Ghisa Ram vs P.K.BANSAL

SHRI Ghisa Ram, the complainant, has filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') against the abovesaid opposite parties, averring therein that the complainant, who is working as a Meter Tester in Delhi Vidyut Board, was suffering from ailment [Fracture Neck (right), Fernier (hip bone)], since 5th August, 1996. It is stated that the complainant, for the treatment of the above ailment, got himself admitted in the Nursing Home of opposite party No. 2 and his treatment was started under the supervision and control of opposite party No. 1. It is stated that the complainant had followed the instructions and prescriptions given by O.P. No. 1 and had also made payments in respect of the bills raised by O.P. No. 2 from time to time. It is stated that despite following the instructions and the prescriptions given by O.P. No. 1, there was no improvement in the condition of the complainant and the above fact was pointed out by the complainant to O.P. No. 1, but O.P. No. 1 every time assured the complainant that he was being treated on right lines. It is stated that when there was no improvement in the condition of the complainant, the complainant approached a Doctor in St. Stephen''s Hospital, on 20th April, 1998 and had taken treatment of that Doctor of St. Stephen''s Hospital from 20th April, 1998 to 1st May, 1998. It is stated that only within ten days of the treatment given by the Doctor of St. Stephen''s Hospital, there was marked improvement in the condition of the complainant. It is stated that the above fact is indicative of the fact that there was negligence and lack of devotion on the part of the opposite parties. It is stated that the complainant had spent about Rs. 3,00,000/- in having treatment from O.P. Nos. 1 and 2 without any relief. It is also stated that apart from the expenses incurred by the complainant in his treatment from O.P. Nos. 1 and 2, the complainant had to remain on leave without pay for about 21 months and thus had to suffer a loss of salary to the extent of Rs. 2,25,000/-. It is stated that the health of the complainant also deteriorated. In the complaint filed by the complainant, the complainant has claimed a sum of Rs. 14,25,000/- as detailed in paragraph 4 of the complaint, to be paid by the opposite parties to him, together with interest and cost of litigation on account of the alleged deficiency in service.

A notice of the complaint was issued to the opposite parties and both the opposite parties have filed separate replies/written versions. In the reply/written version, filed on behalf of the O.P. No. 1 certain preliminary objections have been taken with regard to the maintainability of the complaint, filed by the complainant. On merits it is stated that on 5th August, 1996, the complainant got himself examined from O.P. No. 1 and his X-ray was taken at Bali Nursing Home (O.P. No. 2) and thereafter the complainant left. It is stated that thereafter on 6th August, 1996, the complainant reached the Nursing Home (O.P. No. 2) and was admitted on that very day at about 1.45 p.m. It is stated that after admission in the Nursing Home of O.P. No. 2, the complainant was examined by the Resident Medical Officer (RMO) of O.P. No. 2 and thereafter O.P. No. 1 was intimated about the admission of the complainant by O.P. No. 2 on pager. It is stated that the RMO gave the history of the complainant that he had a fall from the stairs in his house on 4th August, 1996. It is stated that the complainant was given the right and proper treatment and O.P. No. 1, while treating the complainant, acted with due diligence and did everything possible and carefully to treat the complainant. It is stated that in October, 1996, the complainant was advised ankle fraction and later in December, 1996, the complainant was advised in physiotherapy. It is further stated that in January, 1997, the complainant was given some medicines and after January, 1997, O.P. No. 1 was contacted by the complainant only in August, 1997. It is stated that in August, 1997 the complainant visited O.P. No. 1 for the last time and on the basis of the problems orally explained, a sample for biopsy was sent; it is stated that thereafter the complainant never contacted O.P. No. 1; it is stated that O.P. No. 1 was not aware about the treatment given at St. Stephen''s Hospital, as no details were given. It is stated that the claim of the complainant in the present complaint is highly exaggerated. The contention of the complainant that he had spent about Rs. 3,00,000/- for treatment, has been specifically denied. The other allegations levelled by the complainant in the complaint have also been specifically denied. It is stated that the complaint filed by the complainant deserves to be dismissed with costs. O.P. No. 2 has filed a separate reply/written version. In the reply/written version, filed on behalf of O.P. No. 2 also, certain preliminary objections have been taken stating that the complaint filed by the complainant is false, baseless, misconceived and that the complainant had never been under the treatment of either O.P. No. 1 or O.P. No. 2 from 5th August, 1996 to 1st May, 1998. It is stated that the complainant has failed to disclose any cause of action whatsoever against O.P. Nos. 1 and 2, therefore, the complaint is liable to be rejected on the above ground alone. It is stated that there was no deficiency in service on the part of O.P. No. 2 with respect to complainant. One of the preliminary objections taken is that the complaint filed by the complainant is barred by limitation and deserves to be rejected on the above ground alone.

