Holding

No professional negligence can be attributed to Dr. C.P. Sreekumar; the compensation award under the Consumer Protection Act is set aside.

Summary

The case arose from a road accident in which the respondent suffered a hairline fracture of the femoral neck. Dr. C.P. Sreekumar, the treating orthopaedic surgeon, initially immobilised the fracture but later performed a hemiarthroplasty after the fracture displaced. The respondent alleged medical negligence, claiming the fracture worsened due to rough handling by hospital staff and that hemiarthroplasty was inappropriate for a 42‑year‑old patient. The National Consumer Disputes Redressal Commission awarded compensation, which was appealed before the Supreme Court. The Court examined the doctor’s qualifications, the cause of fracture displacement, and the appropriateness of hemiarthroplasty, applying the standard of care test from Jacob Mathew. It found no evidence of negligence by the doctor or staff, held that the choice of procedure was within accepted medical practice, and set aside the compensation award. The appeal by the doctor was allowed and the respondent’s complaint dismissed.

Issues considered

The doctor’s competence to perform hemiarthroplasty and whether he was qualified to perform internal fixation
Whether the displacement of the fracture was caused by rough handling of hospital staff, constituting negligence
Whether hemiarthroplasty was an appropriate treatment for a 42‑year‑old patient with a Garden type III fracture

Legislation cited

Consumer Protection Act, 1986

Subjects

medical negligenceConsumer Protection Actorthopaedic surgeryhemiarthroplastyinternal fixationstandard of careburden of proofprofessional negligencecompensation

Judgment

A
(2009] 7 S.C.R. 272

DR. C.P. SREEKUMAR, M.S. (ORTHO) ......
-
..,.__

•·
,,__

V.
S. RAMANUJAM
Civil Appeal No. 6168 of 2008
MAY 1, 2009
B
(DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ)
Compensation - Award of by National Consumer
Disputes Redressal Commission - On appeal, HELD: ' ....
Treating doctor was not at fault- He has also consulted experts \
c in the field - Whether the doctor was remiss in choosing a
psrticular procedure - Preference of procedure - Relevant
factors - Discussed - No professional negligence could be
attributed to the Doctor - Medical negligence - Consumer
Protection Act, 1986. ·
D
The two appeals have challenged the order of the -.;.·
National Consumer Disputes Redressal Commission
awarding certain compensation against a Doctor to the
respondent-patient.
E Dismissing the appeal, the Court
HELD: 1. The appellant deposed that he was an
M.8.8.S. from the Tanjore Medical College and had
thereafter done his Masters in General Surgical Science ~

from the University of Madras in the year 1983 and his
F Masters in Orthopaedic Sciences from the University of
London in the year 1985 and that on the day of the
operation he had about 15 years of experience in the field
of Orthopaedics. This Court has also gone through the
very lengthy cross-examination of the appellant spread
G (intermittently) over several days and find not the slightest
suggestion that the appellant was unable to perform an '>.-
'
internal fixation. The bald statement of the respondent (in
the course of his arguments and in his written sub-

H 272
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 273
S. RAMANUJAM
/..- missions) with respect to the lack of expertise iri A
performing the internal fixation procedure on which the
appellant had chosen to go in for hemiarthroplasty, cannot
thus, be accepted. [para 15] [287-D-G]
Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1
and State of Punjab vs. Shiv Ram & Ors. (2005) 7 SCC 1 - B
relied on.
_J Samira Kohli vs. Or. Prabha Manchanda & Anr. (2008) 2
sec 1 - referred to.
Bo/am vs. Friern Hospital Management Committee c
(1957) 2 All ER 118 (QBD) - referred to.
2. It is the case of the respondent that when he was
taken for an X-ray on 8th January 1992 it was found that
... the simple Garden I type fracture had developed into a
D
...._ complicated Garden Ill type fracture, and that this
happened on account of rough handling by Elango and
the other attendants who were mere labourers whereas it
is the case of the appellant that this had occurred due to
a muscular spasm. It is found from a reading of the order
of the Commission that it proceeded on the basis that E
whatever had been alleged in the complaint by the
respondent was in fact the inviolable truth even though it
"" remained unsupported by any evidence. The onus to
prove medical negligence lies largely on the claimant and
that this onus can be discharged by leading cogent F
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
complainant to provide the facta probanda as well as the G
facta probantia. {para 16] [287-H; 288-A-D]
'
3. The Commission has relied on the cross-
examination of the appellant with regard to the speculation
about the defective lift as being the reason for the shift of
H
274 SUPREME COURT REPORTS [2009] 7 S.C.R.

