Full Judgment Text
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CASE NO.:
Appeal (civil) 4024 of 2003
PETITIONER:
Smt. Savita Garg
RESPONDENT:
The Director, National Heart Institute.
DATE OF JUDGMENT: 12/10/2004
BENCH:
B.N.AGRAWAL & A.K.MATHUR
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
This appeal is directed against the order passed by the
National Consumer Disputes Redressal Commission (hereinafter to
be referred to as ’the Commission’), New Delhi whereby the
Commission has dismissed the original petition of the appellant on
the ground of non-joinder of necessary parties.
Brief facts which are necessary for disposal of this appeal are
as follows.
The appellant is the wife of one deceased A.K.Garg who was
admitted to the National Heart Institute (hereinafter referred to as ’the
Institute’) for medical treatment and because of the negligence of the
doctors of the Institute he could not get proper medical treatment and
ultimately he died. The deceased A.K.Garg was employed as
Electrical Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased
was drawing a salary of Rs.8000/- per month at the time of his death.
He left behind his family members namely; (i) Smt.Savit Garg (wife),
(ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg (son), (iv) Miss.
Ruchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop Garg
(brother). Prior to the admission of the deceased, A.K.Garg in the
Institute he was being treated at G.B. Pant Hospital and he did not
improve there, therefore, his case was referred to the Institute by his
employer, IDPL. The deceased was admitted for angiography on
4.7.1994 and a sum of Rs.14,000/- was deposited for his treatment.
He was discharged on 5.7.1994 after angiography. Again he was
admitted on 2.8.1994 at 11.15 A.M. and remained there till 9.8.1994
and ultimately died at the Institute. It was alleged that on 3.8.1994 he
was operated and was brought to the Intensive Care Unit of the
Institute. No attendant was allowed to see the patient except
through the glass windows of I.C.U. The deceased was operated
twice by Dr.O.P. Yadav of the Institute for his treatment. It is further
alleged that Dr.O.P.Yadav was too much worried and perturbed after
the deceased’s operation. On the said day i.e. on 3.8.1994, 8 bottles
of blood were transfused in the body of the deceased and even on
4.8.1994 another 8 bottles of blood were demanded by the Doctors of
the Institute and the same was somehow arranged. The deceased is
said to have developed jaundice may be because of wrong
transfusion or extra transfusion of blood. It is further alleged that the
deceased developed septic and as the septic in the bone became
incurable, therefore a Doctor from Batra Hospital was called for to
amputate one leg of the deceased A.K.Garg. Thereafter , as it was
reported to be case of kidney failure, the deceased was put on
dialysis. However, on 9.8.1994 at 2.30 hours the deceased was
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declared dead. Therefore, a complaint was filed before the
Commission claiming a sum of Rs.45 lacs, the details of which have
already been given in the complaint. The appellant has detailed the
reasons for the negligence in her original petition filed before the
Commission. An affidavit in opposition was filed by the Institute and
they denied the allegations of negligence and pointed out that all
proper care was taken, there is no negligence on the part of the
Institute. An objection was also taken that the provisions as contained
in the Consumer Protection Act, 1986 do not satisfy the requirement
of a complaint as defined under the Act as it does not disclose any
deficiency. The Institute also challenged the jurisdiction of the
Commission to entertain the said original petition.
A rejoinder was also filed by the appellant and it is alleged that
septic was developed because of the negligence which shows lack of
care on the part of the doctors. However, when the matter came up
for hearing on 12.4.2002, the Commission directed both the parties to
file brief notes of submissions on the question of maintainability of the
complaint as well as the effect of non-impleading the attending
doctors against whom the medical negligence has been alleged and
the matter was posted to 2.5.2002 for directions. Thereafter,
ultimately the matter was disposed of by the Commission by its order
dated 6.2.2003 holding that the original petition is not maintainable in
the absence of the treating doctors being impleaded as party. It was
also observed that no effort was made by the appellant to implead
the concerned doctors at any stage of the proceedings. Therefore,
the Commission held that there is no alternative but to dismiss the
complaint for non-joinder of parties. The Commission however
observed that considering the age of the deceased and the number of
dependents upon her, the Institute will consider the matter
sympathetically and make some ex-gratia payment to the family
members of the deceased.
The question is whether non-impleading the treating doctor as
party could result in dismissal of the original petition for non-joinder of
necessary party.