On merits, it is stated that the complainant with the history of a fall from the stairs of his house on 4th August, 1996, reported at the Nursing Home (O.P. No. 2) on 6th August, 1996 at 1.45 p.m. with right neck femur, which needed partial hip replacement. It is stated that the complainant was admitted as an indoor patient from 6th August to 13th August, 1996 and his medical parameters at the time of his admission were as under : "His right thigh including the hip joint had fractured neck femur, temp. 98.6F, Pulse rate 90/m Blood Pressure 160/96, Right leg immobile, Edima (+) at right ankle."

"Lab Test On 7.8.1996, haemoglobin 7.8%, TLC 7900, Blood Sugar 128.7, Blood Urea 26.4."

It is further stated that at the time of admission, the complainant was highly anemic and had to be given blood transfusion for four days from 7.8.1996 to 10.8.1996 and on achieving a stable condition he was discharged on 13.8.1996. It is stated that the total bills raised by O.P. No. 2 were for Rs. 13,770/- only, which included operation charges and partial hip replacement charges. The assertion of the complainant that he had followed all the instructions and prescription given by O.P. No. 1 has been specifically denied. The other allegations contained in the complaint are also specifically denied and it is stated that after his discharge from the Nursing Home (O.P. No. 2) on 13th August, 1996, the complainant visited O.P. No. 1 at the Nursing Home (O.P. No. 2) after more than two months of his hip replacement. It is stated that had the partial hip replacement operation been not satisfactorily conducted, he would have not stayed at home for more than two months quitely. It is stated that on 28th October, 1996 the complainant consulted O.P. No. 1 as an outdoor patient and was prescribed proper treatment and medicine for his ailments. It is further stated that thereafter, the complainant again visited O.P. No. 1 on 5th December, 1996 and was advised physiotherapy and no other treatment. It is stated that thereafter the complainant again visited on 2.1.1997 and on 7.1.1997, when he was prescribed treatment for ten days. It is stated that after 7.1.1997, the complainant did not visit the Nursing Home of O.P. No. 2 nor consulted O.P. No. 1 for a period of seven months. It is stated that during the above period of seven months what was the state of health and what treatment was being taken by the complainant was not known to either O.P. No. 1 or O.P. No. 2 and that the complainant has made an incorrect and false statement that he remained under the treatment of O.P. No. 1 from 5.8.1996 to 20.4.1998. It is stated that as regards O.P. No. 2, the complainant in the complaint has not alleged anything against the services rendered by the Nursing Home (O.P. No. 2). The complainant was charged room rent, charges for X-rays, Lab Tests, medicines, nursing care charges, surgeon''s visits, foods supplied to him and in no way O.P. No. 2 can be blamed for any deficiency in service on the above counts. The assertion of the complainant that he had spent about Rs. 3,00,000/- on his treatment, is also specifically denied and it is stated that O.P. No. 2 has charged only Rs. 13,770/-. The other allegations made in the complaint have also been specifically denied. It is stated that the complaint, filed by the complainant, is untenable, highly vague, false and incorrect and the same deserves to be dismissed with heavy costs.