A the respondent on a stretcher to the X-ray room. This is .....
on the face of it misplaced, as no inference can flow that
the displacement had occurred on account of rough
handling by the staff. The appellant, on the contrary, in
the course of his evidence, pointed out that as the
B respondent's smoking over a period of 15 years had
resulted in chronic bronchitis, that he was obese and had
taken hormonal treatment for sterility and in this context
re-emphasized that the displacement had occurred due "...
to a strong muscular spasm. When cross-examined, he
pointed out that in order to immobilize the leg he had used
c de-rotation boots which extend below the navel and to
the injured leg to half of the uninjured leg and that such a
cast would normally immobilize the hip by 75% but
notwithstanding this fact a muscular spasm could still
happen. It will be seen from the cross-examination that
D
there was no suggestion whatsoever that a simple hairline ·•
fracture of the femur could not be transformed to a Garden
type Ill fracture due to a muscular spasm. It is found from
the appellant's reply to the complaint and also in the
course of his evidence that the fracture had been
E displaced on account of muscular spasm and that this
point has gone unrebutted as no contrary evidence has
been produced. It cannot therefore be said with any
~
certitude that the displacement had occurred on account
of the rough handling by Elango and the others on the
F 8th January 1992. In its order, while referring to the radical
change in the fracture, the Commission has observed that
there was no way to ascertain the reason for this
development but one cannot disregard the averment made
by the complainant that it is due to rough handling of the
G staff of the hospital. In the face of the commission's
observation, no case of negligence can be spelt out. [para ~
'
17] [288-E-H; 289-A-D]
4.1 It is the case of the appellant that on evaluation
of the respondent's condition he had thought it fit to carry
H
DR. C.P. SREEKUMAR, M.S. (ORTHO) V . 275
S. RAMANUJAM
.
>- out a hemiarthroplasty whereas it is the case of the A
respondent that is per the various text books which have
been placed on record, this procedure was invariably
carried out on a patient who was 60 years of age or above
and hemiarthroplasty was thus not the favoured option
for him. It does appear that ordinarily'in the case of a patient B
ofless than 60 years of age, hemiarthroplasty is not the
~
preferred option and internal fixation involving the use of
~/ a clamp with screws was the more acceptable one. [para
18) [289-E-G]
4.2 No firm conclusion as to the preference of one or c
the other procedure can be drawn b~t for a Garden type
Ill fracture on a young person, internal fixation is ordinarily
the favoured but not the only option as some of the texts
afore-referred also proceed on a school of thought which
-4
prescribe that in order to avoid long drawn out recovery D
·'-· and other complications, it is advisable to go in for a
hemiarthroplasty notwithstanding the age factor. It has
also been observed that condition of the patient and of the
bone would be relevant determining factors.in the choice
which the doctor wishes to make. [para 19) [297-D-F] E
4.3 In cross-examination, the respondent further
stated that due to deterioration of the fracture site, he had
..,.. decided to go in for surgery instead of internal fixation. It
is also relevant that though the respondent had sought
the opinion of the doctor of the Hospitals on 30th_ May F
·- 1992, .he produced no evidence to off-set the appellant's
evidence as to why .he had chosen hemiarthroplasty over
internal fixation. It is equally significant that the respondent
had taken the advice of several renowned doctors
including Dr. Mohan Das and Dr. Nand Kumar, but none G
of them in their treatment notes observed adversely about
-\
the choice of treatment nor any negligence in the actual
operation. In the light of the fact that there is some
divergence of opinion as to the proper procedure to be
adopted, it cannot be said with certainty that the appellant, H
276 SUPREME COURT REPORTS [2009] 7 S.C.R.
...
A was grossly remiss in going in for hemiarthroplasty. [para
20] [298-B-E]
4.4 The appellant's decision in choosing hemiar-
throplasty with respect to a patient of 42 years of age was
not so palpably erroiwous or unacceptable as to dub it
8
as a case of professional negligence. [para 21] [299-C-D]
,
Subcapital Fractures of the femur, A Prospective Review
by R.Barnes, J.T.Brown, Glasoow, Scotland, RS.Garden,
Priston, and E.A.Nicon, Mansfield, England with a statistical
C analysis by D.F.Goda, Edinburgh, Scotland" The displaced
femoral neck fracture internal fixation versus Bipolar
Endoprosthesis : Results of a Prospective Randomised
Comparison (Bray-TJ; Smith Hoefer.E, Hooper.A, Timmerman.
L. University of California, Davis Medical Center, Sacramento
D Clin Orthop.1988 May (230) 127-40; Emergency Orthopaedics
and Trauma by Andrew Unwin and Kirsten Jones lntracapsular
Fractures of the Neck of the Femur By C.E.Ackroyd.
G.C.Bannister and V.G.Langkamer; and Watson-Jones
Fractures and Joint Injuries, Edited by J .N.Wilson, Sixth Edition,
E Vol.I - referred to.

Case Law Reference
(2005) s sec 1 relied on para 10
F (1957) 2 All ER 118 (QBD) referred to para 10
(2005) 1 sec 1 relied on para 12
(2008) 2 sec 1 referred to para 13
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 6,168
G of 2008

From the Judgement and Order dated 15.11.2006 of the
Hon'ble National Consumer Disputes Redressal Commission,
New Delhi in First Appeal No. 158 of 1999.
H
DR. C.P. SREEKUMAR, M.S. (ORTHO) V: 277
S. RAMANUJAM
t
A.- WITH A

C.A. No. 6167 of 2008
Ranjit Kumar, Roh in Musa, Binu Tamta, S. Ramanujam (i-
person), with him for appearing parites.
The Judgement of the Court was delivered by B

HARJIT SINGH BEDI, J.
.""i/
1. Th~s judgment will dispose of C.A. No.6168 of 2008,
and C.A.No.6167/2008 as they arise out of the same order.
The facts are being taken from C.A. No.6168 of 2008. c
2. These appeals are directed against the order of the
National ·Consumer Disputes Redressal Commission
(hereinafter called the "Commission") whereby a sum of Rs.5.50
~
Lac alongwith interest on a part of the aforesaid amount and
D
~ costs of Rs.25000/- has been awarded to the complainant -
respondent. The facts leading to this appeal are as under:
3. The respondent, who was then employed in the Indian
Overseas Bank, Chennai was going on his bicycle at about 8:20
a.m. on 31st December 1991 when he was hit by a motorcycle E
leading to an injury to his leg. He was admitted to the Surya
Hospital, of which the appellant, Dr. C.P. Sreekumar was the
.,.. Managing Director, at about 9.45 a.m. An X-ray of the leg
revealed a hairline fracture of the neck of the right femur. The
appellant, as the attending doctor, chose a conservative line of F
treatment and put the respondent's leg in a plaster of paris
bandage known as 'derotation boots' in order to immobilize the
leg. On the insistence of the respondent that he be released to
recuperate at home, he was taken for another X-ray ori 8th
January 1992 as a prelude to his discharge wherein it was found G
that the simple hairline fracture Garden type I had developed to
i a more serious Garden type Ill fracture. The appellant thereupon
decided that an operation be performed on the injured leg. Pre-
operative evaluations were made on 9tti January 1992 and the
appellant, on considering the various options available, decided
H
278 SUPREME COURT REPORTS [2009) 7 S.C.R.

