1. The respondents/ negligence against the orthopaedic surgery that complainants filed CC/4/2006, alleging medical appellants in respect of an alleged negligent resulted in deformities and the State Commission taking notice of a handicap of 45% as well as reduction in the length of her left leg by 1.5 inches allowed the complaint awarding the amount of expenses incurred in the medical treatment of the patient and in addition thereto a sum of Rs.10,00,000/- for the reduction in the chances of the patient to settle in life and a further Rs.5,00,000/- as compensation for mental agony and physical harassment. This order was impugned by the complainants in FA/735/2017, alleging that the State Commission had awarded a lesser amount as claimed and therefore the same should be enhanced. The said appeal FA/735/2017 came to be dismissed on the ground of delay on 14.02.2023.
2. The present appeal has been preferred by the Hospital and the doctor assailing the same impugned order contending that the order of the State Commission is based on erroneous assumptions of fact and law and therefore the same deserves to be set aside. The respondents in this appeal had also been extended the aid of learned amicus curiae, Mr. Sehel Khan who was also heard and on 18.08.2025 we passed the following order:
"Heard Mr. Kunal Bahri, learned counsel for the appellants and Mr. Sehel Khan, Amicus Curiae for the respondents.
Learned counsel for the appellants has prepared a convenience compilation which shall be handed over when the matter proceeds on the next date for final hearing.
Having examined the order sheets and the other documents on record as well as the pleadings prima facie this was a case relating to medical negligence alleged by the respondents/ complainants against appellant regarding orthopaedic surgery. The delay in the filing of this appeal was condoned on 10.11.2014 and it appears that the respondents/ complainants had also filed FA/735/2017 against the very same impugned order for enhancement of the compensation.
The said appeal came to be dismissed on the ground of delay on 14.02.2023. The order is extracted herein under:
"The present Appeal has been filed in the year 2017 against the order dated 01.08.2012 of the State Commission. The Appeal since been delayed for more than 4 years, an application IA No. 6165 of 2017 has been moved seeking condonation of delay.
IA No. 6165 of 2017 ( condonation of delay)
1. Arguments on this application are heard.
2. It is settled proposition of law that party seeking condonation of delay needs to explain the delay of each and every date and of such nature which were beyond its control and which prevented him / her to approach the Court for filing the Appeal. In this application, no ground except that Appellant had been unwell has been disclosed.
3. It is settled law that condonation of delay is not a matter of right. The person who is seeking condonation of delay has to show the reasonable cause which prevented him / her from filing the appeal / revision within the period of limitation. The Hon'ble Supreme Court in the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited AIR 1962 Supreme Court 361 has held as under:
"12. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. "
4. In case of "R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC), the Hon'ble Supreme Court has held as under:
"5. We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.''
5. In the case of "Anshul Aggarwal vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578," the Hon'ble Supreme Court has held that special nature of period of limitation prescribed under the Consumer Protection Act has to be kept in mind while dealing with such applications. The Hon'ble Supreme Court has held as under:
"5. It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer Fora."
6. It is not disputed fact that respondents had filed FA No. 34 of 2013 in the year 2013 and the applicant (s) have been attending the said Appeal since the year 2013 itself. When the appellants of the present Appeal were in position to attend the Appeal of 2013 as the respondents, then their illness certainly cannot be considered as a sufficient reason for not being able to file this appeal within the period of limitation of 30 days. The reasons for seeking condonation are not even genuine. The grounds shown in the application, therefore, are not sufficient for condoning the delay of 4 years. The application stands dismissed.
First Appeal
Since the present Appeal has been filed with considerable delay of 4 years and application for condonation of delay has been dismissed, the present Appeal also stands dismissed being barred by limitation.''
It also transpires that in relation to the documents that were transacted during the treatment of the patient by the appellant an allegation of criminal negligence came to be tried after an FIR was lodged being FIR No. 479 dated 25.12.2008. The trial was conducted by the learned Judicial Magistrate, First Class, Jalandhar, who vide decision dated 31.01.2020 acquitted the appellant.
However, the complaint giving rise to this appeal had proceeded and was allowed on 01.08.2012 being CC/4/2006. The State Commission found the appellant to be liable and accordingly finding him to be medically negligent imposed an order of compensation as per the order dated 01.08.2012.
The present appeal was filed in the year 2013. The State Commission while proceeding to record a finding against the appellant has taken notice of the investigation, charge sheet as well as the cognizance taken by the court in the criminal case, as well as the other material in relation thereto. Relying on the same State Commission has proceeded to pass the final order on 01.08.2012.
The present appeal was filed as noted above and in between the order of acquittal dated 31.01.2020 by the criminal court was brought to the notice of this Commission and filed on record through IA/6853/2020. The said application came to be allowed and the decision of the criminal court was taken on record.
It is informed by the learned counsel for the appellant that against the order of the learned Judicial Magistrate, Appeal No. 190/2020 was filed before the learned Sessions Judge, Jalandhar by the respondent no. 2, the co-complainant titled as Kultar Singh Vs. State of Punjab & Anr. The appeal has been dismissed on 19.03.2024 confirming the order of the learned Judicial Magistrate. A copy of the order passed by the learned Sessions Judge has been retrieved by us through the internet facility.
During the course of arguments the complainant, who is present in person also intimated that he filed a revision petition before the High Court of Punjab and Haryana against the order of the learned Sessions Judge and the order passed thereon on 19.02.2025 has also been retrieved through the internet that has been perused by us. The revision petition was entertained and was ultimately dismissed thereby upholding that order of the learned Sessions Judge as well as the learned Judicial Magistrate referred to above.
From a perusal of the said orders passed in the criminal proceedings there appears to be a semblance of similarity regarding the evidence that was introduced in the trial by the prosecution and was also tested along with the evidence that was led before the criminal court. The appeal and the revision was filed and contested by the complainant Kultar Singh.
In the background above, the said order relating to the criminal proceedings deserves to be taken notice of, keeping in view the fact that the order impugned in the present appeal passed by the State Commission has taken notice of and relied on certain documents that were part of the investigation and the prosecution of the appellant before the criminal court.
Learned counsel for both the parties shall examine the order passed by the criminal court and point out the evidence which has been considered by the criminal court that may be common or similar to that has been relied on by the complainant in the present proceedings. They shall also assist the Bench by pointing out towards the findings recorded by the criminal court in this regard for the assistance of the Bench.
The complainant informs that in all probability he proposes to question the correctness of the orders passed by the criminal court before the Supreme Court. In the event any such process is adopted, the outcome thereof may be intimated to the Commission for proceeding further in the matter.
The complainant also desires to place on record certain documents relating to the marital status of the patient which he submits may have an impact on the outcome of these proceedings. He can move an appropriate application, a copy whereof shall be served on the learned counsel for the appellant for filing an appropriate response to the same. The said documents shall be subject to any factual and legal objections on that score.
Learned counsel for the appellant may file an appropriate affidavit bringing on record the orders passed by the learned Sessions Judge and by the High Court as well as any document pertaining to any other litigation in this regard.
Let the matter be listed on 03.11.2025."
3. A perusal of the aforesaid order would indicate that while proceeding to hear the matter we had noticed that the impugned order of the State Commission has heavily relied on the criminal investigation records including the charge sheet as well as the cognizance order passed by the court concerned and it has thereafter recorded its conclusion resting its reasons on the basis of the said evidence.
4. The trial was conducted relating to FIR No. 479 dated 25.12.2008 and Dr. Kulwant Singh, the accused and the appellant before us was acquitted on 31.01.2020. The judgment of the learned Judicial Magistrate, First Class, Jalandhar has already been brought on record through IA/6853/2020. We have perused the said judgment extensively and it is for the said reason that we had called upon the learned counsel to bring on record the entire material with regard to the criminal proceedings that has discussed the evidence in detail. One of the witnesses the Civil Surgeon, Gurdaspur who had issued the disability certificate to Sandeep Kaur was also cross-examined and the court came to the conclusion that the assessment of disability was erroneous and against the evidence and without any material to support the same and without examining the report of the Post Graduate Medical Institute, Chandigarh. Allegations were made with regard to manipulation of hospital records and other evidence. The learned Magistrate after discussing the same rejected the contention and found that the prosecution had failed to prove charges of forgery against the accused (the appellant herein). Medical authorities were also discussed with regard to the consequences of pelvic injury and it was held that the prosecution had failed to prove the charges framed under Section 336, 465, 468 and 471 of Indian Penal Code.
5. This exhaustive judgment was challenged in appeal by the respondent no. 2 Kultar Singh before the learned Sessions Judge, Jalandhar and the same was dismissed on 19.03.2024, a copy whereof has been filed as annexure-1 to the affidavit filed on 11.11.2025 vide dairy no. 29545. A copy of the same has been served on Mr. Sehel Khan learned Amicus Curiae for the respondent - complainant. The judgment is in relation to the same proceedings as was referred to in our order quoted above. After discussing the evidence and the arguments raised on behalf of Mr. Kultar Singh, one of the complainants - respondent no. 2 who had filed the said appeal, it was held that the judgment of the Trial Court did not suffer from any infirmity and dismissed the appeal on 19.03.2024.
6. The respondent/ complainant, Kultar Singh filed a criminal revision before the High Court of Punjab being CRR No. 192/2025 and the same was dismissed holding that the findings recorded by the lower courts did not point out towards any infirmity, as they were based on a correct appreciation of the facts, and ultimately dismissed the criminal revision. The judgment dated 19.02.2025 has also been filed on record.
7. Aggrieved the respondent/ complainant, Mr. Kultar Singh filed SLP (Crl.) Diary No. 28100 of 2025 before the Apex Court and the same was also dismissed on 16.10.2025 by the following order:
"Delay in refiling is condoned.
Having heard learned counsel appearing for the petitioner, we are not inclined to entertain this petition. Hence, the Special Leave Petition stands rejected. It is made clear that order of dismissal is limited to the present proceedings only.