THE complainant has filed rejoinder to the reply/written version filed on behalf of O.P. Nos. 1 and 2, controverting the pleas taken by the O.Ps. in the reply/written version and reiterating the averments made in the complaint. THE complainant and the opposite parties have adduced evidence in support of their respective contentions by means of affidavits. THE complainant, Shri Ghisa Ram, has filed his own affidavit, whereas O.P. No. 1, Dr. P.K. Bansal, has also filed his own affidavit, dated 28th May, 2001 by way of evidence. On behalf of O.P. No. 2, an affidavit has been filed by Dr. R.K. Bali, Director of Bali Nursing Home. We have heard the learned Counsel for the complainant, the learned Counsel for O.P. Nos. 1 and 2 and have also carefully gone through the documents/material on record, including the written submissions/arguments filed. On the basis of pleas taken by the parties, the contentions advanced at the Bar and the material placed on record, the following questions arise for our consideration in the present complaint : (1) Whether the complainant in the present complaint, is a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act ? (2) Whether the opposite parties (O.P. Nos. 1 and 2), were rendering any ''service'' to the complainant within the meaning of Section 2(1)(o) of the Act ? (3) Whether was there any ''deficiency in service'' (negligence) on the part of opposite party Nos. 1 and 2 within the meaning of Section 2(1)(g) of the Act ? and (4) Whether the complainant is entitled to any relief ? If so, to what extent and from which of the opposite parties ?

Question Nos. 1 and 2 :

SINCE the above mentioned questions are inter-connected, we would be discussing the same jointly. The term "consumer" means has been defined in Section 2(1)(d) of the Act, and the same reads as under : " ''consumer'' means any person who- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

Explanation.-For the purposes of Sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment." On a bare perusal of the above provisions of the Act, it is apparent that the definition of the word "consumer", as defined in Clause (d) of Sub-section (1) of Section 2 of the Act, is of a wide sweep which also includes a person who hires or avails of any service for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and also includes any beneficiary of such service. The above provision of the Act, as contained in Section 2(1)(d) of the Act, came up for consideration before the Hon''ble Supreme Court in case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243, and their Lordships of the Supreme Court in the abovesaid case have held : "...To begin with the Preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the ''interest of consumers''. Use of the word ''protection'' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact, the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory...The word ''consumer'' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business, house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as a ''purchaser of goods or services''. In Black''s Law Dictionary it is explained to mean, ''one who consumes''. Individuals who purchase, use, maintain and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices, for which State and Federal Consumer Protection Laws are enacted...."

"...The Legislature has taken precaution not only to define ''complaint'', ''complainant'', ''consumer'', but even to mention in detail what would amount to unfair trade practices by giving an elaborate definition in Clause (r) and even to define ''defect'' and ''deficiency'' by Clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services..."

(p. 251) As already stated, the opposite parties in the written version inter alia have taken a preliminary objection that in the given facts, the opposite parties were not rendering any ''service'' to the complainants within the meaning of Section 2(1)(o) of the Act. This very question also came up for consideration before the Hon''ble Supreme Court-in case Indian Medical Association v. V.P. Shantha, JT 1995 (8) SC 119. In the abovesaid case, it was inter alia pleaded before the Hon''ble Supreme Court that the medical practitioners belonged to medical profession and were subject to the disciplinary control of the Medical Council of India and/or State Medical Councils, constituted under the provisions of the Indian Medical Council Act and, therefore, were excluded from the ambit of the Act and the service rendered to a patient by medical practitioner did not fall within the ambit and scope of ''service'' as defined in Section 2(1)(o) of the Act. Their Lordships of the Supreme Court, in the above landmark decision, while rejecting the plea taken by the appellants, held : "On the basis of the above discussions we arrive at the following conclusions : (1) Services rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ''service'' as defined in Section 2(1)(o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils, constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A contract of personal service has to be distinguished from a ''contract of personal service''. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ''contract of personal service''. Such service is service rendered under a ''contract for personal services'' and is not covered by exclusionary clause of the definition of ''service'' contained in Section 2(1)(o) of the Act.

(4) The expression ''contract of personal service'' in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical services to the employer. The services rendered by a medical officer to his employer under the contract of employment would be outside the purview of ''service'' as defined in Section 2(1)(o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a Hospital/Nursing Home or a medical officer employed in a Hospital/Nursing Home where such services are rendered free of charge to everybody, would not be ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the Hospital/Nursing Home would not alter the position.