-"
A to perform a hemiarthroplasty instead of going in for the internal
fixation procedure. The respondent consented to the choice of
the surgery after the various options had been explained to him.
The surgery was performed on the next day. The respondent
remained admitted as an indoor patient, during which post
B operative treatment and monitoring was done by the appellant
between 11th January to 21st January 1992 and it was observed
that a superficial infection had set in. The sutures were actually ,.
st ~
removed on 21 January 1992. The respondent was thereafter
made to undergo physiotherapy and was finally discharged on
th th
c 5 February 1992. On 6 March 1992, the respondent appeared
in the hospital and his condition was reviewed and he was
instructed to go in for physiotherapy on a daily basis and to
return for a subsequent review two weeks later but he neglected
the advice. It is the case of the respondent that on account of
lingering pain, he had consulted various doctors, including Dr. •
D
Mohandas of Tamil Nadu hospital on 27th May 1992 who gave
,..,.
his opinion on the matter. The appellant has however pleaded
that the respondent, in the meanwhile, continued to make a
nuisance of himself with frequent visits to and unbecoming
behaviour in the hospital on which the appellant gave a sum of
E Rs.50,000/- as an ex-gratia payment in order to pacify him. It
appears however, that notwithstanding the aforesaid payment
the respondent sent an Advocate's notice on 19th November ~
1992 alleging negligence and deficiency in service as the simple
fracture had got displaced to a more complicated one, on
F account of mishandling by the hospital staff as also in the choice
and the manner of the surgery and calling for compensation of
Rs.3 Lac ofwhic~ Rs.50,000/- had (statedly) alreaw been paid
as an advance. The appellant in his reply dated 15 December
1992, denied any negligence in the surgery and further pointed
G out that the displacement of the fracture had come about on
account of natural causes i.e. a muscular spasm and that
respondent after being informed about the various lines of
treatment available had consented to the hemiarthroplasty.
Dissatisfied with the reply given by the appellant, the respondent
H in May, 1993 filed a complaint before the State Commission
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 279
S. RAMANUJAM [HARJIT SINGH BEDI, J.]
;_
alleging that his consent had not been taken for the A
· hemiarthroplasty and that this procedure was not justified as
the bone was in good condition. The appellant in his reply denied
the allegations and prayed for the dismissal of the complaint. It
appears that while the complaint was yet pending, the
1
respondent underwent a total hip replacernent on 24 h April 1995 B
at the Tamil Nadu hospital performed by Dr. Mohandas, on which
he moved an application before the State Commission seeking
y to amend the complaint whereby the claim was increased from
Rs.3 to Rs.12 Lac. After the necessary changes in the pleadings
on account of the amendment aforesaid, the matter was brought c
to trial before the State Commission. The appellant appeared
as a witness and was examined and cross-examined over
several days. Several documents were also filed by the
respective parties. By its order dated 29th January 1999, the
..... State Commission dismissed the complaint holding that there
D
h had been no negligence or deficiency in service on the part of
the appellant and that the respondent had not been able to prove
mishandling by the hospital staff. The State Commission, inter
alia, noted that the complainant had not appeared as a witness
and further that no witness had been examined by him in support
of his case. E

4. Aggrieved by the order of the State Commission, the

• respondent filed an appeal before the Commission on 12th April
1999 and at that stage sought to produce one Dr. David, the
duty doctor at the relevant time, as a witness, but thereafter took F
no steps to secure his presence. Vide its order of 15th November
2006, the Commission, however, allowed the appeal but limited
the respondent's claim to Rs.2.5 Lac, ( being the balance
amount after deducting Rs.50,000/- allegedly paid as an
advance) but, in addition granted a further sum of Rs.3 Lac to
G
cover the contingency that he might have to undergo yet another
surgery at some later stage. Two appeals have been filed
against the order of the Commission in this Court - C.A.
No.6168 of 2008 by Dr. C.P. Sreekumar seeking a dismissal of
the complaint and the second, C.A.No.6167 of 2008 by the
H
280 SUPREME COURT REPORTS [2009] 7 S.C.R.

A respondent, S.Ramanujam, seeking an enhancement of the
compensation to Rs.12 Lac. Both matters are being disposed
off by this judgment.

5. The Commission in its order noted that the respondent
had suffered only a hairline fracture (described as Garden type
8 I fracture) for which he had been admitted in the hospital and
had been immobilized by being put in a plaster with a suggestion.
of six weeks bed rest so that the fracture could heal on its own,
and as such there was no occasion for the respondent to be
th
taken for another X-ray on the 8 January 1992 as there was
C absolutely no complaint from him and it was at that stage that it
was discovered that the simple hairline fracture had developed
into a displaced Garden type Ill fracture. The Commission
concluded that this complication had happened when the
respondent had been moved from the first to the ground floor of
D the hospital for the purpose of X-ray by a ward boy, Elango,
assisted by some laborers, who were not qualified to handle a
patient. The Commission also observed that there was no
warrant for the stand of the appellant that the hairline fracture
had been displaced due to a muscular spasm and for that reason
E the averments made in the complaint could not be disregarded.
The Commission emphasized that within 2 days of the X-ray on
th
10 January 1992 the respondent had undergone a
hemiarthroplasty, a surgical procedure whereby half of the hip
joint had been replaced leaving the other half in its natural state
F and relied heavily on several medical texts placed by the parties
to hold that this procedure was performed only on patients of
the age of 60 years and above and as the respondent was, at
the relevant time, 42 years of age, the open reduction procedure,
whereby the bones are brought together and clamped by metal
G screws etc., was the appropriate one. The Commission also
accepted the submission of the respondent to the effect that in
the case of a patient under 60 years of age who had presumably
a long span of active life, every effort was required to be made
to preserve the femoral head as in a case of hemiarthroplasty
H or of total hip replacement the joint would inevitably fail with the
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 281
S. RAMANUJAM [HARJIT SINGH BEDI, J.]
)._
passage of time. The Commission further observed that the A
th
respondent had approached Dr. Mohandas on 16 March 1992
with a complaint of pain in the right leg and inability to walk and
Dr. Mohandas had recorded that the respondent had some kind
of infection and had advised for the removal of the prosthetic
and further advised for a total hip replacement. The Commission B
accordingly opined that the fact that only a few days after the
hemiarthroplasty, the respondent had developed an infection
r.1 clearly showed negligence at the hands of the attending doctors
with the result that he had perforce to undergo a total hip
1
replacement at the Tamil Nadu Hospital, Chennai on 28 h January c
1995. In conclusion, the Commission observed as under:

