Neeraj Sud vs Jaswinder Singh (Minor)

2024 INSC 825 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 272 OF 2012

NEERAJ SUD AND ANR. …APPELLANT(S)

VERSUS

JASWINDER SINGH (MINOR) AND ANR. …RESPONDENT(S)

with

CIVIL APPEAL NO.5526 OF 2012

JASWINDER SINGH (MINOR) AND ANR. …APPELLANT(S)

VERSUS

NEERAJ SUD AND ANR …RESPONDENT(S)

JUDGMENT

PANKAJ MITHAL, J.

1. Heard learned counsel for the parties.

2. Both the above appeals arise out of the common

judgment and order dated 24.08.2011 passed by National

Consumer Disputes Redressal Commission1, New Delhi

Signature Not Verified deciding First Appeal No.245/2005 filed by the Digitally signed by geeta ahuja

complainants against Dr. Neeraj Sud and the Post Date: 2024.10.25 16:52:43 IST Reason:

1

Hereinafter referred to as ‘NCDRC’

1 Graduate Institute of Medical Education & Research2,

Chandigarh.

3. The complaint of the complainants i.e. Complaint Case

No.29/1998 regarding medical negligence against Dr.

Neeraj Sud and the PGI was dismissed by the State

Commission vide judgment and order dated 27.05.2005.

Aggrieved by the above decision, the complainants

preferred appeal before the NCDRC. After remand in the

first round, the matter again came up before the NCDRC

wherein the present impugned order has been passed

and the complaint has been partly allowed. The judgment

and order of the State Commission dismissing the

complaint has been set aside holding that Dr. Neeraj Sud

and the PGI are jointly and severely liable for payment of

compensation of Rs.3,00,000/- and Rs.50,000/- as costs

with 6% interest from the date of the complaint for the

negligence in treatment.

4. Dr. Neeraj Sud and the PGI together have filed Civil

Appeal No.272 of 2012 aggrieved by the finding of NCDRC

which states that they had not taken due care in the

2 Hereinafter referred to as ‘PGI’

2 treatment and as such are liable for payment of the

compensation and cost as aforesaid.

5. The other appeal i.e. Civil Appeal No.5526 of 2012 has

been filed by the complainants. The complainants in the

appeal have not claimed any enhancement though upon

a reading of the contents, it is implicit that they are not

satisfied with the compensation awarded and that the

same is inadequate. The main prayer in appeal is only to

grant the special leave to petition against the judgment of

the NCDRC but with no other prayer. The relief claimed

in the appeal by the complainants has been drafted in a

very casual and improper manner with no sense of

responsibility. We deprecate the manner in which this

appeal has been filed, but in the ends of justice, proceed

to consider it on merits along with the tagged appeal.

6. The complainants are father and son. The son was a

minor aged about 6 years when he was diagnosed of

congenital disorder in his left eye (also known as ‘PTOSIS’

or ‘drooping eyelid’) for which a minor surgery was

performed on 26.06.1996 by Dr. Neeraj Sud at PGI. The

complainant alleges that there was no other defect in the

3 eyes of the son and both eyes had normal 6/9 equal

vision and the physical deformity diagnosed (PTOSIS,

drooping eyelid) could have been cured by a minor

operation which required lifting of the left eyelid a little to

make it of the same size as the right eye but the said

surgery was done in a most negligent manner. Instead of

any improvement the condition of the eye further

deteriorated post-surgery.

7. The complainants, thus through the complaint made to

the State Commission claimed compensation of

Rs.15,00,000/- for the sufferings due to negligence of the

doctor and a further sum of Rs.4,55,000/- towards the

cost of the treatment, loss of studies etc. In defence, Dr.

Neeraj Sud and the PGI admitted that the surgery was

performed on 26.06.1996 by Dr. Neeraj Sud who is a

qualified post-graduate in ophthalmology. He had three

years of experience in eye surgeries including surgery of

PTOSIS. During the period 1994-1996 when Dr. Neeraj

Sud was a Senior Resident at PGI, he was associated with

about 74 PTOSIS operations. The complainant was given

proper treatment with due care during operation and that

4 the correction and reoccurrence of PTOSIS is a common

complication of congenital ptosis which could have been

set right by repeat surgery. The patient was not examined

by Dr. Neeraj Sud after January, 1997 as he was taken

for treatment to Guru Nanak Eye Centre, Delhi and Dr.

Daljit Singh Hospital, Amritsar.

8. The complainants have not adduced any evidence to

establish any negligence in the performance of surgery or

treatment on part of Dr. Neeraj Sud or the PGI. They

mainly relied upon the medical records of the PGI which

were obtained and considered by the State Commission.

9. The State Commission, upon examination of the records,

concluded that the complainants failed to establish any

negligence or carelessness on part of the doctor in

treating one of the complainants and that the doctor had

not adopted any unacceptable medical practice which

may have caused damage to the patient. Dr. Neeraj Sud

was a duly qualified doctor possessing requisite

professional skill and competence to perform the surgery.

Therefore, neither Dr. Neeraj Sud nor the PGI can be held

responsible for any negligence in the treatment.