It is the common experience that when a patient goes to a
private clinic, he goes by the reputation of the clinic and with the hope
that proper care will be taken by the Hospital authorities. It is not
possible for the patient to know that which doctor will treat him. When
a patient is admitted to a private clinic/ hospital it is hospital/ clinic
which engages the doctors for treatment. In the present case, the
appellant’s husband was admitted to the best of the hospital and it is
not possible for the appellant to find out that who is the best doctor
and who is not. Normally, the private clinics go by the reputation and
people look forward for best treatment when they are run
commercially. It is the responsibility of the clinic that they must
provide best of the services when they charge for the services
rendered by them. In case it is found that services rendered by the
clinic or hospital, as the case may be, is not up to the mark and it
involves some negligence on their part, for which the patients suffer,
then they are bound to reimburse them. They charge fee for the
services rendered by them and they are supposed to bestow the best
care. Looking at the present appeal, the whole claim petition was
dismissed simple on the ground that the treating doctor was not
impleaded as a party. The question is therefore, whether in the
absence of the treating doctor could the original petition be
dismissed on the ground of non-joinder of necessary party. As per the
provisions of Section 22 of the Consumer Protection Act, 1986
(hereinafter referred to as ’the Act’) the Commission has to regulate
its business. Section 22 lays down the power of and procedure
applicable to the National Commission. It reads as under:
" 22. Power of and procedure applicable to the
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National Commission.- The National
Commission shall, in the disposal of any
complaints or any proceedings before it, have-
(a) the power of a civil court as specified in sub-
sections (4), (5) and (6) of section 13;
(b) the power to issue an order to the opposite
party directing him to do any one or more of the
things referred to in clauses (a) to (i) of sub-
section (1) of section 14,
and follow such procedure as may be prescribed
by the Central Government.".
According to Section 22 whatever procedures which have
been prescribed under Section 13 for the District Forum shall be
applicable. Sub-sections (4), (5) & (6) of Section 13 which are
relevant for our purpose read as under:
" 13. Procedure on receipt of complaint.-
xx xx xx
(4) For the purposes of this section, the District
Forum shall have be same powers as are
vested in a civil court under Code of Civil
Procedure, 1908 while trying a suit in respect
of the following matters, namely:-
(i) the summoning and enforcing the attendance
of any defendant or witness and examining
the witness on oath,
(ii) the discovery and production of any document
or other material object producible as
evidence,
(iii) the reception of evidence on affidavits,
(iv) the requisitioning of the report of the
concerned analysis or test from the
appropriate laboratory or from any other
relevant source,
(v) issuing of any commission for the examination
of any witness, and
(vi) any other matter which may be prescribed.
(5) Every proceeding before the District Forum
shall be deemed to be a judicial proceeding
within the meaning of section 193and 228 of
the Indian Penal Code (45 of 1860), and the
District Forum shall be deemed to be a civil
court for the purposes of section 195, and
Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(6) Where the complainant is a consumer
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referred to in sub-clause (iv) of clause(b) of
sub-section (1) of section 2, the provisions of
rule 8 of Order 1 of the First Schedule to the
Code of Civil Procedure, 1908 ( 5 of 1908)
shall apply subject to the modification that
every reference therein to a suit or decree
shall be construed as a reference to a
complaint or the order of the District Forum
thereon."
Sub-sections (4), (5) & (6) of Section 13 lay down that the
Forum shall have the power to summon and enforce the
attendance of any defendant or witness as laid down in the Code
of Civil Procedure. Likewise, it shall have the power to direct for
production of material object producible as evidence, reception
of evidence on affidavit; requisitioning of the report of the
concerned analysis or test from the appropriate laboratory or
from any other relevant source; issuing of any commission for
the examination of any witness and any other matter which may
be prescribed. Sub-section (5) says that every proceeding
before the District Forum shall be judicial proceeding within the
meaning of sections 193 and 228 of the Indian Penal Code and
the District Forum shall be deemed to be a Civil Court for the
purposes of section 195 and Chapter XXVI of the Code of Civil
Procedure. Sub-section (6) says that when there are more than
one consumer, then one of them can sue as required under
Order 1 Rule 8 of the Code of Civil Procedure. Therefore, if
there are number of consumers, one of them can represent the
interest of all. Therefore, as far as the Commission is
concerned, the provisions of the Code of Civil Procedure are
applicable to the limited extent and not all the provisions of the
Code of Civil Procedure are made applicable to the proceedings
to the National Forum. Rules have also been framed under the
Act, known as the Consumer Protection Rules, 1987, where Rule
14 has prescribed the procedure to be followed by the
Commission. Rule 14 says that the name, description and the
address of the complainant and the opposite parties, as the case
may be, so far as they can be ascertained, should be given.