"It is thus clear that: (i) a hairline fracture developed into
displaced fracture due to wrong handling in the opposite
party'~ hospital; (ii) the opposite party performed a Hemi-
.-4
arthroplasty on a young patient of 42 years without D
...._
consideration open reduction and internal fixation and
ag?inst established medical practices; (iii) the post-
operative infection was no_t properly conducted with the
result that prosthesis got loosened within a period of two
months. There is thus a clear case of negligence and E
deficiency in service rendered by the opposite party."
6. The Commission then came to the question of the
,.. payment of Rs.50,000/- by the appellant to the respondent and
observed that there were strong reasons to believe the
respondent's plea that it was a part payment towards a F
compromise for the larger sum of Rs.3 Lac that had been
promised. The Commission further observed that from the
certificate issued by Dr. N.K. Sundaram of Tamil Nadu Hospital
it was clear that a total hip replacement would fail over a period
of time and would need to be revised again with a new artificial G
joint, which would cost Rs.3 Lac and that this amount too was
payable to the respondent. A total sum of Rs.5.50 Lac was, thus,
computed and awarded.
7. Mr. Ranjit Kumar, the learned senior counsel for the
H
282 SUPREME COURT REPORTS [2009] 7 S.C.R.

A appellant, has first and foremost pointed out that the Commission ......
had proceeded on the basis that all that had been pleaded by
the respondent in his complaint was the gospel truth despite
the fact that all the allegations had been controverted and in the
background that no ocular evidence had been led by the
B respondent and neither he himself, nor his wife, who appeared
to be well informed about the procedures that had been adopted,
had appeared to give evidence, there was no warrant for
believing the entire story on his mere ipse dixit. It has also been "'-.
pleaded that there was neither any mishandling of the
c respondent by Elango and the others nor any misjudgment in
the choice of the surgery as at the very initial stage the Doctor
had chosen a conservative line of treatment as the fracture was
a simple Garden type I, but which had been later transformed
into a Garden type Ill fracture on account of a muscular spasm
0
which required a hemiarthoplasty and that this line of treatment .
had been chosen as it would make for quicker recovery so that
patient's ambulation could be restored. It has also been argued
that the mere fact that a complete hip replacement had been
1
made on 28 h April 1995 i.e. three long years after the
hemiarthroplasty showed that this procedure was in fact the
E correct one. It has also been submitted that there was no warrant
for the very broad proposition that the only procedure in the given
circumstances to be performed on a 42 year old patient was
internal fixation and that hemiarthroplasty had to be completely
ruled out unless the patient was beyond 60 years of age. He
F has reiterated that as per the evidence of the appellant doctor,
the nature of the fracture had changed from Garden type I to
Garden type Ill on account of a muscular spasm and the condition
of the bone had also deteriorated and as this statement had not
been challenged or controverted by the respondent by adducing
G evidence, there was no justification in disbelieving the statement
as he was the best judge in selecting the appropriate procedure
in the given circumstances. It has finally been submitted that
there is no basis for the conclusion that the payment of
Rs.50,000/- to the respondent was a part payment towards a
H compromise involving a total settlement of Rs.3 Lac, as this
DR C.P. SREEKUMAR, M.S. (ORTHO) V. 283
S. RAMANUJAM [HARJIT SINGH BEDI, J.]
J.._ amount had been paid to mollify the respondent who was A
creating a nuisance in the hospital premises and the appellant's
residence and causing inconvenience to the other patients. It
has, thus, been prayed that in the light of this background, there
was no justification for the award and that no compensation
whatsoever was called for. B
8. Mr. Ranjit Kumar's stand has been strongly controverted
.,.,, by the respondent, who appeared in person. As a matter offact.
owing to the limitations of untrained litigants who appear in
person, we had asked the respondent if he wished to engage a
lawyer or we could even arrange one to represent him as an c
amicus curiae. He brusquely declined the offer and on the
contrary vehemently suggested that he had no faith in members
of the legal profession as he had been cheated by his lawyer
A
before the State Commission as he had connived with the
opposite party and had deliberately dissuaded him from D
..;...
producing any substantive evidence which had led to the
dismissal of his complaint at the first instance. During the course
1
of his arguments and in his affidavit dated 19 h June 2007 as
also in his written submissions given to this Court, the
respondent repeatedly requested that the matter be remanded E
to the State Commission for recording his evidence, that of his
wife and some expert witnesses and also to produce some
additional objects as evidence. We, however, questioned the
respondent as to whether he had made any such prayer or
complaint in writing before the State Commission or the F
Commission and he admitted that he had not done so. In this
background, and the fact that the incident had happened some
18 years ago, we feel that it would be inappropriate to remand
the matter to the State Commission for additional evidence at
this stage.
G
9. We find that three basic issues arise in the present case,
(1) whether Dr. C.P. Sreekumar, the appellant herein, had the
competence to perform a hemiarthroplasty and whether he had
chosen this procedure as he was not qualified for the internal
fixation procedure; (2) whether it was the negligence of the Surya H
284 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Hospital of which Dr. C. P. Sreekumar appellant was the Director --'
and of the ward boy Elango and three labourers, who are said
to have removed the respondent from his room for X-ray
1
department on 8 h January 1992 that had resulted in the
aggravation of the Garden type I fracture to Garden Ill type
B fracture necessitating more radical treatment and (3) even
assuming that some radical procedure was necessary, whether
hemiarthroplasty was the appropriate one in the light of the fact
that the respondent was at the relevant time 42 years of age.
10. The basic principles under which a case of medical
c negligence as a criminal offence as also a tort has to be
evaluated has been succinctly laid down in Jacob Mathew vs.
State of Punjab & Anr. (2005) 6 SCC 1. One of the primary
arguments raised by the respondent herein is that the appellant
Dr. C. P. Sreekumar, though qualified in Orthopedics, did not
•
D have the basic skill to carry out a hemiarthroplasty or an internal
fixation and for that reason was not competent to perform the ~

