CIVIL APPEAL NO. 10347 OF 2010
MRS. KALYANI RAJAN …. APPELLANT
VERSUS
INDRAPRASTHA APOLLO HOSPITAL
& ORS. …RESPONDENTS
J U D G M E N T
PRASHANT KUMAR MISHRA, J.
The present appeal is directed against the order passed by
the National Consumer Disputes Redressal Commission1 dated
03.08.2010 whereby the complaint filed by the appellant and
proforma respondent No. 3 under Section 2 (c)(iii) of the
Consumer Protection Act, 19862 was rejected.
1
(for short, ‘the Commission’)
2
(for short, ‘the Act’)
2
2. The complainant-appellant is the wife of the deceased
patient namely, Sankar Rajan
3
, who was 37 years old and died
on 06.11.1998 in the hospital-respondent no. 1 herein while
undergoing follow up care and treatment after a major
neurosurgery in the care of respondent nos. 1 and 2. The
deceased was under the employment of proforma respondent
no. 3 and was earning handsome annual package at the time of
his demise.
3. The deceased was suffering from Chiari Malformations
(Type II) with Hydrocephalous. The deceased consulted Dr. Ravi
Bhatia – respondent no. 2, Senior Consultant, Department of
Neurosurgery of respondent no. 1-hospital on 21.10.1998, who
advised him to get admitted to respondent no. 1-hospital where
the surgery would be performed by him. As per the advice of
respondent no. 2, the deceased got himself admitted to
respondent no. 1 on 29.10.1998. After performing preoperative medical examinations, respondent no. 2 conducted
the operation of the deceased. The deceased was thereafter
shifted to private room at about 04.15 p.m and at about 04.30
p.m, the doctors visiting the deceased were informed about
3
(for short, ‘the deceased’)
3
pain in the neck region, which seemed to have transferred
downward lower than the region where pain used to occur prior
to operation. At about 06.30 p.m. the deceased was given pain
reliever intravenously, but the pain increased along with severe
sweat spells. At about 09.15 p.m, the deceased started
suffering from severe unbearable pain. The complainantappellant called respondent no. 2 at his residential phone but
he was not available. At about 09.30 p.m. another pain killer
was intravenously given. At about 11.00 p.m. complainantappellant talked to respondent no. 2 at his residence. The
deceased had suffered heart attack around 11.00 p.m. The
deceased was declared brain dead on 31.10.1998. He was kept
on life support till his death on 06.11.1998.
4. The grievance of complainant-appellant is that the
deceased was not attended to by any doctor from neurosurgery
team who had operated the deceased after he was shifted into
the private room till 11.00 P.M. After such major surgery,
instead of shifting to a private room, the deceased should have
been shifted to the Intensive Care Unit4
.
4
(for short, ‘ICU’)
4
Findings of Commission (Impugned Order)
5. The allegation in the complaint is mainly apropos lack of
medical care from the time he was shifted to the Private room
till he suffered a cardiac arrest at around 11:00 PM. However,
the appellant herein has not been able to establish by any
cogent evidence or material on record that the heart attack
suffered by the deceased had any connection with the
operation in question or on account of lack of post-operative
care.
6. The said finding has been supported by an affidavit of
Prof. Gulshan Kumar Ahuja who was professor of neurosurgery
in AIIMS & Senior Consultant at R-1/hospital at that time and
he has opined that complications suffered by the deceased
were totally unrelated to the surgery conducted by R-2. He has
further stated that pain in the neck accompanied by symptoms
of profuse sweating and nausea cannot be a symptom of
cardiac respiratory arrest.
7. The deceased did not have any history of diabetes or
hypertension as has been stated by R-2 herein in his evidence
neither did he have any heart problem. The said pain in the
5
neck was on account of cervical operation. No material on
record to show that the deceased was in pain in any other
region of his body. The appellant’s contention apropos the
deceased sweating is not met out with in the medical records
except for once at 9PM.
8. The appellant herein drew the attention to the observation
made in Martin F. D’Souza v. Mohd. Ishfaq5
that no prescription
should ordinarily be given without actual examination and the
tendency to prescription over the phone except in acute
emergency should be avoided. These observations would not be
applicable to the said present case since the deceased had
complained about pain on the neck for which he had been
operated and medicine given by Dr. Tyagi over the phone was
only apropos pain on the neck.