5

10. The aforesaid findings of the State Commission have been

partly reversed by the NCDRC only on the basis of the re-

examination of the record of the PGI which showed that

the patient before operation had proper 6/9 vision in

both the eyes and was suffering from a moderate PTOSIS

with no history of double vision. However, post-surgery,

the condition of PTOSIS deteriorated from moderate to

severe and the vision of the patient also fell down from

6/9 in both eyes to 6/18. The patient also suffered from

double vision post-surgery. Thus, the NCDRC held that

the doctor was apparently negligent in not giving proper

treatment and was also careless in not performing the

repeat surgery.

11. Deterioration of the condition of the patient post-surgery

is not necessarily indicative or suggestive of the fact that

the surgery performed or the treatment given to the

patient was not proper or inappropriate or that there was

some negligence in administering the same. In case of

surgery or such treatment it is not necessary that in

every case the condition of the patient would improve and

the surgery is successful to the satisfaction of the patient.

6 It is very much possible that in some rare cases

complications of such nature arise but that by itself does

not establish any actionable negligence on part of the

medical expert.

12. The NCDRC itself acknowledged that Dr. Neeraj Sud had

the necessary professional qualification and expertise to

treat the patient but it has granted compensation only for

the reason that he did not bring the requisite skill and

care in the treatment of the patient.

13. The said finding is based on no evidence insofar as the

complainants have not adduced any evidence to prove

any negligence on part of the doctor rather have relied

upon the medical records produced by the PGI. The said

records merely demonstrate that post-surgery the

condition of the patient had not improved but has

deteriorated which as stated earlier may not be indicative

of the negligence in the treatment of the patient.

14. It is well recognized that actionable negligence in context

of medical profession involves three constituents (i) duty

to exercise due care; (ii) breach of duty and (iii)

consequential damage. However, a simple lack of care, an

7 error of judgment or an accident is not sufficient proof of

negligence on part of the medical professional so long as

the doctor follows the acceptable practice of the medical

profession in discharge of his duties. He cannot be held

liable for negligence merely because a better alternative

treatment or course of treatment was available or that

more skilled doctors were there who could have

administered better treatment.

15. A medical professional may be held liable for negligence

only when he is not possessed with the requisite

qualification or skill or when he fails to exercise

reasonable skill which he possesses in giving the

treatment. None of the above two essential conditions for

establishing negligence stand satisfied in the case at

hand as no evidence was brought on record to prove that

Dr. Neeraj Sud had not exercised due diligence, care or

skill which he possessed in operating the patient and

giving treatment to him.

16. When reasonable care, expected of the medical

professional, is extended or rendered to the patient

unless contrary is proved, it would not be a case for

8 actionable negligence. In a celebrated and very often cited

decision in Bolam v. Friern Hospital Management

Committee (Queen’s Bench Division)3, it was observed

that a doctor is not negligent if he is acting in accordance

with the acceptable norms of practice unless there is

evidence of a medical body of skilled persons in the field

opining that the accepted principles/procedure were not

followed. The test so laid down popularly came to be

known as Bolam’s test and stands approved by the

Supreme Court in Jacob Mathews v. State of Punjab

and Another4. If we apply the same in the present case,

we would find that Dr. Neeraj Sood was a competent and

a skilled doctor possessing requisite qualification to

perform PTOSIS surgery and to administer the requisite

treatment and that he had followed the accepted mode of

practice in performing the surgery and that there was no

material to establish any overt act or omission to prove

negligence on his part. As stated earlier, no evidence was

adduced to prove that he had not exercised sufficient

3 English Law (1957) 1 WLR 582 4 2005(6) SCC 1

9 care or has failed to exercise due skill in performing the

surgery.

17. In Jacob Mathews (supra) this Court held that a

professional may be held liable for negligence if he is not

possessed of the requisite skill which he supposes to

have or has failed to exercise the same with reasonable

competence. The complainant has not adduced any

evidence to establish that Dr. Neeraj Sud or the PGI were

guilty of not exercising the expertise or the skill

possessed by them, so as to hold them liable for

negligence. No evidence was produced of any expert body

in the medical field to prove that requisite skill possessed

by Dr. Neeraj Sood was not exercised by him in discharge

of his duties.

18. In other words, simply for the reason that the patient has

not responded favourably to the surgery or the treatment

administered by a doctor or that the surgery has failed,

the doctor cannot be held liable for medical negligence

straightway by applying the doctrine of Res Ipsa Loquitor

unless it is established by evidence that the doctor failed

10 to exercise the due skill possessed by him in discharging

of his duties.

19. In view of the aforesaid facts and circumstances, we are

of the opinion that the NCDRC ought not to have

interfered with the findings and the impugned judgment

and order of the State Commission so as to hold the

doctor of the PGI negligent and to award compensation.

20. Accordingly, the judgment and order dated 24.08.2011 of

the NCDRC is hereby set aside and that of the State

Commission is restored. Since the complainants have

failed to prove any negligence on part of the doctor or the

PGI, they are not entitled to any compensation as such,

no question arises for its enhancement.

21. Accordingly, Civil Appeal No. 272 of 2012 is allowed and

Civil Appeal No. 5526 of 2012 is dismissed.

....................………………………….. J.

(PAMIDIGHANTAM SRI NARASIMHA)

..............……………………………….. J.

(PANKAJ MITHAL) NEW DELHI;

OCTOBER 25, 2024

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