Clause (b) of sub-section (1) which is relevant for our purposes
reads as under:
" (b) the name, description and address of the
opposite party or parties, as the case may be, so far
as they can be ascertained"
Therefore, according to the procedure laid down by the
Rules a complainant has to give the name, description and
address of the opposite party or parties so far as they can be
ascertained.
So far as the filing of complaint directly before the
Commission because of higher valuation, the procedures laid
down in Rule 14 of the Rules have to be followed and in that
case, the name of the opposite party has to be given so far as
they can be ascertained. In the present case, the appellant filed
original petition impleading the Institute where her husband was
admitted as a party but she did not implead the treating doctors
and nurses who were attending on her husband. Though the
Commission directed that necessary parties may be impleaded
and it appears that no effort was made to implead the treating
surgeon or the nursing staff as a party. Therefore, the question is
whether non-impleading the treating surgeon or a nursing staff
can be said to be necessary party and if they are not impleaded
then in that case, the original petition can result into dismissal on
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account of non-joinder of necessary party. So far as the law with
regard to the non-joinder of necessary party under Code of Civil
Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there
also even no suit shall fail because of mis-joinder or non-joinder
of parties. It can proceed against the persons who are parties
before the Court. Even the Court has the power under Order 1
Rule 10(4) to give direction to implead a person who is a
necessary party. Therefore, even if after the direction given by
the Commission the concerned doctor and the nursing staff who
were looking after the deceased A.K.Garg have not been
impleaded as opposite parties it can not result in dismissal of
the original petition as a whole.
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. Reverting
back to the facts of the present case, whether non-joinder of the
treating doctor, nursing staff can result into dismissal of the claim
petition. As a matter of fact, when a patient is admitted to the
highly commercial hospital like the present institute, a thorough
check up of the patient is done by the hospital authorities, it is
the Institute which selects after the examination of the patient
that he suffers from what malady and who is the best doctor
who can attend, except when the patient or the family members
desire to be treated by a particular doctor or the surgeon as the
case may be. Normally, the private hospitals have a panel of
doctors in various specialities & it is they who chooses who is to
be called. It is very difficult for the patient to give any detail that
which doctor treated the patient and whether the doctor was
negligent or the nursing staff was negligent. It is very difficult for
such patient or his relatives to implead them as parties in the
claim petition. It will be an impossible task and if the claim is to
be defeated on that ground it will virtually be frustrating the
provisions of the Act, leaving the claimant high and dry. 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.
It will be a difficult task for the patient or his relatives to
undertake this searching enquiry from the Hospital and
sometimes hospital may not co-operate. It may give such details
and sometimes may not give the details. Therefore, the
expression used in Rule 14 (1) (b), " so far as they can be
ascertained", makes it clear that the framers of the Rules
realized that it will be very difficult specially in the case of
medical profession to pinpoint that who is responsible for not
providing proper and efficient service which gives rise to the
cause for filing a complaint and specially in the case like the one
in hand. The patients once they are admitted to such hospitals,
it is the responsibility of the said hospital or the medical
institutions to satisfy that all possible care was taken and no
negligence was involved in attending the patient. The burden
cannot be placed on the patient to implead all those treating
doctors or the attending staff of the hospital as a party so as to
substantiate his claim. Once a patient is admitted in a hospital it
is the responsibility of the Hospital to provide the best service
and if it is not, then hospital cannot take shelter under the
technical ground that the concerned surgeon or the nursing staff,
as the case may be, was not impleaded, therefore, the claim
should be rejected on the basis of non-joinder of necessary
parties. 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,
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they can discharge the same by producing that doctor who
treated the patient in defence to substantiate their allegation that
there was no negligence. In fact it is the hospital who engages
the treating doctor thereafter it is their responsibility. The burden
is greater on the Institution/ hospital than that of the claimant.
The institution is private body and they are responsible to
provide efficient service and if in discharge of their efficient
service there are couple of weak links which has caused
damage to the patient then it is the hospital which is to justify the
same and it is not possible for the claimant to implead all of
them as parties.
