NEERAJ SUD AND ANR.versusJASWINDER SINGH (MINOR) AND ANR.

               [2024] 10 S.C.R. 1475 : 2024 INSC 825

                        Neeraj Sud and Anr.
                                 v.
                  Jaswinder Singh (Minor) and Anr.
                       (Civil Appeal No. 272 of 2012)
                              25 October 2024
   [Pamidighantam Sri Narasimha and Pankaj Mithal,* JJ.]


                           Issue for Consideration
       The NCDRC held appellant-doctor liable for negligence in medical
       treatment and liable for payment of compensation. Whether the
       NCDRC was justified in holding doctor negligent and awarding
       compensation.

                                 Headnotes†
       Negligence – Medical negligence – Complainants are father
       and son – Son was diagnosed of congenital disorder in his
       left eye (PTOSIS) for which a minor surgery was performed by
       appellant-doctor – It was alleged that surgery was performed in
       a negligent manner and eye further deteriorated post-surgery –
       The State Commission, upon examination of the records,
       concluded that the complainants failed to establish any
       negligence or carelessness on part of the doctor – However,
       the NCDRC held appellant-doctor liable for negligence in
       medical treatment and liable for payment of compensation –
       Correctness:
       Held: It is found that doctor 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 – No evidence was adduced to
       prove that he had not exercised sufficient care or has failed to
       exercise due skill in performing the surgery – It is settled 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



* Author
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    complainant has not adduced any evidence to establish that doctor
    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 doctor was not
    exercised by him in discharge of his duties – 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 to exercise the due skill possessed by
    him in discharging of his duties – Thus, the judgment and order of
    the NCDRC is hereby set aside and that of the State Commission
    is restored. [Paras 16, 17, 18, 20]

    Negligence – Medical Negligence – Actionable negligence –
    Three constituents:
    Held: 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 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. [Para 14]

    Negligence – Medical Negligence – When a medical professional
    may be held liable for negligence:
    Held: 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 – In the instant case, 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 appellant had not exercised due diligence, care or skill which
    he possessed in operating the patient and giving treatment to him.
    [Para 15]
[2024] 10 S.C.R.                                                           1477

          Neeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr.


                                          Case Law Cited
      Jacob Mathews v. State of Punjab and Another [2005] Supp. 2
      SCR 307 : 2005 (6) SCC 1 – referred to.
      Bolam v. Friern Hospital Management Committee (Queen’s Bench
      Division) English Law (1957) 1 WLR 582 – referred to.

                                          List of Keywords
      Negligence; Medical negligence; Eye surgery; Overt act or omission;
      Reasonable competence; Res Ipsa Loquitor.

                                      Case Arising From
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 272 of 2012
      From the Judgment and Order dated 24.08.2011 of the National
      Consumers Disputes Redressal Commission, New Delhi in FA
      No. 245 of 2005
      With
      Civil Appeal No. 5526 of 2012

                                 Appearances for Parties
      Rajesh Garg, Sr. Adv., Ms. Neha Matharoo, Mandeep Singh, Mahesh
      Kumar, Sudarshan Rajan, Ms. Srishti Sharma, Ramesh Rawat,
      Rohit Bhardwaj, Hitain Bajaj, Ashutosh Gupta, Aryan Ahmed, Amit
      Prasad, Ms. Ruchika Prasad, Ayodhya Prasad, Ms. Chanya Jaitly,
      Mayank Kshirsagar, Advs. for the appearing parties.

                      Judgment / Order of the Supreme Court

                                             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
      Commission,1 New Delhi deciding First Appeal No.245/2005 filed


1    Hereinafter referred to as ‘NCDRC’
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       by the complainants against Dr. Neeraj Sud and the Post Graduate
       Institute of Medical Education & Research,2 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 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
       eyes of the son and both eyes had normal 6/9 equal vision and the


2    Hereinafter referred to as ‘PGI’
[2024] 10 S.C.R.                                                     1479

        Neeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr.


     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 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.
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
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     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. 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 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.
[2024] 10 S.C.R.                                                     1481

         Neeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr.


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 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 Another.4 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 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


3   English Law (1957) 1 WLR 582
4   [2005] Supp. 2 SCR 307 : (2005) 6 SCC 1
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     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 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.

     Result of the case: Appeals disposed of.



     †
         Headnotes prepared by: Ankit Gyan