9. In the facts and circumstances, no case of medical
negligence has been proved nor can it be said that the
aftercare treatment of the deceased till he suffered a cardiac
arrest was inadequate so as to hold the respondents herein
5 (2009) 3 SCC 1
6
liable for medical negligence. Principle of Res Ipsa Locutor does
not apply to the facts and circumstances of the said case.
Submissions advanced on behalf of the Appellant
apropos Medical Negligence by the Respondents:
10. Shri Nikhil Nayyar, learned senior counsel appearing for
the appellant submits that the deceased died due to cardiac
arrest, albeit, admittedly, the deceased had no cardiac
problems. He would further submit that at the time of
admission the deceased was informed that after the surgery he
would be shifted to the ICU. However, he was shifted from the
recovery room directly to a private room and not to the ICU.
11. In respect of lack of care, he submits that, Dr. Brahm
Prakash & Dr. S. Tyagi, visited the room at around 4.30 p.m.
and the deceased mentioned about pain in the neck region. The
said complaint by the deceased was dismissed as post
operative symptom. The said visit was the only visit by R-2 and
other specialists post the surgery in the private room till the
deceased lost consciousness. Since the pain was not reducing,
the Duty Doctor spoke to Dr. Tyagi around 7.15 p.m. on
telephone on the basis which Nimulid was prescribed by Dr.
7
Tyagi. Thereafter, Dr. Tyagi had a telephonic conversation with
the deceased wherein he was informed that Nimulid did give
some temporary relief, basis which he concluded that the
symptoms of pain felt by the patient were clearly normal post
operative reaction.
12. It is submitted that the patient had an episode of
Ventricular Tachycardia (‘VT’) and R-2 in his admission has
stated that VT is not his area of expertise and in such cases,
patient should have been referred to the appropriate doctor.
However, this was not done and no consultant/specialist with
the relevant expertise was available to attend to the medical
needs of the deceased.
13. Apropos the findings of the impugned order, the appellant
herein refutes the same and submits that they are contrary to
the facts on record which establishes negligence of the
respondents in the post operative care of the deceased.
14. Learned senior counsel further states that the
Commission has not appreciated that the present case reflects
clear example of negligence due to absence of care. In support
of this, he states that there was: i) complete absence of senior
8
doctor, surgeon/specialist to respond to patient’s distress call
from the time the patient was shifted to the room/ward till the
time he became unconscious and; ii) absence of investigation
of pain to diagnose the cause.
Submissions on behalf of Respondent No.1/Hospital
15. Dr. Lalit Bhasin, learned counsel appearing for respondent
no. 1 would submit that respondent no. 1 is one of the best
hospitals equipped with latest medical equipments and the
patient was looked after by Dr. Ravi Bhatia of international
repute, who was formerly Professor and Head of the NeuroSurgery and he was assisted by Dr. Brahm Prakash, senior
Neurosurgeon. It was also submitted that patient had made
excellent recovery after neurosurgery and there were no post
operative complications, therefore, he was shifted to recovery
room and thereafter to private room.
16. Learned counsel has drawn our attention to the records of
the hospital containing pre and post operative history of the
patient. Thus, according to learned counsel, there is no
negligence on the part of the hospital or the treating doctors.
9
17. Learned counsel for respondent no. 1 refutes the
contentions of the appellant and submits that in view of the
findings of the Commission and the dicta of this Court in
Bombay Hospital & Medical Research Centre v. Asha
Jaiswal and Others6
,the present appeal is liable to be
dismissed.
Submissions on behalf of Respondent-No.2/Dr. Bhatia
18. Ms. Meenakshi Arora, learned senior counsel for
respondent no. 2 adopts the submissions advanced on behalf of
respondent no. 1 apropos findings of the Commission in the
impugned order as well as the dicta of this Court in Bombay
Hospital (supra).