In this connection, learned counsel appearing for the
respondent ably tried to make a distinction between ’contract for
service’ and ’contract of service’. He submitted that those
persons who are on contract for service are different from those
persons who are on contract of service. He submitted that in a
contract for service there is a contract whereby one party
undertakes to render service e.g. professional or technical
service, to or for another in the performance of which he is not
subject to detailed direction and control but exercises
professional or technical skill and uses his own knowledge and
discretion. A ’contract of service’ implies relationship of master
and servant and involves an obligation to obey orders in the work
to be performed and as to its mode and manner of performance.
By this learned counsel submitted that so far as the
permanent staff of the hospital is concerned, there is a contract
of service and negligence thereof the hospital can be made liable
and for that they need not be impleaded as parties in respect of
any negligence of service but the doctors who come on visit,
they are on contract for service over which the hospital has no
control and therefore, unless they are impleaded as parties, no
relief can be given. He also based his submission with reference
to some of the English decisions given in the case of Gold & Ors
v. Essex County Council reported in [1942] 2 All E.R.237 and
Collins v. Hertfordshire County Council & Anr. reported in [1947]
1 All E.R. 633. So far as Gold & Ors. v. Essex County Council is
concerned, in that case, the infant plaintiff was treated by a
radiographer, an employee of the respondents at one of their
county hospitals. By reason of his failure to provide adequate
screening material in giving Grenz-ray treatment the infant
plaintiff suffered injury to her face. It was proved that the
radiographer was fully competent to administer the treatment
given to the infant plaintiff. However, it was held that as the
radiographer was under a contract of service of the respondents,
they were liable for his negligence under the doctrine of
respondeat superior. It was further held that if a local authority
had exercised power under the Public Health Act, 1936, the
obligation undertaken is an obligation to treat and the authority is
liable if the person employed by it to perform the obligation on
its behalf acts without due care. This was a case in which the
radiographer was under regular employment with the county
council. This is a case in which a person was on contract of
service and not on contract for service. Therefore, this case does
not provide any assistance to the present case.
In the case of Collins v. Hertfordshire County Council &
Anr, while undergoing an operation, a patient in a county council
hospital was killed by an injection of cocaine which was given by
the operating surgeon in the mistaken belief that it was procaine.
The operating surgeon had ordered procaine on the telephone,
but the resident house surgeon ( who was then unqualified) had
mis-heard "procaine" as "cocaine", and had told the pharmacist
to dispense a mixture which was, in fact, lethal. The pharmacist
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dispensed the mixture without making further inquiry and without
requiring the written instruction of a qualified person, and the
operating surgeon had given the injection without checking that
it was what he had ordered. The operating surgeon, the house
surgeon, and the pharmacist were all three in the full-time or
part-time employment of the council. In an action by the patient’s
widow against the county council and the operating surgeon
alleging that the death was the result of (a) the council’s
negligence in the conduct of their hospital, and (b) the operating
surgeon’s failure to exercise reasonable care. It was held as
follows:
" (i) The county council, in managing the
hospital, was permitting a dangerous and
negligent system to be in operation, and the
operating surgeon and the house surgeon had
failed to exercise reasonable skill and care.
(ii) the council were able to control the
manner in which the resident medical officer
performed her work and, therefore, the acts of
the house surgeon done in the course of her
employment were acts for which the council
was responsible,
(iii) although the operating surgeon was
a part-time employee on the staff of the
council, the council could not control how he
was to perform his duties and was not
responsible for his want of care."
Learned counsel submitted that in view of the above
decisions since the doctor was on part-time employment, as
such he was not responsible. With respect this distinction which
is tried to be advanced by learned counsel for the respondent,
does not find favour in subsequent decision rendered by the
English Court in the case of Cassidy v. Ministry of Health
reported in [1951] 2 K.B. 343. In this case, the earlier decision in
the case of Gold & Ors. v. Essex County Council reported in
[1942] 2 All E.R.237 came up for consideration. Lord Denning,
J. speaking for himself observed that a hospital authority is
liable for the negligence of doctors and surgeons employed by
the authority under a contract for service arising in the course of
the performance of their professional duties. It was observed as
follows:
" The hospital authority is liable for the
negligence of professional men employed by
the authority under contracts for service as
well as under contracts of service. The
authority owes a duty to give proper treatment
\026 medical, surgical, nursing and the like- and
though it may delegate the performance of
that duty to those who are not its servants, it
remains liable if that duty be improperly or
inadequately performed by its delegates.