procedure. In Jacob Mathew's case, this Court adopted the test
laid, down in Bo/am vs. Friern Hospital Managemen:
Committee (1957) 2 All ER 118 (QBD) in which it has been
observed as under :
E
"[W]here you get a situation which involves the use of some
special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man ;v
on the top of a Clapham omnibus, because he has not got
F this special skill. The test is the standard of the ordinary
skilled man exercising and profession to have that special
skill. A man need not possess the highest expert skill. .. It
is well-established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising
that particular art."
G
11. This Court then observed that this judgment had been
followed repeatedly not only in India but in other jurisdictions as
well and that it was the statement of law as commonly understood
today. In paragraphs 24 and 32 of Jacob Mathew's case it has
H been observed thus:
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 285
··' S. RAMANUJAM [HARJIT SINGH BEDI, J.]
A. "The classical statement of law in Bolam's case has been A
widely accepted as decisive of the standard of care
required both of professional men generally and medical
practitioners in particular. It has been invariably cited with
approval before the courts in India and applied as a
touchstone to test the pleas of medical negligence. In tort, B
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 a defendant
--{
charged with negligence acted in accord with the general c
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
D
........ the cparge of negligence arises out of failure to use some·
particular equipment, the charge would fail if the equipment
was not generally available at that po inf of time on which
it is suggested as should have been used.
32. At least three weighty considerations can be pointed E
out which any forum trying the issue of medical negligence
in any jurisdiction must keep in mind. These are: (i) that
y.. legal and disciplinary procedures should be properly
founded on firm, moral and scientific grounds; (ii) that
patients will be better served if the real causes of harm F
are properly identified and appropriately acted upon; and
(iii) that many incidents involve a contribution from more
than one person, and the tendency is to blame the last
identifiable element in the chain of causation, the person
holding the "smoking gun".
G
12. These observations postulate the underlying principle
that too much suspicion about the negligence of attending
Doctors and frequent interference by Courts would be a very
dangerous proposition as it would prevent Doctors from taking
decisions which could result in complications and in this situation H
286 SUPREME COURT REPORTS [2009] 7 S.C.R.

A the patient would be the ultimate sufferer. Jacob Mathew's case ~.
was followed in State of Punjab v. Shiv Ram & Ors. (2005) 7
sec 1 l(Vhich was a case of a failed tubectomy leading to a
plea of medical negligence. This is what this Court had to say in
paragraph 33:
B "A Doctor, in essence, needs to be inventive and has to
take snap decisions especially in the course of performing
I
surgery when some unexpected problems crop up or
complication sets in. If the medical profession, as a whole,
is hemmed in by threat of action, criminal and civil, the
c consequence will be loss to the patients. No doctor would
take a risk, a justifiable risk in the circumstances of a
given case, and try to save his patient from a complicated
disease or in the face of an unexpected problem that
confronts him during the treatment or the surgery. It is in
D this background that this Court has cautioned that the _....
setting in motion of the criminal law against the medical
profession should be done cautiously and on the basis
of reasonably sure grounds. In criminal prosecutions or
claims in tort, the burden always rests with the prosecution
E or the claimant. No doubt, in a given case, a doctor may
be obliged to explain his conduct depending on the
evidence adduced by the prosecution or by the claimant.
That position does not change merely because of the
. caution advocated in Jacob Mathew in fixing liability for
F negligence, on doctors."
13. In Samira Kohli vs. Dr.Prabha Manchanda & Anr
(2008) 2 sec 1 the basic issue was as to the principle governing
"consent" to be taken from a patient prior to any invasive
procedure. We find, however, that in the present case, the
G question of consent has not been raised by the respondent and
on the contrary the case seems to be that the consent had, in
fact, been taken. Even in his arguments the respondent did not
deny lack of consent and on the contrary (as Mr. Ranjit
Kumar has pointed out) in the Advocate's notice issued to
th
H Dr. C.P. Sreekumar appellant, on 19 November 1992, the fact
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 287

,_ S RAMANUJAM [HARJIT SINGH BEDI, J.]

that the respondent had agreed to the operation, has been A
admitted.
14. Before we embark on an evaluation of the three issues
it bears reiteration that the respondent did not produce any
evidence in court and did not even appear as a witness in
support of his own case. Realizing the consequences of this B
omission, the respondent had requested that the matter be
,...,, remitted to the State Commission for recording additional
evidence, which request has been declined by us.

15. The first issue is with regard to the doctor's expertise
in his field of orthopaedics, as it is the respondent's plea that
c
he had chosen hemiarthroplasty as he was not qualified to go
in for the internal fixation procedure and that he lacked the
elementary knowledge of hemiarthroplasty as well. We have
.# considered this argument and find that there is absolutely no
~
evidence to back up this wide claim. On the contrary, we have D
gone through the evidence of the appellant who deposed that
he was an M.B.B.S. from the Tanjore Medical College and had
thereafter done his Masters in General Surgical Science from
the University of Madras in the year 1983 and his Masters in
Orthopaedic Sciences from the University of London in the year E
1985 and that on the day of the operation he had about 15 years
of experience in the field of Orthopaedics. We have also gone
-9> through the very lengthy cross-examination of the appellant
spread (intermittently) over several days and find not the slightest
suggestion that the appellant was unable to perform an internal F
fixation. The bald statement of the respondent (in the course of
his arguments and in his written submissions) with respect to
the lack of expertise in performing the internal fixation procedure
on which the appellant had chosen to go in for hemiarthroplasty,
cannot thus, be accepted.
G
16. Admittedly the respondent had suffered a simple

" Garden Type I hairline fracture in the course of the accident on
1
31• December 1991 and after he had been examined by the
appellant on that day, his leg had been immobilized with the
help of derotation boots. It is the case of the respondent that H
288 SUPREME COURT REPORTS [2009] 7 S.C.R.