19. Additionally, respondent no. 2 submits that it was
explained to the appellant and the deceased that the patient
would be examined in the recovery room first and thereafter as
per standard practice followed by the hospital, all patients who
6 2021 SCC online SC 1149
10
do not show signs of complications in the Recovery Room and
have no pre-operative medical problems are shifted to their
ward/room. In case the patient develops some post-operative
complications that requires round the clock care and
observation, he/she would be transferred to the Neurology
Intensive Care Unit. Respondent no. 2 also submits that the
deceased had regained full consciousness at the time when he
had been moved from the Operation Theatre to the Recovery
Room. Also, less than half the numbers of neurosurgical
patients operated upon are moved from the OT to Recovery
Room and then to Neurosurgery ICU. In support of the same,
he has submitted data of respondent no.1/hospital apropos the
neurosurgeries conducted and number of patients transferred
to Neuro ICU thereafter.
20. Learned senior counsel further submits that Dr. Brahm
Prakash of the Neuro-Sciences Department at the R-1/hospital
met the deceased, and no complaint was made by the patient
at that time. Similarly, at about 5 p.m. he along with Dr. Tyagi
met with the deceased and examined him. The deceased at
that time complained of only a mild neck pain, which is normal
11
after an operation on the cervical (neck) region. Thereafter, he
left the hospital for his premises and submits that since the
time he left i.e., around 5,30 p.m. till the time he received a
phone call from the appellant at about 11.15 p.m. about the
condition of the deceased, he had not received any calls on his
mobile phone or his landline, nor was any message left for him
at his residence.
21. Learned senior counsel categorically refutes the
contentions of the appellant and submits that the impugned
order suffers from no infirmity warranting interference by this
Court and is liable to be accordingly dismissed.
Analysis and Findings:
22. The crucial issue to be decided is whether the respondents
have committed negligence in not providing proper postoperative medical care to the patient and, accordingly, whether
the Commission has committed any illegality while dismissing
the complaint filed by the appellant herein.
23. Concededly, the complainant has never questioned the
diagnosis and recommended surgical treatment given to him by
12
respondent no. 2-Dr. Bhatia. It is not the case of the
complainant that Dr. Bhatia was negligent in performing the
Neurosurgery. Thus, the entire case of the complainant was
about lack of proper post-operative medical care. On this
score, the allegation is that the patient should have been
shifted to ICU instead of shifting him to a private room. The
material available on the record demonstrates that as per the
standard practice, all patients who show no signs of
complications in the recovery room and have no post or preoperative complications are sent to their rooms. According to
the figures submitted by the respondents, during the months of
September to November 1998, out of 166 neurosurgeries, only
68 patients were sent to the ICU from the recovery room in the
hospital of respondent no. 1. The rest were sent back to their
wards in accordance with standard procedure. It is the stand
of respondent no. 2 that there exists no link or interconnection
between post-operative treatment/care and the cardiac arrest
suffered by the deceased. The symptoms, which emerged after
the deceased was discharged from the Operation Theatre, were
not the symptoms, which typically precede a cardiac arrest.
Since, the deceased did not have any known or identifiable
13
heart ailments, it was impossible for the respondents to have
prior knowledge that the patient may develop cardiac problem
after few hours of the successful surgery. The symptoms,
including dizziness, sweating, and pain in the neck area,
experienced by the deceased post-surgery, could not be treated
as post-surgery reactions. The patient would have been shifted
to the ICU immediately, if serious complications would have
arisen after the surgery, therefore, in the absence of
complications in the surgery or soon thereafter, the patient was
not required to be shifted to ICU and there is no negligence on
this count by either of the respondents.
24. On the issue as to when a medical officer may be held
liable for negligence, this Court in Jacob Mathew v. State of
Punjab and Another7 has observed thus:
“A professional may be held liable for
negligence on one of the two findings: either
he was not possessed of the requisite skill
which he professed to have possessed, or, he
did not exercise, with reasonable competence
in the given case, the skill which he did
possess. The standard to be applied for
judging, whether the person charged has been
negligent or not, would be that of an ordinary
competent person exercising ordinary skill in
7 (2005) 6 SCC 1
14
that profession. It is not possible for every
professional to possess the highest level of
expertise or skills in that branch which he
practices. A highly skilled professional may be
possessed of better qualities, but that cannot
be made the basis or the yardstick for judging
the performance of the professional proceeded
against on indictment of negligence.”