(6) Service rendered at a non-Government Hospital/Nursing Home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the Hospital/Nursing Home would not alter the position.

(7) Service rendered at a non-Government Hospital/Nursing Home where charges are required to be paid by the person availing such services falls within the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act.

(8) Services rendered at a non-Government Hospital/Nursing Home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ''service'' and the recipient a ''consumer'' under the Act.

(9) Service rendered at a Government Hospital/Health Centre/Dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression ''service'' as defined in Section 2(1)(o) of the Act. The payment of token amount for registration purpose only at the Hospital/Nursing Home would not alter the position.

(10) Service rendered at a Government Hospital/Health Centre/Dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ''service'' and the recipient a ''consumer'' under the Act.

(11) Service rendered by a medical practitioner or Hospital/Nursing Home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the Insurance Company and such service would fall within the ambit of ''service'' as defined in Section 2(1)(o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ''service'' under Section 2(1)(o) of the Act."

On the basis of material on record, it is not in dispute that Bali Nursing Home (O.P. No. 2) is a non-Government Nursing Home where patients are treated on payment of fees and O.P. No. 1, Dr. P.K. Bansal, is the doctor treating the patients in the Nursing Home of O.P. No. 2 and thus rendering service to them for consideration (on payment of fees). It is also not in dispute that the complainant Shri Ghisa Ram got himself admitted for treatment in the Nursing Home (O.P. No. 2) on 6th August, 1996 and remained there till 13th August, 1996. In the Nursing Home of O.P. No. 2, he was treated by O.P. No. 1, and paid fees/charges to both O.P. Nos. 1 and 2. In the presence of the above undisputed facts, it is apparent that the complainant had availed of the services of O.P. Nos. 1 and 2 on payment of fees (consideration) for the treatment. In the light of the provisions contained in the Act, law laid down by the Hon''ble Supreme Court in the above noted decisions and in the presence of the facts, the correctness of which is not disputed by any of the parties, we have no hesitation in holding that the complainant, in the given facts, is a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act and O.P. Nos. 1 and 2 were rendering ''service'' within the meaning of Section 2(1)(o) of the Act. Question No. 3 :

THE case of the complainant in the present complaint, as already stated, in brief, is that there was ''negligence/deficiency in service'' in treating him while he was admitted for purposes of treatment in the Nursing Home of O.P. No. 2. On the other hand, it is the case of both O.P. Nos. 1 and 2 that the complainant was provided complete medical treatment, coupled with highest standard of care and that there was neither any ''deficiency in service'' nor any ''negligence'' on the part of any of the O.Ps. During the course of arguments, the learned Counsel for the O.Ps. vehemently contended that the present complaint, filed by the complainant, is full of concoction, false statement and virtually is an attempt to blackmail and to tarnish the reputation of O.P. Nos. 1 and 2. Before discussing the merits of the above aspect, we would like to first examine the legal position with regard to duties and obligations of a medical practitioner towards his patients.

THE civil liability of medical men towards their patients is, perhaps, compendiously stated in R. v. Bateman, (1925) 94 LJ KB 791, as follows : "If a person holds himself out as possessing special skill and knowledge and is consulted as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.... THE law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient''s death has been caused by the defendant''s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance. If the patient has been killed by his greed, ignorance and unskilfulness... As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. THEre may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely rare.... (See Charlesworth on Negligence, Fifty Edn., Pages 181 and 182, para 272)."

(Underlined by us) Lord Denning M.R. rightly pointed out in Hucks v. Cole, (1968) 118 New Law Journal 469, as follows : "A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure of inexcusable."

(Emphasis supplied) In Halsbury''s Laws of England, Volume 26, at page 17, the law is stated as under : "Negligence : duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

"Degree of skill and care required. 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; a person is not liable in negligence because someone else of better 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 reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men."

The principles so stated by Halsbury were affirmed by the Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128 at p. 131. Toylor''s Medical Jurisprudence, 12th Edition, at page 55, states : "Doctors must be profoundly indebted to Lord Justice Denning for his summing up in the case of Hatcher v. Black. The details of the negligence alleged are of no importance to the principles involved, but the generalization made in the Judge''s summing up speech was vital to a fair and just appraisal of doctors'' responsibilities. He said, ''in a hospital, when a person was ill and came in for treatment, no matter what care was used, there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable''... ''The jury must not, therefore, find him negligent simply because one of the risk inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure''."