A when he was taken for an X-ray on 8th January 1992 it was found
that the simple Garden I type fracture had developed into a
complicated Garden Ill type fracture, and that this happened on
account of rough handling by Elango and the other attendants
who were mere labourers whereas it is the case of the appellant
B that this had occurred due to a muscular spasm. 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
c in Jacob Mathew's case 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
0
complainant can be said to be proved. It is the obligation of the ..
complainant to provide the facta probanda as well as the facta
probantia.
17. The Commission has, further, relied on the cross-
examination of the appellant with regard to the speculation about
E the defective lift as being the reason for the shift of the respondent
on a stretcher to the X-ray room. This is on the face of it
misplaced, as no inference can flow that the displacement had
occurred on account of rough handling by the staff. The appellant,
on the contrary, in the course of his evidence, pointed out that
F as the respondent's smoking over a period of 15 years had
resulted in chronic bronchitis, that he was obese and had taken
hormonal treatment for sterility and in this context re-emphasized
that the displacement had occurred due to a strong muscular
spasm. When cross-examined on 7th April 1998 he pointed out
G that in order to immobilize the leg he had used de-rotation boots
which extend below the navel and to the injured leg to half of the
uninjured leg and that such a cast would normally immobilize
the hip by 75% but notwithstanding this fact a muscular spasm
could still happen. It will be seen from the cross-examination
that there was no suggestion whatsoever that a simple hairline
H
' .

DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 289
S. RAMANUJAM [HARJIT SINGH B.EDI, J.]
"'-,
J_ fracture of the femur could not be transformed to a Garden type A
Ill fracture due to a muscular spasm. We thus find from the
appellant's reply to the complaint and also in the course of his
evidence that the fracture had been displaced on account of
muscular spasm and that this point has gone unrebutted as no
contrary evidence has been produced. It cannot therefore be B
said with any certitude that the displacement had occurred on
·~ account of the rough handling by Elango a·nd the others on the
1
:,_/ 8 h January 1992. In its order, while referring to the radical change
in the fracture, the Commission has observed:

"There is no way to ascertain the reason for this c
development but one cannot disregard the averment
made by the complainant that it is due to rough handling
of the staff of the hospital."

• We are of the opinion that in the face of this observation,
D
j._ no case of negligence can be spelt out.
18. The question as to whether hemiarthroplasty or internal
fixation was the proper procedure in the background that the
respondent was 42 years of age at the relevant time, has been
hotly debated. It is the case of the appellant that on evaluation E
of the respondent's condition he had thought it fit to carry out a
hemiarthroplasty whereas it is the case of the respondent that
·-;. as per the various text books which have been placed on record,
this procedure was invariably carried out on a patient who was
60 years of age or above and hemiarthroplasty was thus not the F
favoured option for him. Mr. Ranjit Kumar has taken us through
several passages from various text books, most of which have
in fact been produced by the respondent, and it does appear
that ordinarily in the case of a patient of less than 60 years of
age, hemiarthroplasty is not the preferred option and internal
G
_, fixation involving the use of a clamp with screws was the more
.~' acceptable one. In Subcapital Fractures of the femur, A·
Prospective Review by R.Barnes, J. TBrown, Glasoow,
Scotland, R.S.Garden, Priston,and EA.Nicol/, Mansfield,
England. With a statistical analysis by D. F Goda, Edinburgh,
H
290 SUPREME COURT REPORTS [2009) 7 S.C.R.

A Scotland, it has been pointed out that the choice between the
internal fixation and immediate prosthetic replacement is often
difficult to make and no full proof criteria exists for assessing
which of the two procedures is the proper one in the facts of the
particular case. Likewise, in the Article "The displaced femoral
8 neck fracture internal fixation versus Bipolar Endoprosthesis
: Results of a Prospective Randomised Comparsion (Bray -
TJ; Smith Hoefer.E, Hooper.A, Timmerman.L. University of
California, Davis Medical Center, Sacramento Clin
Orthop.1988 May (230) 127-40 wherein the dilemma as to the
procedure to be adopted has again been highlighted, it does
C appear that in the case of a young patient, internal fixation is the
favoured procedure. In Practicai Fracture Treatment (Third
Edition) by Ronald Mcrae it has been observed as under:
"Alternative treatments of intracapsular fractures(1):
Non-operative management : All impacted fractures •
D
(Garden I and some Garden 2) may be treated
conservatively, and this is an important consideration,
especially wherein an ageing population these fractures
are on the increase, and where surgical time is in heavy
demand. Overall a lower mortality rate has been claimed
E in those treated conservatively as opposed to surgically.
Method:(1 )The leg is rested in a gutter splint until pain
settles (usually after about a week).(2)Partial weight
bearing with crutches is then commenced, and continued
for 8 weeks, after which full unsupported weight bearing
F may be allowed.(3)Check radiographs are taken 2 days
after the start of mobilisation, and thereafter every 2 weeks
until the eight week.(4) If the fracture disimpacts and
becomes unstable (a 14% incidence only is claimed)
then active treatment becomes necessary, when a hemi-
G or total arthroplasty may be performed. Disimpaction is
seen most often in those over 70 especially those in
poor general health. or in the younger patient with a low
life expectancy. The problems of prolonged recumbency
in the elderly may nevertheless follow this line of
H treatment."
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 291
S RAMANUJAM [HARJIT SINGH BEDI, J.]

/<.... This basic principle has been repeated again in A
Emergency Orthopaedics and Trauma by Andrew Unwin and
Kirsten Jones in which it has been observed as under:
"Subcapital fractures of the neck of the femur :
These common fractures have been classified according 8
to the Garden classification.
Garden I
,,.
Impacted fractures with an incomplete facture line.
Trabeculae through fracture angulated as the head is c
abducted.
Garden 2
Impacted fracture with a complete fracture line.
• D
..;.
The trabeculae appear interrupted but not angulated .
Garden 3
Femoral head is displaced.
The trabeculaeare interrupted and angulated. E
Garden 4

•.,i..
Femoral head is more displaced (fallen off).
Trabeculae may appear parallel as the head may not be
abducted.
F

This classification system corresponds with increasing
insult to the blood supply of the femoral head. Gra.des

. 1and 2 are relatively undisplaced fractures with a lower
risk of avascular necrosis than the more displaced Grades G
3and 4. The system also allows a treatment strategy( see
;<( below).
Subcapital fractures are prone, in addition to other
complications associated with all femoral neck fractures,
to two particular problems: H
292 SUPREME COURT REPORTS [2009] 7 S.C.R.