25. The next limb of allegation apropos negligence is that the
deceased was not attended to by any doctor from neurosurgery
team after he was shifted into the private room till 11.00 p.m.
when he suffered cardiac arrest. Material placed before this
Court including the record maintained by the hospital would
reveal that the patient was examined by Dr. Brahm Prakash, Dr.
Ravi Bhatia and Dr. Tyagi after the patient was shifted to the
private room. He had complained of pain in the neck region to
Dr. Ravi Bhatia and the patient was told that it was on account
of the operation. Pain in the neck region started increasing at
06:00 p.m. for which injection was given. When the doctor on
duty contacted Dr. Tyagi, he was instructed to give tablet
Nimulid. Except for the pain in neck region, the patient did not
complain of pain in any other part of his body. The attending
nurse called Dr. Tyagi at around 08:15 p.m. to inform him that
the patient is complaining about the problem of sweating, pain
15
and dizziness which, according to Dr. Tyagi, were normal post
operative reactions. Dr. Tyagi spoke to the complainant and the
patient on which the patient informed him that he was better.
At 09:30 p.m. pain killer was given and around 11:00 p.m., the
patient lost consciousness due to severe cardiac arrest. Dr.
Ravi Bhatia was informed, and he immediately came to the
hospital. Thereafter, all required steps were taken as revealed
from the hospital record. There is no evidence put forth by the
complainant to establish that heart attack suffered by the
patient had any connection with the operation in question or
that it was on account of negligent post operative care.
26. The respondents have filed affidavit of Prof. Gulshan
Kumar Ahuja, professor of neurosurgery in AIIMS and Senior
Consultant in Neurology at Respondent No.1-Hospital. After
going through the record and CT Scan dated 04.11.1998, Dr.
Ahuja opined that the record did not show any abnormality at
the operated site and the complications suffered by the patient
were totally unrelated to the surgery conducted by Respondent
No. 2. While answering the interrogatories, Dr. Ahuja stated
16
that pain in the neck along with sweating and nausea are not
the symptoms of cardiac respiratory arrest.
27. It is significant to notice that the patient did not have any
history of diabetes or hypertension or any cardiac problem.
Therefore, it was difficult for treating doctors including the duty
doctor or the hospital to assume that the patient may suffer
cardiac arrest and moreover, the patient had also not
complained of pain in any other part of the body except neck
region. As per the medical record, the patient complained of
sweating only around 09:00 p.m. on which Dr. Tyagi spoke to
the patient.
28. In the matter of Bombay Hospital (supra) this Court has
elaborately considered previous judgments on the subject to
hold thus:
“16.………..It was argued that the professional
competence of Doctor has not been doubted even by
the Commission but two factors have been taken
against the Doctor for holding him negligent; first, that
he did not visit the patient soon after the surgery till
9/9.30 a.m. on the next day to verify the blood flow
after the surgery, and second, he did not visit the
patient from 29.4.1998 to 9.5.1998 when he was in
Mumbai and from 9.5.1998 to 7.6.1998 when he went
abroad for attending medical conferences.
17
XXX
23 ……… There is no proof that there was any
negligence in performing the surgery on 23.4.1998 or
in the process of re-exploration on 24.4.1998. The
allegation is of failure of the Doctor to take the followup action after surgery on 23.4.1998, a delayed
decision to amputate the leg subsequent to reexploration on 24.4.1998, and the alleged undue
foreign visit of the Doctor.
29. In Martin F. D’Souza v. Mohd. Ishfaq(2009) 3 SCC
1, this court observed that the doctor cannot be held
liable for medical negligence by applying the doctrine
of res ipsa loquitur for the reason that a patient has
not favourably responded to a treatment given by a
doctor or a surgery has failed. There is a tendency to
blame the doctor when a patient dies or suffers some
mishap. This is an intolerant conduct of the family
members to not accept the death in such cases. The
increased cases of manhandling of medical
professionals who worked day and night without their
comfort has been very well seen in this pandemic. This
Court held as under:
“40. Simply because a patient has not
favourably responded to a treatment given by
a doctor or a surgery has failed, the doctor
cannot be held straightaway liable for medical
negligence by applying the doctrine of res ipsa
loquitur. No sensible professional would
intentionally commit an act or omission which
would result in harm or injury to the patient
since the professional reputation of the
professional would be at stake. A single failure
may cost him dear in his lapse.