IT is also necessary to bear in mind the following warning given to Courts by Goddard L.J., as he then was, in Mahon v. Osborne, (1939) 2 KB 14, at p. 47 : "I would not for a moment attempt to define in vacuo the extent of a surgeon''s duty in an operation beyond saying that he must use reasonable care nor can I imagine anything more disastrous to the community than to leave it to a Jury or to a Judge, if sitting alone, to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject. Moreover, it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh to rule. In the law of negligence, the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation, as held by the Privy Council in Overseas Tanskship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd., (1961) 1 All ER 404."

In Lord Nathan''s Medical Negligence, 1957 Edition, the following observations of Lord President Clyde in Hunter v. Honley, (1955) SLT 213, is relied upon at page 21 : "The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care."

At page 22 of the Book, it is stated : "The medical man must, therefore, exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class. If he does so, he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform cure. Naturally he will not be liable if, by reason of some peculiarity in the frame or constitution of a patient which was not reasonably to be anticipated, a treatment which, in ordinary circumstances, would be sound has unforeseen results. But will not even be liable for every slip or accident. The standard of care which the law requires is not insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence."

THEIR Lordships of the Hon''ble Supreme Court in case Achutrao Hari Bhavu Khodwa v. State of Maharashtra, I (1996) CLT 532 (SC)=(1996) 2 SCC 634, while placing reliance on earlier decisions of the Hon''ble Supreme Court, including the decision in the case of Indian Medical Association (supra), have held : "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 that 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."

(Emphasis supplied) Thus, in order to decide whether negligence is established in any particular case, the alleged act or omission or course of conduct, complained of, must be judged not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is not done with proper care and skill. There is no question of warranty, undertaking or perfection of a skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. As per the settled law a defendant charged with negligence can clear himself if he shows that he acted in accordance with the general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily in all cases evidence of negligence. If the above criterion is applied to the present case, the position is that as already stated it is an admitted fact that the complainant, with a previous history of fall from the stairs of his house, got himself admitted in the Nursing Home (O.P. No. 2) for treatment on 6th August, 1996. As per evidence adduced by the O.Ps. by means of affidavits, treatment as per the established procedure was given to the complainant and there was improvement in the condition of the complainant. The above averment made by both of O.Ps. in their affidavits has gone on record unrebutted and unchallenged. As per settled law, the onus to prove that there was negligence/deficiency in service on the part of the O.Ps. while treating the complainant, was on the complainant. As regards O.P. No. 2, neither in the complaint nor in the affidavit filed by way of evidence, it has been stated as to in what manner the services rendered provided by the O.P. No. 2 were lacking or deficient. On the contrary in the affidavit of Dr. R.K. Bali, it has been specifically stated that proper services were rendered to the complainant by the Nursing Home of O.P. No. 2 when the complainant was admitted in the Nursing Home of O.P. No. 2. It is stated by the complainant that the basis of his arriving at the conclusion that the treatment given to him was not proper, is the subsequent treatment alleged to have been taken by him from the doctors of St. Stephen''s Hospital from 20th April, 1998 to 1st May, 1998. No document or any affidavit from the concerned doctors of St. Stephen''s Hospital to the above effect has been filed that the treatment earlier given by O.P. No. 1 in the Nursing Home of O.P. No. 2 was deficient or the abovesaid O.Ps. were negligent in any manner. In view of the position explained above, in our opinion, the complainant has not been able to prove that there was any negligence or deficiency in service on the part of O.P. Nos. 1 and 2 while treating him within the meaning of Section 2(1)(g) of the Act. Question No. 4 : In view of our finding in respect of Question No. 3 above, the complainant in the given facts is not entitled to any relief. The present complaint, filed by the complainant, therefore, deserves to be dismissed. Accordingly, the same is dismissed. In the facts and circumstances of the case, the parties are left to bear their costs. Complaint dismissed.