The plaintiff entered a hospital for an
operation on his left hand, which necessitated
post-operational treatment. While undergoing
that treatment he was under the care of the
surgeon who performed the operation, who
was a whole-time assistant medial officer of
the hospital, the house surgeon and members
of the nursing staff of the hospital, all of whom
were employed under contracts of service. At
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the end of the treatment it was found that his
hand had been rendered useless. The trial
judge dismissed his action for damages for
negligent treatment which he brought against
the hospital on the ground that he had failed
to prove any negligence. On appeal it was
held that in the circumstances, the doctrine of
res ipsa loquitur applied, and the onus lay on
the hospital authority to prove that there had
been no negligence on its part or on the part
of anyone for whose acts or omission it was
liable, and that onus had not been
discharged."
Therefore, as per the English decisions also the distinction
of ’contract of service’ and ’contract for service’, in both the
contingencies the courts have taken the view that the hospital is
responsible for the acts of their permanent staff as well as staff
whose services are temporarily requisitioned for the treatment of
the patients. Therefore, the distinction which is sought to be
pressed into service so ably by learned counsel cannot absolve
the hospital or the institute as it is responsible for the acts of its
treating doctors who are on the panel and whose services are
requisitioned from time to time by the hospital looking to the
nature of the diseases. The hospital or the institute is
responsible and no distinction could be made between the two
classes of persons i.e. the treating doctor who was on the staff
of the hospital and the nursing staff and the doctors whose
services were temporarily taken for treatment of the patients. On
both, the hospital as the controlling authority is responsible and it
cannot take the shelter under the plea that treating physician is
not impleaded as a party, the claim petition should be dismissed.
In this connection, a reference may be made to a decision of this
Court in the case of Indian Medical Association v. V.P. Shantha
& ors. reported in AIR 1996 SC 550. There the question had
come up before this Court with regard to the provisions of the
Consumer Protection Act, 1986 vis-‘-vis the medical profession.
This Court has dealt with all aspects of medical profession from
every angle and has come to the conclusion that the doctors or
the institutes owe a duty to the patients and they cannot get
away in case of lack of care to the patients. Their Lordships have
gone to the extent that even if the doctors are rendering services
free of charge to the patients in the Government hospitals, the
provisions of the Consumer Protection Act will apply since the
expenses of running the said hospitals are met by appropriation
from the Consolidated Fund which is raised from the taxes paid
by the tax payers. Their Lordships have dealt with regard to the
definition of "service" given in Section 2(1)(o) of the Consumer
Protection Act, 1986, and have observed as follows:
" The service rendered free of charge to
patients by doctors/ hospitals whether non-
Govt. or Govt. who render free service to
poor patients but charge fee for services
rendered to other patients would, even though
it is free, not be excluded from definition of
service in S.2(1)(o). The Act seeks to protect
the interests of consumers as a class. To hold
otherwise would mean that the protection of
the Act would be available to only those who
can afford to pay and such protection would
be denied to those who cannot so afford,
though they are the people who need the
protection more. It is difficult to conceive that
the legislature intended to achieve such a
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result. Another consequence of adopting a
construction, which would restrict the
protection of the Act to persons who can
afford to pay for the services availed by them
and deny such protection to those who are not
in a position to pay for such services, would
be that the standard and quality of services
rendered at an establishment would cease to
be uniform. It would be of a higher standard
and of better quality for persons who are in a
position to pay for such service while the
standard and quality of such service would be
inferior for person who cannot afford to pay for
such service and who avail the service without
payment. Such a consequence would defeat
the object of the Act. All persons who avail the
services by doctors and hospitals who give
free service to poor patients but charge fee for
others, are required to be treated on the same
footing irrespective of the fact that some of
them pay for the service and others avail the
same free of charge. Most of the doctors and
hospitals work on commercial lines and the
expenses incurred for providing services free
of charge to patients who are not in a position
to bear the charges are met out of the income
earned by such doctors and hospitals from
services rendered to paying patients. The
Government hospitals may not be commercial
in that sense but on the overall consideration
of the objectives and the scheme of the Act it
would not be possible to treat the
Government hospitals differently. In such a
situation the persons belonging to "Poor class"
who are provided services free of charge are
the beneficiaries of the service which is hired
or availed of by the "paying class". Service
rendered by the doctors and hospitals who
render free service to poor patients and
charge fees for others irrespective of the fact
that part of the service is rendered free of
charge, would nevertheless fall within the
ambit of the expression "service" as defined in
Section 2(1)(o) of the Act."