18
xxx xxx xxx
42. When a patient dies or suffers some
mishap, there is a tendency to blame the
doctor for this. Things have gone wrong and,
therefore, somebody must be punished for it.
However, it is well known that even the best
professionals, what to say of the average
professional, sometimes have failures. A
lawyer cannot win every case in his
professional career but surely he cannot be
penalised for losing a case provided he
appeared in it and made his submissions.”

XXX
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S.
Ramanujam[(2009) 7 SCC 130], this Court held that
the Commission ought not to presume that the
allegations in the complaint are inviolable truth even
though they remained unsupported by any evidence.
This Court held as under:
“37. We find from a reading of the order of
the Commission that it proceeded on the
basis that whatever had been alleged in the
complaint by the respondent was in fact the
inviolable truth even though it remained
unsupported by any evidence. As already
observed in Jacob Mathew case [(2005) 6
SCC 1] the onus to prove medical negligence
lies largely on the claimant and that this onus
can be discharged by leading cogent
evidence. A mere averment in a complaint
which is denied by the other side can, by no
stretch of imagination, be said to be evidence
by which the case of the complainant can be
said to be proved. It is the obligation of the
19
complainant to provide the facta probanda as
well as the facta probantia.”
33. In another judgment reported as Kusum
Sharma v. Batra Hospital and Medical Research
Centre[(2010) 3 SCC 480], a complaint was filed
attributing medical negligence to a doctor who
performed the surgery but while performing surgery,
the tumour was found to be malignant. The patient
died later on after prolonged treatment in different
hospitals. This Court held as under:
“47. Medical science has conferred great
benefits on mankind, but these benefits are
attended by considerable risks. Every surgical
operation is attended by risks. We cannot
take the benefits without taking risks. Every
advancement in technique is also attended by
risks.
xxx xxx xxx
72. The ratio of Bolam case [[1957] 1 WLR
582 : (1957) 2 All ER 118] is that it is enough
for the defendant to show that the standard
of care and the skill attained was that of the
ordinary competent medical practitioner
exercising an ordinary degree of professional
skill. The fact that the respondent charged
with negligence acted in accordance with the
general and approved practice is enough to
clear him of the charge. Two things are
pertinent to be noted. Firstly, the standard of
care, when assessing the practice as adopted,
is judged in the light of knowledge available
at the time (of the incident), and not at the
date of trial. Secondly, when the charge of
negligence arises out of failure to use some
particular equipment, the charge would fail if
20
the equipment was not generally available at
that point of time on which it is suggested as
should have been used.
xxx xxx xxx
78. It is a matter of common knowledge that
after happening of some unfortunate event,
there is a marked tendency to look for a
human factor to blame for an untoward
event, a tendency which is closely linked with
the desire to punish. Things have gone wrong
and, therefore, somebody must be found to
answer for it. A professional deserves total
protection. The Penal Code, 1860 has taken
care to ensure that people who act in good
faith should not be punished. Sections 88, 92
and 370 of the Penal Code give adequate
protection to the professionals and
particularly medical professionals.”
34. Recently, this Court in a judgment reported as Dr.
Harish Kumar Khurana v. Joginder Singh[2021 SCC
OnLine SC 673] held that hospital and the doctors are
required to exercise sufficient care in treating the
patient in all circumstances. However, in an unfortunate
case, death may occur. It is necessary that sufficient
material or medical evidence should be available before
the adjudicating authority to arrive at the conclusion
that death is due to medical negligence. Every death of
a patient cannot on the face of it be considered to be
medical negligence. The Court held as under:
“11. …….. Ordinarily an accident means an
unintended and unforeseen injurious
occurrence, something that does not occur
in the usual course of events or that could
not be reasonably anticipated. The learned
21
counsel has also referred to the decision
in Martin F.D’Souza v. Mohd. Ishfaq, (2009)
3 SCC 1 wherein it is stated that simply
because the patient has not favourably
responded to a treatment given by doctor or
a surgery has failed, the doctor cannot be
held straight away liable for medical
negligence by applying the doctrine of Res
Ipsa Loquitor. It is further observed therein
that sometimes despite best efforts the
treatment of a doctor fails and the same
does not mean that the doctor or the
surgeon must be held guilty of medical
negligence unless there is some strong
evidence to suggest that the doctor is
negligent.
xxx xxx xxx
14.Having noted the decisions relied upon by
the learned counsel for the parties, it is clear
that in every case where the treatment is
not successful or the patient dies during
surgery, it cannot be automatically assumed
that the medical professional was negligent.