Pending application (s), if any, shall stand disposed of."
8. The affidavit filed on record further states that a criminal complaint was lodged through FIR no. 32 dated 12.03.2011 under Section 420, 467, 468 and 471 IPC against the complainant - respondent no. 1, Sandeep Kaur alleging that on 13.08.2004 she obtained a driving licence from the office of the SDM, Pathankot, declaring herself to be medically fit, whereas subsequently, on 14.07.2025, she has procured the handicap certificate from Civil Hospital, Gurdaspur that has been dealt with in the criminal prosecution referred to above. The report of the police to close the proceedings in the said FIR was protested by the appellants and the same was treated as a criminal complaint on 20.03.2019. The evidence was adduced thereafter and on 09.04.2021, the learned Judicial Magistrate, First Class, Pathankot took cognizance and summoned Sandeep Kaur, the respondent no. 1 in the present appeal, to face trial in the alleged offences.
9. The report of the police to terminate the proceedings was rejected and Sandeep Kaur assailed the said order before the High Court in CRM-M-26088 of 2023. According to the complainants the said matter is sub-judice before the High Court, with interim orders therein. The order of the High Court has been filed on record.
10. In the aforesaid background where the impugned order of the State Commission is based primarily on the evidence of the criminal prosecution where the appellant has been acquitted and the order of acquittal has attained finality with the dismissal of the SLP, we find that the said case, which also involved the issues directly relating to the disability and the alleged negligence in the performance of the surgery being intertwined, cannot be ignored. The submissions therefore advanced on behalf of the appellants cannot be rejected without considering the same.
11. The present appeal had been entertained and what we find is that on 10.11.2014, it was admitted and the following interim order was passed:
"Heard. Admit. List in due course.
We direct the appellant to deposit in this Commission, 50% of the decretal amount within six weeks from today. It will be open to the respondents to withdraw the said amount on their furnishing surety to the satisfaction of the Registrar of this Commission to ensure restitution in the event of the appellant succeeding in this Appeal."
12. To begin with the facts, the respondent no. 1 complainant unfortunately met with an accident on 18.08.2003. This accident led to her being brought to the Civil Hospital at Pathankot. The injury was of the pelvic region that was fractured and the civil hospital therefore referred her to Guru Nanak Dev Medical College, Amritsar, keeping in view her serious condition. The parents, however took her and got her admitted to KGM Hospital, Jalandhar run by appellant no. 2, who is an Orthopaedic Surgeon. The complainant, of her own choice got herself treated at the appellant no. 1 hospital through the appellant no. 2 where she remained for about 50 days and was discharged on 07.10.2003.
13. The complaint raised is about negligence which according to the complainant was evident from the consequences of the surgery that led to the shortening of her left leg by 11/2 inches and also causing a disability throughout her life which according to the complainant was 45% as certified by the doctor. It seems that after almost more than 11/2 years of discharge, the complainant dispatched a legal notice on 23.07.2005 and then filed CC No. 4 of 2006 before the State Commission.
14. The complainant also seems to have lodged an FIR, even though belatedly on 25.12.2008 alleging criminal negligence and also levelling allegations of manipulating documents. Charges were framed under Section 336, 420, 468 and 471 IPC against the appellant no. 2 and a long drawn prosecution resulted in the assessment of evidence concerning the five injuries suffered by the complainant comprising of two lacerated wounds, two abrasions and the fracture of the pelvic on its superior and anterior ramiaous. It is the complaint regarding the treatment of this severe pelvic injury which forms the basis of the allegations in the present complaint and was also a matter of inquiry in the criminal prosecution. The learned Judicial Magistrate, First Class, Jalandhar concluded the trial later on.
15. The complaint giving rise to the present appeal being CC No. 4 of 2006 was allowed by the State Commission on 01.08.2012 while the said criminal complaint was pending and the evidence was being examined. Before the State Commission, the allegations were that apart from the negligence in the treatment, the documents were not supplied and even otherwise the signatures of the complainant and her maternal uncle were forged on the letter of consent as well as other documents of the hospital. The contentions raised by the complainant on the alleged medical negligence has been noted by the State Commission in paragraphs 4 to 19 of the impugned order. The State Commission has also noticed the fact that against the framing of charge in the criminal case, the complainant had filed a Revision Petition that was dismissed by the learned Session Judge on 01.10.2011. It is therefore evident that these factors were also taken into consideration by the State Commission while allowing the complaint.
16. There are some facts which need mention at this stage namely that in the criminal case, the issue with regard to the disability certificate produced by the complainant indicating 45% disability was contested and for which an application was moved and an order was passed by the criminal court calling upon the complainant to produce herself before a Medical Board. The complainant refused to appear before the Medical Board and this fact has been recorded by the learned Judicial Magistrate for drawing an adverse inference. It has also been found by the learned Magistrate that the disability certificate relied on by the complainant was not credit worthy as it had been issued without even examining the complainant and the percentage of disability had been erroneously calculated against the norms prescribed.
17. The trial court further recorded a finding that the complainant after certifying her physical fitness had obtained a Driving Licence in 2005. Not only this, the complainant went to Australia and married one Gurdeep Singh on 24.01.2010 and finally became an Australian citizen. The complainant obtained a Driving Licence in Australia as well and there she gave birth to three children. Learned Amicus Curiae has also produced a certification regarding the sacral fracture in the past and the patient suffering from chronic back pain. This certificate dated 25.03.2015 has been issued by one Dr. Mamoona Akbar from the Kuraby Station Surgery, Queensland, Australia.
18. Mr. Sehel Khan, the Amicus Curiae has also produced a copy of the order of the Federal Circuit and Family Court, Australia decreeing a divorce between Gurdeep Singh and the respondent no. 2 Sandeep Kaur. The order of the Court has been produced by Mr. Sehel Khan on instructions from the respondent no. 2 which records the divorce dated 18.08.2023 and the names of three children born of the said wedlock have also been stated in the said order. The document has not been filed through any affidavit but was handed over during the course of submissions by the Amicus Curiae.
19. The aforesaid facts therefore indicate that the respondent no. 2 complainant in spite of the allegations about the consequences arising out of the treatment of her pelvic fracture, she was successful in getting a driving licence in India and in Australia and while living in Australia as a citizen of that country she also married and had three children. The divorce is an unfortunate part of her life, but the fact is that these aspects do indicate that the respondent no. 2 led a family life and was capable of driving in India and also with her valid Driving Licence in Australia.
20. These facts pertaining to her status in life have nowhere been discussed by the State Commission in the impugned order dated 01.08.2012.
21. However, these facts except the fact of her divorce have all been noticed by the Trial Court in the criminal proceedings where this evidence was extensively led and was assessed in the background of the allegations made which involved the examination of the disability certificate and her medical conditions on the basis whereof negligence had been alleged before the court of criminal jurisdiction. Section 336 IPC is extracted hereinunder:
"Act endangering life or personal safety of others.--Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to three months or with fine which may extend to two hundred and fifty rupees, or with both."
22. The question to be examined in a case of criminal negligence broadly is where the accused had proceeded recklessly or in a manner endangering human life likely to cause hurt and injury to any person. One of the ingredients is that there must be a duty to take care which in turn is governed by the knowledge and the skill that the occupation requires and has to be judged from the magnitude and the gravity of the consequences that are likely to ensue if the requisite degree of care is not exercised.
23. The question of the degree of care and skill required to judge and assess an allegation of medical negligence as in a criminal prosecution has been dealt with by the Apex Court in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC 1.
24. The Trial Court proceeded to examine the matter in the light of the evidence as well as the witnesses who were examined including the doctors and then also delved into several medical authorities including Camp-bells Operative Orthopaedics edited by S. Terry Canale referring to pelvic fractures, which refer to the research carried out by eminent people of the said field including the findings of Holdsworth & Henderson and refer to the consequences of sacral deformity on surgery. It also refers to the results of internal fixation of these fractures and then made reference to Rockwood & Green in the book titled "Fractures in Adults" edited by Bucholz & Heckman. The discussion on the nature of the injury, its consequences and the extent of stabilization has been considered in detail. The literature also refers to the use of traction to meet chances of reduction as also the union of the bones. The Trial Court also referred to the book authored by Dr. G.S. Kulkarni, "Textbook of Orthopedics and Trauma" and discussed the consequences that follow in the treatment of such surgery. It also referred to the book of Fractures & Joint Injuries, 6th Edition by Watson - Jones published by Churchill Livingstone and then recorded its findings after discussing the evidence on record. The Trial Court while recording findings observed as under:
The above stated world famous Doctors had given the above stated observations regarding the pelvic injuries. In view of above findings From the reading of above stated authors, it comes out the pelvic injury is a very serious injury and due to pelvic injury, various other complications can came out like sexual problems, conceiving problems, hemorrhage etc. It further comes out that due to pelvic injury, 50 per cent patient can die.
The treatment method observed by the above stated world famous Doctors shows that the traction is one of the best method to cure the pelvic injury. The traction should have to be applied for 8 to 12 weeks. The above stated studies also shows that the X-ray films becomes a old concept. The clear images of the pelvic injuries can be taken by image intensifier machines. The evidence lead by the prosecution will be discussed as follow, which shows that the proper treatment has been given to Sandeep Kaur by the Doctor. After recovering from the pelvic injury, she performed marriage and she is living very happy life and she also gave birth to a female child.
25. The allegation of forging the signatures of the complainant and her uncle was also examined and the Trial Court concluded as under:
The evidence of the prosecution will also suggest that first of all there was no purpose for the Doctor to forge the signatures of Sandeep Kaur and her uncle. Furthermore, even for the sake of arguments, it be presumed that the doctor forged the signatures of Sandeep Kaur and her uncle even then the prosecution has miserably failed to prove the forgery.
