complainant was having swelling over the right ankle accompanying with spasm and feeling of numbness. The respondent no. 2 had done pop slab and gave certain medicines to the complainant. He asked her for the review after a week. Later on, she was again advised CT scan of lumber region and measurement of canal so as to exclude canalthanosis. The report of Diwan Chand Satya Pal Aggarwal Imaging Research Centre purports to show that there was degenerative change in the space of L-4 and L-5 disc with reduction of the height and vacuum within the same. The report further shows that there was local hemangioma in L-3 vertebra but that was of no clinical significance. The discharge card of the respondent no. 1 shows that the respondent no. 2 was the consultant and the complainant was discharged after treatment of spinal stenosis. 10. What appears from the record is that the complainant was wrongly operated upon by the deceased respondent no.3 in the hospital of the respondent no. 1 because instead of conducting the operation at L-4 and L-5 that was conducted at L-2 & L-3 level. The record further shows that there was some foreign substance found at L-3 level, which was probably metal dust. It is not the case of the opposite party no.2 that the complainant was operated at L-4 and L-5 level in accordance with the diagnosis on basis of the CT scan report. His case is that he was not concerned with the operation done by the deceased respondent no. 3. 11. We have taken note of the fact that the respondent no. 2 issued a certificate to the complainant on 28.03.1995 (Annexure VII). In this certificate, the respondent no. 2 stated that the complainant was referred to the deceased respondent no. 3 and the diagnosis of stenosis at L-2 L-3 as well as at L-4 & L-5 level was made and she was advised to undergo surgical decompression. He further certified that she was given physiotherapy and had recovered. It appears that in this certificate, the respondent no. 2 made alterations by introducing the nature of diagnosis as spinal stenosis at L-2 and L-3 level. In fact, the initial diagnosis made by the respondent nos. 2 & 3 was that there was stenosis at L-4 & L-5 level. Considering the medical record, it may be gathered that when the complainant underwent MRI at MR centre of Dr. Parveen Gulati on 17.08.1995, the MRI findings indicated that there was arachonoiditis at L-3 & L-4 level. The cause of arachonoiditis at L-3 level can be attributed to the error committed while operating the complainant at L-3 level. The presence of arachonoiditis at L-3 level does imply existence of inflammation and clumping of nerves at L-3 level. Considering the medical record, it will have to be said that this is not a case of error of judgement or bonafide mistake on the part of the medical practitioner(s). The principle es ipsa loquiteuris squarely attracted in the facts and circumstances of the present case. On behalf of the respondent no. 2, our attention was drawn to observations in acob Mathew Vs. State of Punjab & Anr.[2005 SCC (Cri) 1369]. The Apex court held that medical negligence resulting into damage may be held as proved when the complainant establishes: (1) the existence of a duty to take care, which is owed by the defendant to the complainant. (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant. 12. In our opinion, all the three ingredients are duly proved by the appellant (complainant) in the present case. For, instead of conducting the operation at L-4 & L-5 level it was conducted at L-2 & L-3 level. Moreover there was some foreign substance left at L-3 level during course of the operation. The MRI report, rendered after the operation, establishes that there was arachonoiditis due to compression of nerves at L-3 & L-4 level. The cumulative effect of the above discussion is that the medical negligence of the treating doctor(s) is duly established. 13. So far as the liability of respondent no. 2 is concerned, the State Commission observed that he was merely present at the time of operation, therefore, he could not be held liable for the error committed during the course of period of treatment. It is pertinent to note that the respondent no. 2 / OP No. 2 was the consulting doctor to whom the complainant had initially approached. He was present at the time of operation of the complainant. His pleadings in the written version, particularly, the statement in para 8, go to show that he attempted to develop a new case that at the time of operation it was noticed that at the level of L-2 & L-3 vertebra there was an enlarged and tortuous bunch of blood vessels which was compressing the spinal cord and the emerging nerve roots. He narrated in para 9 of the written version that he and the respondent no. 3 meticulously examined the complainant after the surgery and found her leg pain reduced. This is incorrect statement as she continued to suffer after the surgery. It is argued on behalf of the respondent no. 2 that the complainant was referred to the respondent no. 3 only because it was neurological problem and treatment of senior neurosurgeon was necessary. It appears that the respondent no.2 gave such a statement with a view to abdicate himself from the responsibility. The averments in para 9 of the written statement of deceased respondent no. 3 clearly shows that the operation was conducted by both of them. The pleadings of the respondent no. 3 were thus:- ith respect to para 9 of the complaint, it is submitted that it is correct that the operation was conducted by the respondent no. 2 & respondent no. 3 and the same continued for four hours. 14. There was no reason for deceased respondent no. 3 to wrongly involve the respondent no. 2 and make him liable. Obviously, the respondent no. 2 was not merely present at the request of the complainant but he had participated in the process of operation because he was the consultant and had made early diagnosis of the medical problem. Secondly, the spinal cord and the vertebra fall within the branch of neurosurgery as well as orthopaedic surgery. So, it cannot be said that the orthopaedician had no concern with such kind of operation. Moreover except the bald and interested version of the respondent no. 2, there is no tangible material to infer that he had not jointly participated with the deceased respondent no. 3 in the course of the operation conducted on the spinal cord and vertebra of the complainant. We are of the opinion that the State Commission exonerated the respondent no. 2 (Opposite Party No.2) without recording any substantial reason and merely on basis of conjunctures. Hence we have no hesitation in holding that the respondent no. 2 is also jointly and severally liable to indemnify the complainant. 15. Coming to the question of quantum of compensation, it may be mentioned that the State Commission awarded lump sum compensation of Rs.2.50 lakh without recording any substantial reason to restrict the amount only to the extent of the part of the claim put forth by the complainant. The complainant was required to bear unbearable pains for a long period after the operation. It appears that the complainant was bed ridden for about couple of months. Further, she was unable to undertake daily pursuits of the life. She suffered from fever after the operation. It was found after further examination by the consultant at AIIMS that wrong operation was conducted. The complainant stated that she was unable to attend her business from June 1994 for about 8 months. It is but natural that she suffered financial loss during the relevant period. It is true that the complainant did not produce specific evidence regarding the financial loss caused to her due to the erroneous and negligent operation. We are of the opinion that the complainant should have been adequately compensated having regard to the prolonged treatment taken by her for a period of 8 / 10 months. Her pains and sufferings also should be duly compensated. The quantum of compensation is required to be enhanced to the tune of Rs.5 lakh. The respondent no. 4 did not dispute the fact that the respondent no. 1 hospital was insured with it. 16. In view of the foregoing discussion, we are inclined to partly allow the appeal. Hence, appeal is partly allowed. The quantum of compensation is enhanced from Rs.2.5 lakh to amount of Rs.5 lakh. The appeal stands abated against respondent no. 3 (deceased). The appellant is entitled to recover amount of Rs.5 lakh from the respondent no. 1, 2 & 4 who are jointly and severally liable to pay the said compensation amount to her. The complainant is also entitled to recover interest @9% p.a. on the amount of compensation indicated above from the date of the impugned judgement rendered by the State Commission till the entire amount is paid to her. She is also entitled to cost of Rs.10,000/- which the respondent no. 1, 2 & 4 shall pay jointly and severally to her (complainant). The respondents to bear their own costs.