To indicate negligence there should be
material available on record or else
appropriate medical evidence should be
tendered. The negligence alleged should be
so glaring, in which event the principle of res
ipsa loquitur could be made applicable and
not based on perception. In the instant case,
apart from the allegations made by the
claimants before the NCDRC both in the
complaint and in the affidavit filed in the
proceedings, there is no other medical
evidence tendered by the complainant to
indicate negligence on the part of the
22
doctors who, on their own behalf had
explained their position relating to the
medical process in their affidavit to explain
there was no negligence. ………………”
36. As discussed above, the sole basis of finding the
appellants negligent was res ipsa loquitor which would
not be applicable herein keeping in view the treatment
record produced by the Hospital and/or the Doctor.
There was never a stage when the patient was left
unattended. The patient was in a critical condition and
if he could not survive even after surgery, the blame
cannot be passed on to the Hospital and the Doctor
who provided all possible treatment within their means
and capacity. The DSA test was conducted by the
Hospital itself on 22.4.1998. However, since it became
dysfunctional on 24.4.1998 and considering the critical
condition of the patient, an alternative angiography test
was advised and conducted and the re-exploration was
thus planned. It is only a matter of chance that all the
four operation theatres of the Hospital were occupied
when the patient was to undergo surgery. We do not
find that the expectation of the patient to have an
emergency operation theatre is reasonable as the
hospital can provide only as many operation theatres as
the patient load warrants. If the operation theatres
were occupied at the time when the operation of the
patient was contemplated, it cannot be said that there
is a negligence on the part of the Hospital. A team of
specialist doctors was available and also have attended
to the patient but unfortunately nature had the last
word and the patient breathed his last. The family may
not have coped with the loss of their loved one, but the
Hospital and the Doctor cannot be blamed as they
provided the requisite care at all given times. No doctor
can assure life to his patient but can only attempt to
treat his patient to the best of his ability which was
being done in the present case as well.”
23
29. In so far as the applicability of principles of Res Ipsa
Locutor, in the fact and circumstances of the case, it is to bear
in mind that the principles get attracted where circumstances
strongly suggest partaking in negligent behaviour by the
person against whom an accusation of negligence is made. For
applying the principles of Res Ipsa Locutor, it is necessary that
a ‘Res’ is present to establish the allegation of negligence.
Strong incriminating circumstantial or documentary evidence is
required for application of the doctrine.
30. In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee
and Ors.
8
this Court has observed in paragraph 34 as follows:
“34. Charge of professional negligence on a
medical person is a serious one as it affects his
professional status and reputation and as such
the burden of proof would be more onerous. A
doctor cannot be held negligent only because
something has gone wrong. He also cannot be
held liable for mischance or misadventure or for
an error of judgment in making a choice when
two options are available. The mistake in
diagnosis is not necessarily a negligent
diagnosis.”
8 (2009) 9 SCC 221
24
31. The case in hand stands on a better footing, in as much as
there was no mistake in diagnosis or a negligent diagnosis by
Respondent no. 2. In the absence of the patient having any
history of diabetes, hypertension, or cardiac problem, it is
difficult to foresee a possible cardiac problem only because the
patient had suffered pain in the neck region.
32. For the foregoing, this Court is of the considered view that
the appellant has failed to establish negligence on the part of
Respondents in taking post operative care and the findings in
this regard recorded by the Commission does not suffer from
any illegality or perversity.
33. The appeal sans substance and is, accordingly, dismissed.
34. Pending application(s), if any, shall stand disposed of.

………………………………………J.
(A.S. BOPANNA)
…….……………………………….J.
(PRASHANT KUMAR MISHRA)
NEW DELHI;
OCTOBER 17, 2023.