26. The above quoted findings are reproduced from paragraph 34 of the order of the Trial Court dated 31.01.2020.
27. The allegations of negligence and wrong treatment was sought to be proved on the basis of the shortening of the right leg of the complainant. It may be pointed out that the Trial Court passed an order calling upon the complainant to appear before the Medical Board vide an order dated 14.07.2015, but she refused to appear. The said examination had become necessary as there was a clear challenge raised by the accused to the claim of 45% disability and the certificate issued in this regard by the complainant. This was examined by the Trial Court and the following findings was recorded in paragraph 35 of the judgment:
35. In order to prove the wrong treatment, the prosecution alleged that due to the wrong treatment the right leg of Sandeep Kaur was shortened for one and half inch. The prosecution relied upon the disability certificate Ex.D5. First of all the complainant has intentionally not placed on record her disability certificate because the said certificate has been issued without adopting the due process for assessment and certification of disability. Rather, the issuance of said certificate Ex.D5 shows that it was got issued by the complainant in connivance with Doctor Sukhdeep Singh PW-5. Doctor Sukhdeep Singh formed his opinion on the basis of report Ex.D5/2. Surprisingly, the said letter Ex.D5/2 is issued by Dr. Radhe Sham, Head of the Department of Orthopedics, Government Medical College, Amritsar. In the said letter he formed opinion that the left leg of Sandeep Kaur has been shortened by one and half inch and there is subjective hipothesia on a left foot. There is painful scar on left heel. Her disability is 45 per cent and it is permanent. On the basis of this opinion Ex. D5/2, PW-5 issued disability certificate Ex.D5 by declaring 45 per cent disability of Sandeep Kaur. While, the said witness examined in the court and he was cross examined. He clearly admits that he has not followed the proper procedure for issuing the said certificate. As per assessment and certification of disability guidelines issued in the Gazette notification register No. DL33004/99 (Extra Ordinary) Part-2, SEC 1 June, 13, 2001 issued by Ministry of Social Justice and Empowerment, Government of India, prescribed the procedure and method for assessing and certificating the disability of the patient. Para No.2.3 prescribed extra points for pain, deformities, contractures, loss of sensation and shortening prescribed maximum 10 per cent. It further prescribed that for shortening of 01 inch, there will be no percentage of disability and for shortening of every additional half inch there will be 04 per cent disability. So, as per the above stated guidelines Sandeep Kaur was eligible only for 04 per cent of disability. But she took the certificate of 45 per cent disability.
28. The Trial Court after recording the above findings also took notice of the driving skills of the complainant and having successfully procured Driving Licences in India and Australia indicating her fitness of health. Accordingly, the Trial Court came to the conclusion that the certificate of disability of 45% is not credit worthy and coupled with the fact that she refused to appear before the Medical Board, the Trial Court concluded that the disability certificate of 45% had been obtained by playing fraud. The finding recorded by the Trial Court in paragraph 36 and 37 is extracted hereinunder:
36. It is further important to note that the complainant also got issued the driving licence Ex.DA from DTO Office, Gurdaspur. If Sandeep Kaur was having disability of 45 per cent, then she could not get her driving licence Ex.DA. It is further important to note that before issuing the driving licence a written and driving test is to be passed. It is important to note that the driving licence was issued for scooter and Car. So, definitely Sandeep Kaur passed the driving test of car also. So, it is out of imagination that a person with 45 per cent disability can drive the car. It is further important to note that Sandeep Kaur also got the driving licence from Australia. The said fact has been admitted by her in her cross examination. The Civil Surgeon, Gurdaspur, received complaint against Sandeep Kaur because she got the disability certificate by playing fraud. Thereafter, letter Ex.D6 was written by Civil Surgeon, Gurdaspur, to Sandeeep Kaur to appear before the Board for reassessment of her disability. But she has not appeared before the Board constituted by Civil Surgeon, Gurdaspur. Instead of appearing before the Board, father of Sandeep Kaur sent a letter Ex.D7 whereby he threatened the office of Civil Surgeon that her daughter has already gone through the assessment test and if the Civil Surgeon compelled his daughter to go through the reassessment process, then he will implicate the office of Civil Surgeon in the court case.
37. It is further important to note that even the court constituted a Board at Jalandhar vide order dated 14.07.2015. She refused to appear before the Board. Sandeep Kaur in her cross-examined stated that she is ready to go through the process of reassessment if the Board be constituted. Thereafter, the predecessor court constituted Board vide order dated 14.07.2015 but she again refused to appear before the Board. So, this clearly shows that Sandeep Kaur was not eligible for disability certificate with disability of 45 per cent. Sandeep Kaur also admits that she performed marriage on 24.01.2010 at Australia and she gave birth to female child on 25.10.2010. So, this fact also shows that the complainant within one year from the marriage gave birth to the female child. As earlier stated if the treatment of the complainant would no be as per the medical jurisprudence, then definitely she could not conceive the child within one or two months from the marriage.
29. Coming to the issue of medical negligence, the Trial court also found that during the cross-examination, the complainant had admitted having sought opinion and had undertaken treatments from various hospitals including PGI, The Dayanand Medical College and CMC, Ludhiana, the Vedanta Hospital and AIIMS at Delhi. Not only this, the father of the complainant also consulted one Dr. Malcom Smith in USA, but none of these opinions indicated any negligence in the treatment of the complainant as all these opinions were sought on the basis of the treatment documents relating to the complainant. The Trial Court therefore concluded that there was no document to construe any evidence regarding improper treatment or negligent treatment. Paragraphs 38 and 39 of the judgment are extracted hereinunder:
38. Sandeep Kaur in her cross-examination dated 24.10.2013 admits that her counsel Sh. D.K. Sharma, Advocate, sent a legal notice to the accused on 06.12.2015 but surprisingly not even a single word has been mentioned in the said letter that the accused committed the offence of forgery or medical negligence in the treatment of Sandeep Kaur. This fact has also been admitted by the complainant in her cross-examination dated 24.10.2013. Sandeep Kaur alleged that she get the treatment from various hospitals like from PGI Chandigarh, DMC and CMC Ludhiana, Vidanta Hospital and AIMS at Delhi. The father of the complainant also consulted with Dr. Malcom Smith at USA but none of the Doctors give any opinion that the accused was negligent while treating Sandeep Kaur. Even if, the accused had give the wrong treatment to Sandeep Kaur, then definitely the other Doctors would change the theory of the treatment of Sandeep Kaur. But none of the Doctors have prescribed any other theory except traction on the person of Sandeep Kaur. This fact also admitted by Sandeep Kaur in her cross-examination dated 24.10.2013.
39. It is further important to note that the complainant has not filed even a single document to show that she was not properly treated by the accused. Rather, the accused brought on record the letter Ex.D9. The execution of said letter has been duly admitted by the complainant in her cross examination dated 24.10.2013. The said letter shows that Sandeep Kaur approached before the Radiologist Department PGI Chandigarh and the Senior Resident Consultant of PGI opined that he got conducted the X-ray of Pelvic with both hip joints with view of both sides (AP) and L5 spine. Meaning Lumbo Sacral spine. He further opined that there are old healed fracture seen involving the left sacral ala and by laterally ischiopubic rami with upward shift of left hami Pelvic. The said opinion was formed by the Senior Resident on 31.07.2004. So, the above stated opinion clearly shows that the Pelvic injury of Sandeep Kaur was purely healed and there was no any other non union or mall union of the Pelvic of Sandeep Kaur. In cross-examination dated 11.04.2016 the complainant admits that she brought her original passport and as per the said passport, she is Australian Citizen. She took the Australian citizenship on the basis of marriage with a Australian citizenship Gurdeep Singh. She went to Australia in July, 2010. She further admits that she does not have any document of Australian Government to show that she is dependent on Australian Government. She further admits that she is having a Health Card which is issued by Civil Citizen of Australia. She further admits that she does not have any disability certificate issued by Australian Government. Firstly, she admits that she brought the Health Card of periodic check up from the Doctor. She was also insured in Australia. She further admits that without insurance has to be taken the history of illness has to be given. She further admits that she got medical examination when she got immigration to Australia. She has not produced the said medical record. She further admits that it is correct that one who has to take immigration to Australia, the embassy people asked for a disclosure regarding previous illness. She further admits that she has not disclosed her illness. She further admits that she have got a Australian Driving Licence with her. She further admits that it is correct that on the driving licence it has not been mentioned that "I am handicapped". She further admits that it is correct that the licence is issued in Australia after the written and driving test and only after passing the same, the driving licence is to be issued. She further admits that she is not taking any pension from Australian Government. She also not getting any help from Australian Government being handicap. She also admits that she get citizenship number in Australia. After feeding citizenship number, the history of said citizen from his entrance at Australia till upto date can be downloaded. But she has not produced the said history. She further admits that it is correct that even after the directions of the court, she refused to examine by the Medical Board. She further admits that even she refused to appear before the Medical Board constituted by Civil Surgeon, Gurdaspur. She further admits that it is correct that under her instructions her father had mentioned that she is not ready to be examined by the Medical Board and the copy of the said letter given by her father is Ex.D7. She further admits that it is correct that on their asking the Head of the Department of Orthopedics, Government Medical College, Amritsar given opinion to Assistant Commissioner of Police, Model Town, Jalandhar regarding her medical opinion for her treatment. The copy of said letter is Ex.D10. She further admits that Sh. D.K Sharma, Advocate, sent a legal notice on her instructions on 23.07.2005. She further admits that the said letter is Ex.D11 and complaint is Ex.D12. She further admits that it is correct that she have not mentioned the fact that her signatures were forged, in the letter Ex.D11 and Ex.D12. She further admits that her father paid the bill Ex.P14. She further admits that during her admission, Dr. Katyal had come for scanning and had given his report, the copy of the same is Ex.P15 on the judicial file. She further admits that she came to know that Dr. Sanjay Mittal, Kidney Expert, has visited the hospital during her hospitalization and the copy of the report of Dr. Sanjay Mittal is Ex.P16. She further admits that there is no report of Doctor in writing to the effect that accused was negligent in his treatment. She further admits that she have got herself checked from PGI and AIMS and number of other hospitals but none of the hospital has changed the treatment or give in writing that the treatment given by the accused is not correct. She further admits that she does not have any document written by Doctor in Australia that the accused was negligent in treatment. So, from the above stated admissions of Sandeep Kaur it comes out that Sandeep Kaur is citizen of Australia but she has not produced any document to show that she is dependent on Australian Government. No Health Card produced by Sandeep Kaur. No disability certificate issued by Australian Government produced by Sandeep Kaur. No insurance policy produced by Sandeep Kaur, Even through, she is insured in Australia. She was medically examined when she got immigration of Australia. She took the Australian Driving Licence. She has not been shown as handicapped on her Australian passport. She undergoes the written and driving test for getting the driving licence of Australian Government. She is not receiving any pension or steepened being unemployed in Australia. She also have not produced her history card. So, the non production of above stated documents clearly shows that she is hail and healthy. She is driving the car and she is doing work in Australia because she is not getting any unemployment, pension or stipend etc. from Australian Government. Moreover, she got the Australian Driving Licence and she is not been shown as handicapped in her Australian Passport. So, this fact clearly shows that she is hail and healthy and she is doing job in Australia.