A (a) avascular necrosis of the femoral head - this is
unpredictable, but generally the prognosis is worse with
greater displacement and with proximal fractures; and
(b) non-union of the fracture.
B The treatment of these fractures is controversial. Many
centres now adopt the following protocol:
1. All young patients undergo internal fixation as a
surgical emergency in an attempt to reduce the fracture,
decompress the intracapsular haematoma and fix the
c fragments. Subsequent avascular necrosis or non-union
is treated on its merits, often with a total hip
replacement. (Primary total hip replacement as an
emergency treatment is regarded by many to have an
unacceptable complication rate.although this policy is
D adopted by some). •

2. In older patients:-
Garden 1 and 2 fractures are internally fixed.
Garden 3 and 4 fractures are assumed to have a high
E risk of complication with internal fixation, and so as to
avoid multiple operations, undergo a hemi-arthroplasty,
replacing the .head of the femur whilst leaving the
acetabulum intact (Fig.20.9). A risk of hemiarthroplasty is
that the metallic femoral head may 'bore' its way into the
F acetabulum, causing pain and erosion. For this reason,
with their softer bone, hemiarthroplasty should be avoided
in patients with rheumatoid arthritis.

G
3. In the very old or frail patient, all femoral neck fractures
are recommended to undergo hemiarthroplasty."
In lntracapsu/ar Fractures of the Neck of the Femur By ~-
-
C.E.Ackroyd. G. C. Bannister and VG.Langkamer, it has
been observed as under:
Indications for internal fixation
H
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. . 293
S. RAMANUJAM [HARJIT SINGH BEDI, J.]
)-
If undisplaced fractures are managed without fixation, 12 A
per cent displace and are therefore less likely to unite.
The trabecular bone is already impacted and fixation with
two screws is sufficient to maintain stability.

British and Danish controlled trials suggest that in patients
. over 70 years of age with displaced fractures, primary B
prosthetic replacement results in lower morbidity, fewer
)'-. reoperations and comparable mortality over 6 months
when compared with internal fixation. However,femoral
head replacement results in progressive acetabular
erosion and after 5 years 20 per cent of survivors have c
undergone total hip replacement.

Internal fixation may reasonably be offered to mentally
a:ert, independent and fully mobile patients, whose life
41
expectancy is likely to exceed 5 years provided that the
D
+ fracture can be accurately reduced in patients under 60
years of age every effort must be made to preserve the
femoral head. Prosthetic replacement will inevitably fail
with the passage of time.
Fixation devices E
The profusion of fixation devices is testimony to the poor
union rate of intracapsular fractures and the endeavours
'j.
to improve this by more secure fixation.The literature is
confused by reports quoting wide differences in results
between individual authors and from different institutions F
but when randomized prospective controlled trials have
been carried out by some authors, results are all very similar.
The evidence suggests that displaced subcapital
fractures unite better with adequate internal fixation. Two
G
implants are better than one, and a screw can ~e inserted
~
with less trauma than a nail and is less likely to disturb the
reduction.

In Standard Orthopaedic Operations, Third Ediction by
J.Crawford Adams H
294 SUPREME COURT REPORTS [2009) 7 S.C.R.

A Comment
Efficient internal fixation of femoral neck fractures is not
always simple and it demands considerable precision.
The slogan should be: "Get it right first time". All too often
the operator accepts an inferior reduction, an imperfect
B position of the nail or screw, or incorrect length of the
fixation devices. Defeat must not be accepted
perseverance is well rewarded.
Trouble is often experienced with the radiographic control.
c Unless the setting up of the apparatus is supervised by
the surgeon himself films that are virtually useless may be
produced. In particular, they often fail to show the femoral
head adequately in the lateral projection. The reason for
this: is usually that the cassette is not pushed firmly enough
D
into the loin, or that the beam is wrongly directed. These .
points must be checked every time a film is exposed. The
same remarks apply to the use of the image intensifier.
If the correct rotational position of the limb is not insisted
upon it often happens that the lateral radiographs show
E the femur semi-obliquely rather than in the true lateral
projection. Acceptance of such an incorrect position makes
accurate insertion of the nail and screw unnecessary
difficult.
Choosing the correct length of the nail and of the screw
F should not present any special problem because the length
of the guide wire within the bone can be determined
accurately by measuring the amount still protruding, and
to this may be added or from it subtracted an amount as
measured on the check radiographs. One necessary
G precaution needs to be mentioned, however, that is, to
measure the length of the nail directly with a ruler before
it is inserted, and not to rely simply on the figure engraved
upon it: the length as engraved is not always the effective
length that will enter the bone, for it may include the head
H of the nail.
DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 295
S. RAMANUJAM [HARJIT SINGH BEDI, J.]
·"'- A hazard that needs further mention is that of inadvertently A
driving the guide wire forwards with the nail. This can
"'I present a very serious difficulty if the wire is driven across
the hip joint into the iliacfossa, for the guide wire may be
broken off by repeated hammer blows upon the nail. In
such a case the only way of retrieving the broken-off part B
of the guide wire is by exposing the iliac fossa and locating
;
,, .
the tip of the wire from within the pelvis. This dilemma is,
however, easily avoided if the precaution is taken of
examining the guide wire repeatedly while the nail is being
driven in. This entails removal of the cannulated punch c
and measurement of the protruding part of the guide wire
to see whether it is being driven on. At the same time is
wise to grip the guide wire in a hand chuck and to rotate

.,
-'
.+-
it to and fro: if the wire is being gripped dangerously by
the point of the nail it will not rotate freely, and at this
danger signal the wire should be promptly withdrawn.
D

All these points of detail are important: neglect of any one
of them may easily lead to failure.
Alternative Techniques
E
It is not universally accepted that fixation by a nail and
a screw is the most effective method. The compression
'I,;· hip screw, the use of which is described."
In Watson-Jones Fractures and Joint Injuries, Edited by
J.N. Wilson, Sixth Edition, Vol.I it has been observed as F
under:
Treatment
The choice of treatment for femoral neck fractures depends
upon three factors: G
>-t:
1. The age and fitness of the patient
2. The type of fracture
3. The degree of displacement
H
296 SUPREME COURT REPORTS [2009) 7 S.C.R.