Therefore, the distinction between the ’contract of service’
and ’contract for service’ has been very elaborately discussed in
the above case and this Court has extended the provisions of
the Consumer Protection Act, 1986, to the medical profession
also and included in its ambit the services rendered by private
doctors as well as the Government Institutions or the non-
Governmental institutions, be it free medical services provided
by the Government Hospitals. In the case of Achutrao Haribhau
Khodwa & Ors. v. State of Maharashtra & Ors. reported in (1996)
2 SCC 634, Their Lordships observed that in cases where the
doctors act carelessly and in a manner which is not expected of
a medical practitioner, then in such a case an action on torts
would be maintainable. Their Lordships further observed
that if the doctor has taken proper precaution and despite that if
the patient does not survive then the Court should be very slow
in attributing negligence on the part of the doctor. It was held as
follows:
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" A medical practitioner has various
duties towards his patient and he must act
with a reasonable degree of skill and
knowledge and must exercise a reasonable
degree of care. This is the least which a
patient expects from a doctor. The skill of
medical practitioners differs from doctor to
doctor. The very nature of the profession is
such that there may be more than one course
of treatment which may be advisable for
treating a patient. Courts would indeed be
slow in attributing negligence on the part of a
doctor if he has performed his duties to the
best of his ability and with due care and
caution. Medical opinion may differ with
regard to the course of action to be taken by
a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable
to the medical profession and the court finds
that he has attended on the patient with due
care, skill and diligence and if the patient still
does not survive or suffers a permanent
ailment, it would be difficult to hold the doctor
to be guilty of negligence. But in cases where
the doctors act carelessly and in a manner
which is not expected of a medical
practitioner, then in such a case an action in
torts would be maintainable."
Similarly, our attention was invited to a decision in the case of
Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S.
Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships
observed as follows:
" Very often in a claim for compensation
arising out of medical negligence a plea is
taken that it is a case of bona fide mistake
which under certain circumstances may be
excusable, but a mistake which would
tantamount to negligence cannot be
pardoned. In the former case a court can
accept that ordinary human fallibility
precludes the liability while in the latter the
conduct of the defendant is considered to
have gone beyond the bounds of what is
expected of the skill of a reasonably
competent doctor."
Therefore, as a result of our above discussion we are opinion
that summary dismissal of the original petition by the
Commission on the question of non-joinder of necessary parties
was not proper. In case, the complainant fails to substantiate the
allegation, then the complaint will fail. But not on the ground of
non-joinder of necessary party. But at the same time the
hospital can discharge the burden by producing the treating
doctor in defence that all due care and caution was taken and
despite that patient died. The hospital/Institute is not going to
suffer on account of non-joinder of necessary parties and
Commission should have proceeded against hospital Even
otherwise also the Institute had to produce the concerned
treating physician and has to produce evidence that all care and
caution was taken by them or their staff to justify that there was
no negligence involved in the matter. Therefore, nothing turns in
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not impleading the treating doctor as a party. Once an allegation
is made that the patient was admitted in a particular hospital and
evidence is produced to satisfy that he died because of lack of
proper care and negligence, then the burden lies on the hospital
to justify that there was no negligence on the part of the treating
doctor/ or hospital. Therefore, in any case, the hospital which is
in better position to disclose that what care was taken or what
medicine was administered to the patient. It is the duty of the
hospital to satisfy that there was no lack of care or diligence. The
hospitals are institutions, people expect better and efficient
service, if the hospital fails to discharge their duties through their
doctors being employed on job basis or employed on contract
basis, it is the hospital which has to justify and by not
impleading a particular doctor will not absolve the hospital of
their responsibilities.
In the result, we allow this appeal, set aside the order
dated 6.2.2003 passed by the National Consumer Disputes
Redressal Commission, New Delhi in Original Petition No.121 of
1995 and remit back the original petition to the National
Consumer Disputes Redressal Commission to be decided in
accordance with law. No order as to costs.