30. It has also been brought on record that after the lodging of the FIR, the Assistant Commissioner of Police had sought the opinion of Dr. R.P.S. Boparai, the Professor and Head of the Department, Orthopedics, GMC, Amritsar who had opined that there was no negligence on the part of the Surgeon. Paragraph 40 of the judgment of the Trial Court is extracted hereinunder:
40. Moreover, before registration of FIR, the Assistant Commissioner of Police, Model Town, Jalandhar took the opinion of Medical Expert namely Dr. R.P.S Boparai, Professor and Head of Department of Orthopedics, Government Medical College, Amritsar. The above stated Doctor in his letter Ex.D10 has clearly opined that no negligence on the part of Orthopedics Surgeon has been made out from the treatment given to Sandeep Kaur. He further opined that minor residual disability if any could be the result of multiple fractures sustained by her during the accident, which is normal in due course of nature.
31. One of the allegations made was that no X-ray or Scan had been conducted by the appellant before starting the treatment of the complainant. This has been answered on the basis of evidence in paragraph 43 which is extracted hereinunder:
43. Moreover, the case of the prosecution is that no X-ray scan etc. has been conducted by the Doctor before starting the treatment of Sandeep Kaur but Ex.D14 is the bill of payment made by Kultar Singh regarding the treatment of Sandeep Kaur. The said bill has also been admitted by Sandeep Kaur in her cross examined. In the said bill a sum of Rs.1000/- was charged for scanning of Sandeep Kaur. The Doctor Katyal also gave his report regarding scanning Ex.D15 and Doctor Sanjay Mittal, nephrologist i.e. Kidney Expert also conduct the scanning of Sandeep Kaur vide report Ex.D16. Even no Doctor in Australia gave his opinion that the accused Doctor was negligent in the treatment of Sandeep Kaur.
32. Regarding the treatment through traction to the pelvic injury, the finding recorded by the Trial Court in paragraph 46 is as under:
46. While as per the above stated observations after the Pelvic injury some complications are bound to be happen. Even the patient can be died but instead of thanking the Doctor, the complainant instituted the criminal proceedings by alleging medical negligence. It is further important to note that the complainant alleged that the accused Doctor has not supplied the medical record of Sandeep Kaur to him for further references. While, Kultar Singh complainant wrote a letter Ex.D7 to Dr. Malcom Smith, MD, Partners Associates, General of Orthopedics, Troma Services, Massachusetts, General Hospital, Yankay, Center for out patient care 55, Fruit Street, Yaw -3C- Boston, Massachusetts 02114, for taking opinion of him regarding the treatment of Sandeep Kaur. Kultar Singh complainant alleged that the accused doctor supplied the medical record of Sandeep Kaur in the year of 2006, while the above stated letter Ex.D17 shows that the complainant was already having all the record of Sandeep Kaur. because in the enclosure list of the letter Ex.D17, he enclosed brief history of the accident case, 2. compact disk, 3. photocopy of initial X-ray two numbers, 4. photocopy of nurve conduction report done on 19.04.2004, 5. photocopy of X-ray report dated 31.07.2004 and latest X-ray Pelvic in original done on 23.11.2004. The said letter was written on 08.01.2005. So, this fact clearly shows that the complainant was earlier in possession of record relating to the treatment of Sandeep Kaur. The complainant further admits that it is correct that traction was provided for her treatment. She further admits that it is correct that she had attached the medical certificate of Doctor Manju Sharma with the file to the fact that she was fit. So, this admission of Sandeep Kaur clearly shows that she was fit and fine after treatment.
33. There was a dispute with regard to the effective use of CR machine as against the normal X-ray machine. This was also answered by the Trial Court after discussing the evidence in paragraph 48, which is extracted hereinunder:
48. It is the case of the prosecution that the Doctor started the medical treatment of Sandeep Kaur without conducting her X-ray, MRI, CT Scan etc. While, it is the case of the accused that he is having CR Machine and CR Machine is giving live images of the organs of the patients. CR Machine is more effective than the X-ray Machine. It is also variously heard in the newspapers and articles that now the medical science is developed upto the extent that the Doctor can handle each and every severe to severe accident with their quality of understanding and with their experience. On the other hand, the technology is also played very important rule in this aspect. One side the complainant alleged that his X-ray was not conducted. while complainant PW 2 in his examination-in-chief himself stated that "During hospital treatment period Doctor Kulwant Singh was conducted the test with his CR Machine and told us that I have done the scanning and the bones are united and he also told that the bone marrow is reconstructing". So, this admission of the complainant himself shows that the Doctor was having Image Intensifier Machine (CR machine), from whom he took the live images of the damaged organs of Sandeep Kaur. The examination-in-chief of the complainant further shows that they were not relative with the accused Kulwant Singh and the Doctor of Pathankot referred Sandeep Kaur to Civil Hospital, Amritsar but inspite of that they preferred to admit her in K.G.M. Hospital of the accused.
So, this fact also shows that Doctor Kulwant Singh is well qualified and renowned Orthopedics and that is why the parents of Sandeep Kaur preferred to approach with Dr. Kulwant Singh.
34. It was recorded in paragraph 49 that the Punjab Medical Council had also certified that there was no negligence on the part of the doctor. Paragraph 49 of the judgment is extracted hereinunder:
49. The complainant further in his cross-examination admits that he got examined her daughter from PGI, Apolo Hospital, Batra Hospoital, Chandigarh, CMC and DMC Ludhiana and main other prominent Doctors of Amritsar but none of the Doctors of hospitals gave any opinion in writing that the accused give wrong treatment to Sandeep Kaur. He further admits that even the Doctor in America did not give in writing that there was a negligence in diagnosis and treatment by the accused. He further admits that it is correct that Punjab Medical Council vide letter Ex.D2/A had specifically written that no negligence could have proved against Dr. Kulwant Singh. He has not challenged the letter Ex.D2/A before State Commissioner. He also admits that he has filed complaint against Medical Council of India but no report has been given by Medical Council of India that there was negligence on the part of Doctor. While, the perusal of file shows that the Medical Council of Punjab vide letter Ex.D3 has formed opinion that there is no negligence on the part of the Doctor. Similarly, the Medical Council of Punjab also formed opinion vide letter Ex.D2/A that accused Kulwant Singh was found to treat the patient as per norms and no negligence could be proved against him.
35. Then the discussion centred around the allegations of the signatures being forged and after a lengthy discussion, the Trial Court came to the conclusion that the said allegation was incorrect and false after discussing the report of the Forensic Laboratory, Chandigarh dated 19.09.2006. These findings have been categorically recorded after also indicating the evidence regarding handwriting experts from paragraph 64 to 67 of the judgment of the Trial Court. The findings recorded by the Trial Court are clearly to the effect that the prosecution story was clearly framed and the case has no legs to stand including a manipulated report of disability of 45%. The decision therefore concluded that the prosecution miserably failed to prove any of the allegations including negligence or preparation of any fake documents or forging of any signatures by the appellant no. 2. The Trial Court in its concluding part observed as under:
Professional may be held liable for negligence on one of 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 that profession. 2005 (3) RCR (Criminal) 836: 2005 (2) Apex Criminal 649 (SC) relied.
So, in view of the above stated landmark judgment of Hon'ble Supreme Court of India, it clearly comes out that even though the State Consumer Redressal Commission, has decided the case in medical negligence in favour of the complainant but that judgment would not be sufficient to convict the accused in criminal case for medical negligence. It is further important to note that the Hon'ble Supreme Court of India in case titled Jacob Mathew Vs. State of Punjab & Anor. 2005 (3) R.C.R. (Criminal) 836 held that:
B. Indian Penal Code, Section 304A - Medical negligence - An error of judgment on part of professional is not negligence. A private complaint against doctor may not be entertained unless the complainant is supported by another competent doctor.
C. Indian Penal Code, Section 304-A 0 Medical negligence - Negligence by doctor. Doctor is not criminally liable unless negligence is reckless and gross. Doctor may be liable in tort.
D. Indian Penal Code, Section 304-A Medical negligence:
1. When the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at the point of time on which it is suggested as should have been used.
2. An error of judgment on the part of a professional is not negligence per se.
3. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake.
4. A Surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end dose of medicine to his patient.
5. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. (1957) WLR 582 relied. E. Indian Penal code, Section 304-A, prosecution of medical practitioners. Medical negligence & guidelines:
1. Doctors can be prosecuted for an offence of which rashness or negligence is an essential ingredient, but they are to be protected from frivolous and unjust prosecutions.
2. Many a complaint prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.
3. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.