A Undisplaced fractures are treated by protected weight J

bearing until union occurs or by internal fixation in situ to
prevent displacement. If it is decided not to operate,
regular radiographs are needed to be sure that the position
does not change.
B Displaced fractures can be treated by internal fixation or
prosthetic replacement.
~

Internal Fixation. The fracture can be held with several fine "\
pins, a pair of crossed nails or a dynamic compression
screw and plate. This device compresses the fracture site
c and is the preferred treatment in most centres. All of these
i:ire inserted under image intensifier control. Internal fixation
is particularly suitable for the larger fragments caused by
basal fractures. Accurate reduction and fixation is more
difficult in severely displaced fractures and those with small
D fragments.
.. t
+
Indications.
Internal fixation: fit; young, little displacement
Prosthesis : unfit, old, displaced fractures
E
Results
Internal fixation: better long term result. More complications.
May need second operation. Slow rehabilitation.
Prosthesis: early mobilization. Long-term complications
F are rarer but more serious. A good guideline is to fix the
fractures of fit patients under 65 and replace the rest.
The fracture must be protected from full weigh bearing
after fixation, which is difficult in the elderly patient.
G If successful, internal fixation of the fracture produces an
almost perfect hip if the fracture is complicated by aseptic ~'
necrosis or non-union, a second operation will be required
to replace the head with a prosthesis. The femoral head
may also collapse onto the pins, damaging the
H acetabulum.
..'¥

DR. C.P. SREEKUMAR, M.S. (ORTHO) V. 297
S. RAMANUJAM [HARJIT SINGH BEDI, J.]

Prosthetic replacement. Immediate replacement of the A
head with a Thompson or Austin-Moore prosthesis avoids
the complications of non-union and aseptic necrosis and
allows immediate full weight bearing.

Early mobilization has many advantages, but the
prosthesis may loosen or the femoral head may erode the B
floor of the acetabulum. If either complication occurs, a
·total hip replacement willbe needed. The wound may also
>< .
become infected, making excision arthroplasty necessary.

As always with prosthetic replacement, the results are c
better than other techniques t when they are successful
but far worse when they are not."

19. Mr. RanjitKumar and the respondent have fi!ed some
additional texts alongwith their written submissions but as they
• are largely repetitive they need not be referred to. In view of the D
+ aforesaid decisions; we find that no firm conclusion as to the
preference of one or the other procedure can be drawn but for a
Garden type Ill fracture on a young person, internal fixation is
ordinarily the favoured but not the only option as some of the .
texts afore-referred also proceed on a school of thought which E
prescribe that in order to avoid long drawn out recovery and
other complications, it is advisable to go in for a hemiarthroplastY'
notwithstanding the age factor. It has also bee11 observed that
"t·
condition of the patient and of the bone would be relevant
determining factors in the choice which the doctor wishes to F
make. The appellant, in his evidence, explained as to why he
had chosen hemiarthroplasty over internal fixation in the following
words:
"During the surgery I was assisted by Dr. Naivasivayam •
who was a Surgeon for 20 years of experience attached· G
~:t to Government General Hospital, Madras. One Dr.
Gopinath was a stand-by during the Surgery. He was the
Doctor who had treated him for infertility. From the 1st X-
ray it was found that the fracture was garden type I. From
the second X-ray it was found that the fracture was garden H
,.

298 SUPREME COURT REPORTS [2009] 7 $,C.R.

' _;,
A type 111. During the operation I found the head of femur to
be unhealthy. The size of the prosthesis is a measure
from the head of the femur removed from the patient during
the course of surgery by a special measuring device. I
was satisfied with my whole procedures."
B 20. In cross-examination, he further stated that due to
deterioration of the fracture site, he had decided to go in for
surgery instead of internal fixation. It is also relevant that though . ·'\
the respondent had sought the opinion of Dr. Ajit Yadav of the
Tamil Nadu Hospitals on 30th May 1992, he produced no
c evidence to off-set the appellant's evidence as to why he had
chosen hemiarthroplasty over ir.ternal fixation. It is equally
significant that the respondent had taken the advice of several
renowned doctors including Dr. Mohan Das and Dr. Nand Kumar,
but none of them in their treatment notes observed adversely
D about the choice of treatment nor any negligenc;e in the actual •
~
operation. In the light of the fact that there is some divergence
of opinion as to the proper procedure to be adopted, it cannot
be said with certainty that the appellant, Dr. Sreekumar was
grossly remiss in .going in for hemiarthroplasty. In Jacob Mathew
E case (supra) it has observed as under:
"48(1) Negligence is the breach of a duty caused by
omission to do something which a reasonable man guided
by those considerations which ordinarily regulate the *'
conduct of human affairs would do, or doing something
F which a prudent and reasonable man would not do. The
definition of negligence as given in Law of Torts, Ratanlal
& Dhirajlal (edited by Justice G.P. Singh), referred to
hereinabove, holds good. Negligence becomes actionable
on account of injury resulting from the act or omission
G amounting to negligence attributable to the person sued.
•
The essential components of negligence are th,ree: "duty",
"breach" and "resulting damage". ·~
(2) Negligence in the context of the medical profession
·necessarily calls for a treatment with a difference. To infer
H
-
J
DR. C.P SREEKUMAR, M.S. (ORTHO) V. 299
S. RAMANUJAM [HARJIT SINGH BEDI, J.]

rashness or negligence on the part of a professional, in A
particular a doctor, additional considerations apply. A case
of occupational negligence is different from one of
· professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the
part of a medical professional. So long as a doctor follows B
a practice acceptable to the medical profession of that
day, he cannot be held liable for negligence merely
because a better alternative course or method of
treatment was also available or simply because a more
skilled doctor would not have chosen to follow or resort c
to that practice or procedure which the accused followed."
21. It would, thus, be seen that the appellant's decision in
choosing hemiarthroplasty with respect to a patient of 42 years
of age was not so palpably erroneous or unacceptable as to
dub it as a case of professional negligence. D
· .......
22. We thus, allow Civil Appeal No. 6168 of 2008 and
dismiss the respondent's complaint. Ipso facto Civil Appeal
No.6167 of 2008 is dismissed. In the light of the fact that the
respondent had appeared in person and is physically
handicapped, we direct that a copy of this judgment be sent to E
him free of cost to his address under Registered cover.

G.N. Appeal dismissed ..