4. The Investigating Officer, before proceeding against the doctor should obtain an independent and competent medical opinion preferably from a Doctor in Govt. Service.
5. A doctor may not be arrested in routine, unless his arrest is necessary for furthering the investigation or for collecting evidence or the Doctor would not make himself available to face prosecution unless arrested.
83. The Hon'ble Supreme Court of India in case titled Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjeet and others 2009 (4) R.C.R. (Criminal) 1 held that Criminal medical negligence and civil medical negligence - deficiency service - A patient admitted in hospital who had rashes all over her body. It was a case of dermatology. The doctor did not refer her to dermatologist instead he prescribed "Depmedral" in higher dose beyond maximum recommended dose without foreseeing its implications. Condition of patient deteriorated and died after some days of treatment. Held, it was medical negligence on the part of Doctor and hospital but doctor not guilty of criminal negligence under Section 304-A of Indian Penal Code. It is deficiency of service. Case remitted to consumer commission for determination of quantum of compensation.
G. Indian Penal Code, Section 304-A - Consumer Protection Act, 1986, Section --- Medical negligence - Tort - criminal negligence and civil negligence. Standard of proof. An act which may constitute negligence of even rashness under torts may not amount to same Section 304-A.
H. Tort Law - Meaning of word "Negligence" - held -
1. Negligence is the breach of a duty caused by the 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 which is prudent and reasonable man would not do.
2. Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one.
3. Negligence is strictly non-feasance and not malfeasance. It is the omission to do what the law requires, or the failure to do anything in a manner prescribed by law, 2003 (4) RCR (Civil) 764 (SC) relied.
Medical Negligence - Held -
1. Mere deviation from normal professional practice is not necessarily evidence of negligence.
2. Mere accident is not evidence of negligence.
3. An error of judgment on the part of a professional is not negligence per se. 4. Simply because a patient has not favourably responded to a treatment given by a physical or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitor. 2005 (3) RCR (Criminal) 836:2005 (2) Apex Criminal 649 (SC) relied.
J. Medical Negligence. The patient by and large are ignorant about he disease or side or adverse affect of a medicine. Ordinarily the patients are to be informed about the admitted risk, if any, if some medicine has some adverse affect or some reaction is anticipated, he should be informed thereabout.
The above stated judgments are fully applicable in this case because in the above stated judgments, the Hon'ble Supreme Court of India held that an act which may constitute negligence of even rashness under torts may not amount to same under section 304-A IPC. The above stated judgments further shows that the accused would not held guilty for offence even under Section 304-A IPC after the death of patient but in this case the Doctor treated the patient in such a way that inspite of severe pelvic injury she was treated so nicely, so, she is enjoying the matrimonial life and she also give birth to children. Moreover, no any deformity has been found by any of the Doctor in her treatment.
36. While concluding, the Trial Court on discussion held as under:
Campbell, Rockwood and Greens, Dr. J.S Kulkarni and Watson Jones has one opinion that hemorrhage can result from severe pelvic injury immediately after the injury. In this case also Sandeep Kaur was effected with hemorrhage after the severe pelvic injury. The doctor was known about the said fact, so that is why he already arranged the blood for the expected hemorrhage and due to hemorrhage blood was also transfused to Sandeep Kaur after taking from the near blood bank vide receipt Ex.DW2/1, Ex.DW2/2, Ex.DW2/3 and Ex.DW2/4. So, this fact also suggested that the accused doctor was well qualified doctor and he was known about the consequences of severe pelvic injury upon the person of Sandeep Kaur and that is why he also handled the hemorrhage of Sandeep Kaur and, thereafter, he caused to survive her. But instead of thanking the Doctor, the present false and frivolous litigation has been lodged by the complainant against the accused person.
It is further important to note that Campbell, Rockwood and Greens, Dr. J. S Kulkarni and Watson - Jones has one opinion that traction is one of the best mode for treatment of pelvic injuries. The above stated authors suggested that an external fixator should be applied immediately to decrease motion about the pelvic. Campbell goes upto extent that external fixation is used frequently for definite treatment of Tile type B injuries. Kellam obtained and maintained reduction in 83 per cent type B1 injuries, 66 per cent of type B2 injuries, and 27 per cent of type C injuries. If the reduction is maintained, 100 per cent of patients were functionally normal but if the reduction was not maintained, 80 per cent required analgesics for posterior pain. So, from the above stated data, it clearly comes out that the traction is one of the best mode for the treatment of pelvic injuries and the said treatment has been nicely applied by the accused doctor upon the person of Sandeep Kaur that is why she becomes fit to enjoy her matrimonial life and to enjoy the company of her beloved children. She further become fit to pass the driving test in India and Australia. She becomes fit enough to declare the immigration medical test for taking Driving Licence and permanent residence in Australia.
86. Hence, in view of the whatsoever stated above, this court is of the opinion that the prosecution has miserably failed to prove the case against the accused person, rather it comes out that the present false and frivolous litigation has been lodged by the complainant with malafide intention for the reason best known to him. Thus, in these circumstances accused Doctor Kulwant Singh is hereby acquitted from the charge framed U/s 336, 465, 468, 471 of Indian Penal Code. The bail and surety bonds already furnished by the accused are kept intact for the purpose of appeal or revision. After the expiry of period of appeal of appeal or revision, the bail bonds and surety bonds already furnished by the accused shall be discharged automatically. Case property if any be also disposed off after the expiry of period of appeal of revision. File be consigned in the record room.
37. Having noticed the findings recorded by the learned Magistrate in the criminal proceedings, it may be reiterated that the aforesaid findings were confirmed in appeal by the learned Sessions Judge when the appeal filed by Mr. Kultar Singh came to be dismissed on 19.03.2024. Mr. Kultar Singh further preferred a criminal revision petition before the High Court of Punjab against the aforesaid order and the same has also been dismissed on 19.02.2025 that has also been placed on record. Not only this, Mr. Kultar Singh further filed SLP(Cr) Dy. No. 28100 of 2025 before the Apex Court and the same was dismissed on 16.10.2025, the order whereof has already been extracted hereinabove. It is thus evident that the findings recorded by the learned Judicial Magistrate stands confirmed upto the Apex Court.
38. In order to examine as to what would be the impact when there are proceedings both of a civil nature and criminal proceedings being contested between the parties, one of the decisions of the Apex Court that needs to be mentioned is that of the Constitution Bench in the case of Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr., (2005) 4 SCC 370 that also refers to a previous Constitution Bench judgment of the Apex Court in the case of M.S. Sheriff vs. State of Madras, AIR 1954 SC 397 and proceeds to observe in paragraph 32 as under:
32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [1954 SCR 1144 : AIR 1954 SC 397 : 1954 Cri LJ 1019] give a complete answer to the problem posed: (AIR p. 399, paras 15-16)
"15. As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
xxx"
39. Applying the ratio thereof, we now proceed to deal with the impugned order.
40. As against the aforesaid conclusions having been drawn in the criminal prosecution, the impugned order of the State Commission records the arguments in the paragraph 13 to 16, which ends with the question posed by it "Let us examine whether the OPs are guilty of medical negligence or not?". The findings are then narrated in paragraphs 17, 18 and 19 which are extracted hereinunder:
17. The contention of the learned counsel for the OP is that in addition to consulting the X-ray report and the record Ex.C1 of the Civil Hospital, Pathankot, the OP had scanned the injury under an image Intensifier and, thereafter, started the treatment. Admittedly, they did not get any fresh X-ray taken before starting the treatment. The contention of the OP is that they used to scan the injury under the Image Intensifier and, therefore, there was no need for X-ray. It, however, does not appear to be correct. No evidence was produced by the OPs if there was any such Image Intensifier with them. The OP has produced the record of treatment but in the said record, there is no mention if and when the injuries were seen under the Image Intensifier. No copy of the impression given by the Image Intensifier was placed on treatment file nor any copy was produced on the record. No mention was made in the treatment chart as to what they observed after scanning the injuries under the Image Intensifier. There is no document/report or mention in the treatment record if the OP had seen the injuries on the left side pelvis or sacral region of the complainant. We are, therefore, of the opinion that the contention of the OP that the injuries were examined under the Image Intensifier is a false story, subsequently, coined by the OP to cover up their negligence in treating the complainant. If the complainant had been examined under the Image Intensifier, a mention thereof would have been made in the treatment record as to on which date and by whom, such an examination was conducted. It also would have found a mention as to what was observed and what was the condition of the injury observed by them. We are, therefore, unable to believe this story coined by the OP.
18. The contention of the OP is that he did not call any Radiologist to study the images allegedly taken by him under the Image Intensifier. It may be mentioned that in order to study the bone fractures, the Radiologist is the appropriate person and in its absence, we cannot say that the location and extent of the fractures has been correctly appreciated by a person who has not studied the radiography. The OP was, therefore, negligent in not getting the bone fractures identified from the Radiographer and not obtaining any report from the Radiographer, in this respect.
19. The contention of the OP is that the report of the Image Intensifier and other reports used to be stapled by him with the treatment record. According to him, the OP could not produce the reports of Image Intensifier because the same was handed over to the complainants when demanded by them. In this respect, the OP produced a writing vide which the original X-ray films and reports, ultrasound scan reports and films, CT scan report and films and MRI scan & report were handed over to Sandeep Kaur and her maternal uncle Surinder Singh. The complainants have denied if any such record was given to them by the OP or the said receipt bears their signatures. These signatures were got examined from hand writing expert who reported vide Annexure C64 that it was a forgery. The matter was also reported to the police and a criminal case was registered against the OP and Challan Ex.C65 was submitted before the learned Judicial Magistrate. Efforts were made by the OP and the Police to get the case cancelled but the same did not succeed. The learned Magistrate as per the order Ex.CX3 was of the view that prima facie, a case under Section 336, 465, 468, 471 IPC was made out against the OP and a charge was, accordingly, framed against him. This contention of the OP that the documents were handed over to the complainant vide this receipt is, therefore, falsified.
41. A perusal of the said findings is based on the impression that there were no records produced with regard to the treatment or examination of the injuries through an Image Intensifier. This was in the context of the allegation that no fresh X-ray had been taken before starting the treatment, but the contention of the appellant was that the injury had been scanned under the Image Intensifier and therefore there was no need for X-ray. The State Commission disbelieved this contention on the ground that no record had been produced and a false story had been set up by the appellant. Not only this, it was also recorded that the appellant OP could not produce the reports of the Image Intensifier and then the defence that it was handed over the complainant was also incorrect as no such document was produced to substantiate the same. The findings have been concluded by recording that the appellant OP had produced a writing with the signature of the complainant and her uncle having received the same that was denied by them. They then went on to indicate that the signatures were got examined from the hand writing expert, who indicated that it appeared to be a forgery and consequently the matter was referred to the police and a criminal case was registered.
42. It is this criminal case about which the extracts have been reproduced hereinabove. Reference be had to the extract of paragraph 34 of the order of the Trial Court dated 30.01.2020 that has been reproduced hereinabove clearly recording that the prosecution has failed to prove any such forgery. Then in paragraph 48 of the order of the Trial Court, this finding has been recorded that the CR machine (Image Intensifier machine) had been utilized. In the given circumstances, to say that the reports of the Image Intensifier machine had not been given may not be correct and the findings by the State Commission that no process of X-ray was done becomes doubtful and vulnerable.
43. The impugned order in paragraph 21 records about the opinion of Dr. Malcom Smith from USA that was sought by Mr. Kultar Singh. The State Commission came to the conclusion that the said documents were not in the list of documents as prepared by the appellant and therefore it cannot be said to have been handed over by him. The conclusion drawn is that the complainant had not utilized any Image Intensifier before proceeding with the treatment and therefore this deficiency in service is proved beyond doubt.
44. However the State Commission proceeds further to record its findings in paragraphs 20 and 21 of the impugned order as follows:
20. Sandeep Kaur complainant rather filed a consumer complaint against the OP, copy of which is Ex.C15 alleging that they demanded the copies of the record from the OP but he has refused to give the same. It is true that the said complaint was dismissed by the learned District Forum vide order OP4 (also Ex.PW/7) against which the complainant filed an appeal. Vide a separate order, we are allowing the appeal and the complainant holding that the OP was deficient and did not supply the copies of record to the complainant.
21. The learned counsel for the appellant has also referred to the letter Ex.C12, vide which, Kultar Singh complainant wrote to Dr. Malcom Smith, M.D. Partners Associate Chief of Orthopaedic Trauma Services, Massachusetts General Hospital, Boston (USA) seeking opinion about the treatment of Sandeep Kaur. The learned counsel referred to the enclosures sent by Kultar Singh with the said letter and, therefore, contended that these had been handed over to him by the OPs. When we peruse the said letter, we find that none of the documents relates to the treatment given by the OP or the tests allegedly carried out by him. The first document is the brief history of the accident case, it was evidently prepared by Kultar Singh himself and not by the OP. The second is the compact disc, it is not the case of the OP if any such disc was prepared by him and, therefore, this document also was not provided by the OP nor is it mentioned in the receipt fabricated by him. The third document is the photocopies of initial X-ray (2 numbers). These, X-rays were conducted at Civil Hospital, Pathankot and not by the OP, these were with the complainants and had been produced before the OP who had started the treatment on its basis. 4th document is the copy of nerve conduction report done on 19.4.2004. This document also does not find mention in the list of documents prepared by the OP having been handed over to the complainants. Sandeep Kaur complainant had already been discharged from the OP hospital on 7.10.2003 and the documents mentioned at Serial No.4, 5 and 6 were not prepared during the treatment of Sandeep Kaur in the OP Hospital. These documents, therefore, cannot be said to have come in existence during her treatment given by the OP and, therefore, cannot be said to have been given by the OP. It, therefore, shows that even as per this receipt the OPs have not given any document of treatment to the complainant and his stand that the copies of images from the Image Intensifier were given to the complainant is a false story. There is no mention in the said list if any such copies of images or the reports based thereon were handed over to the complainant. It leads us to the only conclusion that the complainant had not been viewing the injuries under the Image Intensifier as claimed by him and he was proceeding with the treatment without any feed back which is contrary to the standard medical procedure. The deficiency in service on the part of the OP, in this respect, is, therefore, proved beyond doubt.
45. Coming to the issue of the traction being applied and the noticing of the fracture of the left pelvic region and sacral bone, the State Commission recorded its findings in paragraphs 22 to 26 as follow:
22. The learned counsel for the complainant referred to Ex.C1 which is the report of the X-ray issued by the Civil Hospital, Pathankot. At Serial No.2, is mentioned, large lacerated wound on the left heel encircling around it except at the dorsal surface, it was crushed. The injury at Serial No.4 is an abrasion on the right lumber region. After the x-ray was taken, it was the injury on the right hip joint which alone was detected by them and not the fracture of the left pelvis. The treatment given by the hospital authorities further is that traction was advised on the right leg only. It was this record which was shown to the OPs. Admittedly, the OPs did not take any fresh X-ray to examine if there was any injury on the left side pelvic also. The contention of the complainant is that basing his treatment on the clumsy X-ray report conducted by the Civil Hospital, Pathankot, the OP applied skin traction only on the right leg. The OP has denied this fact and contended that the traction was applied on both the legs. He has deposed so in his own affidavit and the statement before the Commission and also produced the affidavit Ex.RW/2 of Dr.Sanjay Mittal who claims to have visited the OP hospital and deposed that the skin traction was given on both lower limbs. When we peruse the treatment record, there is no mention if the traction was given on both the legs. The reason given by the OPs is that if the traction was to be given on both the legs, then, no reference of right or left leg is to be made whereas these legs are to be specifically mentioned if the traction is to be given only on one leg. When we peruse the affidavit of Dr. Sanjay Mittal who claimed to have examined the injured on 24.8.2003, he mentioned in his affidavit Ex. RW/2 that it was bilateral traction. Dr.R.P.S.Boparai in his opinion Ex. R12 and his statement before this Commission also referred to bilateral traction. It means if traction is to be given on both the legs, then it has to be mentioned as bilateral traction but even that much was not mentioned by the OP in the treatment record. There is overwhelming evidence, in this respect, that the traction was given only on the right leg. Besides the affidavits of complainant Sandeep Kaur and Kultar Singh, we may refer to the affidavits Ex A38 of Joginder Pal Singh, Ex.A39 of Surinder Singh, Ex.A40 of Gurdvinder Singh, Ex.A41 of Gurmit Singh, Ex. A42 of Mohinder Kaur, Ex.A43 of Surjit Kaur, Ex.A44 of Kuljeet Kaur, Ex.A45 of Davinder Kaur, Ex. A46 of Amarjit Kaur, Ex.A47 of Jagjit Kaur, Ex.A48 of Manjit Kaur, Ex.A49 of Kirpal Singh, Ex Aso of Kulwinder Pal Singh, Ex.A51 of Harminder Pal Singh, Ex.A52 of Rachpal Singh, Ex A53 of Inderjit Singh, Ex.A54 of Rajinder Kumar Sharma, Ex.A55 of Kamalinder Singh Walia, Ex.A56 of Neena Walia, Ex. A56A of Jaswant Singh and Ex.A56B of Harbhajan Singh who had been visiting the injured complainant in the OP hospital and noticed that the traction was given only on her right leg. The record produced by the OP does not show if the traction was given on both the legs i.e if it was bilateral traction. It all shows that the OP is telling a lie in this respect and the traction was given only on the right leg.
23. Further, a perusal of Ex. C1 shows that the doctors of Civil Hospital. Pathankot ordered traction of the right leg only. Had they noticed the fracture of left pubic ramus and sacral bone, there is no reason why the traction on the left leg also would not have been advised. In any case, one taing is clear that no traction on the left leg was advised by the doctors at Civil Hospital, Pathankot which shows that they did not notice the said injuries on the left pubic ramus and left sacral bone. This record along with skiagram Ex.C2 was handed over to. Dr. Kulwant Singh OP who admitted this fact in his cross-examination and further admitted that he started the treatment of Sandeep Kaur on its basis and on the basis of the scanning done by him through Image Intensifier. The record about Image Intensifier or the scanning done under it is not in sight. It is, therefore, clear that the OP started his treatment on the basis of Ex. C1 only and skin traction of right leg alone was applied by him. Otherwise also, the skin traction on the left side could not have been given because there was extensive Hematoma left buttock, left thigh, extensive abraded contusion all over the area and large lacerated wound on the left heel which was crushed as mentioned in the cross-examination of Dr. Kulwant Singh OP conducted on 18.4.2007. Inspite of exercising an ordinary degree of professional skill and competence in getting fresh x-ray and report of the Radiologist about the injury and thereafter, to start the treatment, the OP started the treatment on the basis of clumsy report received from the Civil Hospital, Pathankot and, therefore, the conduct of the OP fell below the standards of a reasonably competent medical practitioner.
24. The circumstantial evidence also proves this fact. If the traction was given on both the legs, the OP would have mentioned the same in his record. If not two legs, at least bilateral traction would have been mentioned but there is no such fact supporting him. Further, if the traction was given on both the legs, then, the question of the left pelvic bone protruding upwards would not have been there. The explanation given by the OP as to why the left pelvic bone protruded upward instead of being in alignment with the right pelvic bone is not acceptable. There is also no plausible explanation as to why there is non-union of the bone even though the injured had remained in the hospital of the OP for more than 7 weeks. There is no evidence produced by the OP to suggest if there could be no better treatment in other hospital than the one given by him or we say it otherwise that the result of treatment in every hospital would have been the same as is now. The deficiency in service on the part of the OP, in this respect, is, therefore, proved beyond doubt.
25. The learned counsel for the OP has also referred to the affidavit Ex.RW/2 of Dr.Sanjay Mittal who claims to have examined Sandeep Kaur on 24.8.2003 at 1.30 p.m.. It was he who reported that she was on bilateral traction of legs. The contention of the learned counsel for the complainant is that in fact he has given a false affidavit because of his close relationship with the OP, both being in the same profession. It is contended that the entry dated 24.8.2003 made in the treatment record is an afterthought and forgery. The receipt for Rs.300/- as visiting charges by Nephrologist was issued on 22.8.2003. There is no receipt to suggest if any such charges for the visit of Dr.Sanjay Mittal were levied on the complainant for 24.8.2003. However, while forging the record in this respect, the OPs forgot that they have prepared two different daily charts dated 24.8.2003 giving different treatment which are at pages 86 and 87 of the file giving different pulse rate and different BP at 9.00 a.m. on that day. It is, therefore, a clear manipulation of record. It shows that Dr. Sanjay Mittal never visited the complainant and has been falsely introduced as a witness.
26. The contention of the OP is that the skin traction was applied on both legs. His contention is that the skin traction was on when Sandeep Kaur was discharged by him from his hospital. The OP did not mention in the discharge certificate (at page 45 of the documents attached with the written reply) as to whether there was skin traction on and if so, when the same would be removed. She has visited the OP for follow up again but no mention is made whether she was having skin traction or not. There is no mention in the record when and by whom the skin traction was removed.
If the skin traction was removed after discharge, the OP did not raise any objection against it. The learned counsel for the complainant has argued that in fact, skin traction had been removed before she was discharged from the hospital and the contention of the OP that it was still on is wrong.
As regards the back pain, she was told that it is due to dead muscles which would be alright by exercises in a few days. For that purpose, pain killers and powerjesic gel was prescribed. The OP was, therefore, negligent in this respect also whether the traction was removed at the time of discharge or she was discharged from the hospital when the traction was still there. Further not mentioning in the discharge certificate as to when the traction was to be removed or when the same was actually removed is also deficiency in service on their part.
46. The State Commission then expressed its doubt about the treatment given which is recorded in paragraph 27 extracted hereinunder:
27. The first X-ray regarding the injuries is Ex.C2 dated 18.8.2003. Thereafter, is the report Ex.Ca dated 9.9.2003, Ex.C4 dated 5.9.2003 and the skiagram Ex.C5 and the report dated 9.2.2004 is Ex.C6. When we peruse the result of treatment from 18.8.2003 to 9.2.2004, it is clear from these reports and the skiagrams that the condition of the injured was going from bad to worse. There was no improvement in the union of bones nor any relief from pain she had been suffering pain throughout the period from 18.8.2003 to 9.2.2004. A period of 25 weeks had lapsed, even as per Dr.H.S.Sohal (Ex.R6 & RW/6), the injured needed only 12 weeks rest in bed and the fractures might have united between 8 to 12 weeks of its own. It shows that something was wrong in the treatment, due to which, even after 7 weeks as indoor patient in the hospital of the OP and 18 weeks thereafter, there was no union or healing of the bones. In fact, the treatment started on wrong lines and 7 weeks indoor stay in the OP hospital made the condition of Sandeep Kaur worse to the extent that not only 18 weeks thereafter, it could not have healed properly throughout her life.
47. The defence set up that the complainant had unnecessarily put weight on her leg after discharge from the hospital was also discarded as recorded in paragraphs 28, 30 and 38 which are extracted hereinunder:
28. The contention of the OP is that after her discharge from their hospital, the injured had been putting weight on her legs, due to which, there was upward displacement of the left pelvis and non-union of the bones. As against it, the learned counsel for the complainant argued that the injured was unable to move; she was suffering from pain and in the follow up on 18.10.2003 and 20.11.2003, the OP was prescribing pain killers and powerjesic gels showing that the complainant was suffering from pain and was unable to walk. The OP has now fabricated this story that she had started walking, due to which, the condition deteriorated. Till 20.11.2003, when the injured visited the OP, more than 13 weeks had already passed and in view of the evidence of Dr.H.S.Sohal produced by the OP as Ex.R6, the bone would have automatically united but it did not. It was, therefore, only due to the wrong treatment that the bone did not unite and there is upward displacement of the left pelvic bone and not due to the complainant putting any load on her legs.
30. The main allegation of the OP is that the complainant had put weight on her legs, due to which, there was mal-union or non-union of the joint. It is not his case if the bone had properly joined at its proper place when she was discharged from the hospital by him nor is any report/record to prove the same. It is also not his case if due to putting of weight, there was refracture of bones at that very place where a fracture had earlier occurred due to accident on 18.8.2003 and it was due to that reason that non-union or mal-union existed. In the X-rays conducted, subsequently, it was not mentioned that there was re-fracture at the place or the bones had earlier joined and, thereafter, there was re-fracture at that very joint. The reports have rather suggested that it was an old fracture. The contention of the OP that the problem occurred due to the complainant putting weight is, therefore, ruled out.
38. The complainant was discharged by the OP on 7.10.2003. According to him, she was discharged in good satisfactory condition.
There is no mention in the discharge certificate as to what precautions the complainant was to take, There is no mention if she was suggested not to put weight on her legs or she was to continue with traction and if so, for how long. When the patient is discharged, it is the duty of the Doctor/Hospital to prescribe precautions to be observed by the patient but in the present case, no such precautions were prescribed. Even if it is presumed for the sake of arguments, though it is denied by the complainant that she put weight on her legs, it was negligence on the part of the OP who did not advise the complainant properly in this respect. There is deficiency in service on the part of the OP in this respect also.
48. The State Commission also discussed the probabilities on the basis of an inference that the appellants never disclosed any fact about the deformities as per the findings recorded in paragraph 29 extracted hereinunder:
29. It is also argued by the learned counsel for the OP that the complainant Sandeep Kaur admitted in her cross-examination that in March, 2004, she appeared in her paper of 4th Semester and for this purpose, she was taken to the Examination Centre by her father in the car which used to be parked at a little distance from the Examination hall where necessary arrangement of taking the exam was made for her. She admitted that she used to walk to the Examination Hall with the help of walker. She denied if it was because of walking that she suffered displacement. She also admitted that thereafter, she gave driving test for obtaining a driving licence in August, 2004 and denied if the body weight was put on the pelvic while giving the driving test for issuance of driving licence. A perusal of the stand taken by the OP itself falsifies the truth therein. The skiagram Ex.C5 and the X-ray report Ex.C6 taken on 9.2.2004 itself show the upward displacement of left pelvic side in the region of S1 joint and non-union of bones. Steps taken by her, subsequently, could not have been the reason for the condition she was facing. In this manner, when even before February, 2004, the condition of the complainant had deteriorated, the subsequent events in March or August, 2004 were of no consequence for the said displacement and non-union. Moreover, if according to Dr.H.S.Sohal, the bone would have united within 8 to 12 weeks, the taking of tests in March, 2004, 28 weeks later or giving of driving test 52 weeks later would not have any adverse affect on her treatment. The OP is now finding faults with the complainant instead of realising his own negligence: Otherwise also, Sandeep Kaur came to the OP on 18.10.2003, 20.11.2003 and 25.12.2003, the OP never disclosed if there was any mal-union or non-union of bones or the left pelvic bone was protruding upwards. It shows that the problem was already there but the OP was not disclosing it to the complainant. He was gaining time, he did not refer her to any other hospital so that the said blunder does not come to notice. He is now making a false excuse by taking benefit of delay which he himself had caused.
49. While considering the evidence of Dr. R.P.S. Boparai, who had opined that there was no negligence on the part of the appellants, the State Commission recorded that it is on the said basis that the Assistant Commissioner of Police had sent a report (cancellation report) for closing the criminal case, but the same was not accepted by the learned Magistrate and instead charges were framed against the appellants. The State Commission further held that the sending of the documents by the Assistant Commissioner of Police is an incorrect fact, in as much as, according to the statement of Dr. Boparai in his cross-examination it was evident that all the documents that were available with the police were not even provided to Dr. Boparai and consequently, a story had been concocted on the basis whereof the report was obtained from Dr. Boparai to somehow or the other to help the appellants. The State Commission therefore came to the conclusion that since the chargesheet had been filed in the criminal case, the report of Dr. Boparai cannot be believed for the purpose of absolving the appellants of negligence. Paragraphs 31 to 33 of the impugned order of the State Commission are extracted hereinunder:
31. The learned counsel for the OP referred to the opinion of Dr.R.P.S.Boparai (Ex.R12), Professor and Head of the Department of Orthopaedics, Government Medical College, Amritsar. It is argued that he fully investigated the case with X-rays, ultrasound, scanning and MRI of the pelvis and opined that conservative treatment in the form of bilateral skin traction and medicines was standard treatment given to the complainant; that good care was taken of the patient by the OP and there is no likelihood of much permanent disability in such cases. He also opined that there is no negligence on the part of the Orthopaedics Surgeon Dr. Kulwant Singh from the medical and technical point of view. However, minor residual disability, if any, could be the result of multiple fractures sustained by her during the accident which is normal in due course of nature.
32. The contention of Dr.R.P.S.Boparai is that the complainant was fully investigated with X-rays, Ultrasound sean and MRI scan of the pelvis/c which helped in arriving at the diagnosis. He did not mention the date of X-rays, ultrasound or scanning or number thereof. The learned counsel for the complainant argued that it was intentionally omitted because Dr. Boparai had not perused any such X-rays, ultrasound scanning and MRI scanning of the complainant. In his cross-examination, Dr. Boparai deposed that he received the letter along with record from the Assistant Commissioner of Police, Model Town, Jalandhar for his medical opinion by registered post. He gave his opinion regarding X-rays of LS spine and pelvis because it was the part of the file which he examined. This file was taken by the official after he recorded his opinion. The Commission then summoned the Assistant Commissioner of Police, Model Town, Jalandhar, according to him, he conducted an enquiry on the basis of the report submitted by Dr.Boparai and submitted the cancellation report Ex.R10 to the Police Commissioner, Jalandhar who sent it to the SHO concerned. A report (under Section 173 (8) Cr.P.C.) was, subsequently, submitted before the learned Magistrate but the cancellation report was not accepted and, as mentioned earlier, the charge was framed against the OP vide Ex.CX/3.
33. According to the Assistant Commissioner of Police, the documents which were sent by him to Dr.Boparai for his opinion were attached by him with the cancellation report which was forwarded to the Commissioner. After the approval of the Commissioner, these documents were submitted through SHO to the Court concerned. He further admitted that the documents which are part of the cancellation report were the only documents sent by him to Dr. Boparai and no other documents. However, when the complainant applied for copy of the record from the Court concerned, it was reported on his application Ex.C66 that no such record has been submitted to the Magistrate along with the cancellation report. The report Ex. R10 of the Assistant Commissioner of Police also does not show if any X-ray ski-gram, CT scan or MRI scans were attached with the said report. Further, according to the Assistant Commissioner of Police, the documents were sent by the police to the Head of the Department/Administrator(Orthopaedic), Government Medical College and Hospital, Amritsar vide Ex.CX12. On the other hand, Dr. Boparai in his cross-examination deposed that the letter along with the file was sent to him by the Assistant Commissioner of Police, Model Town, Jalandhar. His statement, therefore, belies if the documents were sent to the Head of the Department/Administrator and not to Dr.Boparai directly. It all shows that neither there were any documents with the police nor the same were provided to Dr. Boparai as claimed by him in his report nor the same were returned by him to the police nor these were submitted further to the Court. They have just concocted a false story to obtain this report Ex.R12 from Dr.Boparai to help the OP and submitted a cancellation report (under Section 173(8) Cr.P.C.) to the police. The Magistrate considered this report but did not find any merit in it and framed a charge against the OP. The OP filed a revision petition against the same but the said revision petition has since been dismissed by the learned Sessions Judge vide his order dated 1.10.2011, a copy of which has been attached with the written arguments which was not disputed by the OP. The report of Dr. Boparai having not been based on any record, therefore, cannot be accepted to conclude that proper treatment was given to the complainant.
50. Coming to the issue of the Disability Certificate and the possession of Driving Licences by the complainant, the State Commission concluded that even a handicapped person can drive a vehicle after quoting Section 9(3) Clause (b) of the Motor Vehicles Act, 1988. The State Commission also took notice of the fact of the complaint having been filed against Sandeep Kaur where the police had registered an FIR of having obtained a false disability report. The State Commission recorded the findings in paragraph 35 to 37 of its order that are extracted hereinunder:
35. The learned counsel for the OP then argued that the complainant Sandeep Kaur had appeared for driving licence and was issued a driving licence holding that she was not suffering from any disability to drive a vehicle. It is argued that the doctor issued a certificate having personally examined Sandeep Kaur and found that the condition of arms, legs, hands and joints of both extremities of the candidate and she was medically fit to hold a driving licence. On its basis, the licence was issued to her which shows that the certificate Ex. C63 showing that she was having disability of 45% permanent, was, therefore, a procured one and should not be relied upon. It is argued that application for driving licence proves that there was no deficiency in service on the part of the OP and she had cured well.
36. We do not find any merit in this argument. Whether Sandeep Kaur has been cured well or not has been discussed above and is proved from the X-rays reports and MRI report. The OP has not produced any subsequent reports to suggest if the defects noticed in those reports had been cured. The OP did not even produce the affidavit of the doctor who issued the certificate to Sandeep Kaur that she was able to drive the vehicle to clarify as to in case of what disability a person cannot be issued such a certificate and therefore, cannot get a driving licence. As regards obtaining of driving licence, even a handicapped person can drive the vehicle. All that the applicant is to satisfy under Clause (b) of Sub Section (3) of Section 9 of the Motor Vehicles Act is that he/she may not be suffering from any disability which is likely to cause his/her driving to be a source of danger to the public. The mere fact that the complainant applied for a driving licence or obtained the same neither proves that there was disability of the type mentioned in the reports referred to above or that the OP was not negligent in rendering proper service.
37. When the OP came to know that Sandeep Kaur had applied for a driving licence and has obtained the report of the Doctor on the application for driving licence to the effect that she was competent to drive a vehicle, he filed a complaint against her alleging that on the one hand, she was claiming to be fit to drive the vehicle and, on the other, she has obtained a medical certificate from the Civil Surgeon, Gurdaspur reporting that she was permanently handicapped to the extent of 45%, she was, therefore, guilty of an offence under Sections 420, 467, 468, 471 IPC. The police without obtaining any expert advice about the culpable liability of Sandeep Kaur as to whether a person who is 45% handicap, due to the pelvic injuries is competent to drive a vehicle or not, were quick enough to lodge FIR Ex.R12 against her. The learned counsel for the OP wants us to presume that her earlier reports regarding 45% disability is a false report and that she is hale and hearty and enjoying her life properly. We do not find any merit in this argument. The OP has not produced any such evidence to suggest that a person 45% disabled due to pelvic injuries is unable to drive a vehicle. Further there is no evidence X-ray, CT scan or MRI report if there are no pelvic injuries on the body of Sandeep Kaur or if there is no upward protrusion and non-union of pelvic bone as mentioned in different reports referred to above. The OPs rather admit these problems but say that these were due to putting weight on her legs by Sandeep Kaur complainant. The OPs have nowhere made their stand clear whether there is no such disability in her and whether such a disability existed when she was discharged on 7.10.2003. There is no mention whether there was such disability when she visited him on 18.10.2003, 25.11.2003 and 25.12.2003. In fact, the OP in order to put pressure on the complainant is resorting to dubious means and is fully assisted in this respect by the police which were ready to register a case even without examining whether any cognizable offence is made out or not. We are, therefore, of the opinion that obtaining a driving licence or the registration of FIR Ex. R12 is not going to help the OP and on its basis, it cannot be said if there is no medical negligence on his part.
51. The State Commission then went on to analyze the impact of the orders passed by the Medical Council of India and it was observed as follows in paragraph 39:
39. The learned counsel for the OP has also argued that the complainant had moved a complaint to the MCI (Medical Council of India), Punjab which after enquiry held that there was no negligence on his part. His contention is that in view of this report which amounts to expert evidence, no action can be taken against him. This argument also is devoid of merit. We have gone through the report of the Disciplinary Committee and that of the MCI from which it is clear that out of 23 complaints against different doctors, the action was taken only in two cases and in those two also, only warning was issued to the doctor. The learned counsel for the complainant argued that in fact, the Medical Council is constituted on the basis of voting by the doctors including the OP and, therefore, the office bearers of MCI who are elected with the help of votes cast by the doctors who are medically negligent is not going to take action against them. It is argued that the Member of the Council would always have the next election in mind because if strict action is taken by him against the doctor, his chances of winning the election for the next tenure would be bleak. Further more, in the report submitted by the Medical Council, no details have been given, no reasons have been given to exonerate the doctor and, therefore, such a sketchy report which is not a speaking one, cannot be taken as a piece of evidence to help the OP.
52. We may point out that the sanctity of the report of the Medical Council has been discussed by the Apex Court in the case of Harnek Singh & Ors. vs. Gurmit Singh & Ors., (2022) 7 SCC 685, paragraph 34, which is extracted hereinunder:
34. So far as present proceedings are concerned, as they arise out of a claim for compensation on the basis of medical negligence, the opinion and findings of MCI regarding the professional conduct of Respondent 1 have great relevance. The findings of the Medical Council, which is a statutory regulator have been extracted hereinabove, may be formulated as under:
xxx
53. The State Commission then concluded by holding that the appellant did not adopt the proper approach to the treatment of the complainant and he proceeded with the treatment without obtaining any opinion from the Radiologist or conducting a proper X-ray examination before the commencement of the treatment. It was also held that the monitoring of the progress also ought to have been retained and recorded, but the same was also not done and instead the appellant himself claimed to have studied the injuries by scanning the same to an Image Intensifier. This approach was believed to be incorrect as there were no documents to support the said conclusion. Consequently, no reasonable care was adopted and the patient suffered a lifelong crippling feature. Consequently, medical negligence was proved and the complaint was allowed. Paragraphs 40 and 41 of the impugned order is extracted hereinunder:
40. After leaving the OP hospital, the complainant had been running from pillar to post under the hope that they would get the treatment to put the bone on right track of healing. The complainant, however, has not been able to find any hope so far. They have produced a list of doctors and institutions which were contacted/visited by them for the treatment. The prominent among those are PGI, Chandigarh, DMC and Hospital, Ludhiana, Dr.Hardas Singh Sandhu, Ex-Professor and Head of Department, Orthopaedics, CMC, Ludhiana, Dr. Yogesh Gulati, Civil Surgeon, Senior Consultant, Spine Surgery, Apollo Hospital, Delhi, Dr.G.S.Tucker, Orthopaedic Surgeon, Batra Hospital, Delhi, All India Institute of Medical Sciences, Delhi, Baraham Chikitsalaya, Haridwar (U.P.), Dr.Malcom Smith, M.D. Partners Associate Chief of Orthopaedic Trauma Services, Massachusetts General Hospital, Boston (USA) and others. So far the complainant has not been able to see a ray of hope for improvement in the condition of Sandeep Kaur. It was not a case which should have resulted in the manner it did. And if it was so complicated that OPs were unable to set it right, they should have referred her to some Super Speciality Hospital for surgical intervention. Viewed from any angle, the negligence of OP is writ large.
41. In fact, this all occurred due to the reason that Dr. Kulwant Singh OP did not adopt the established and proper approach to the treatment of the complainant. He should have first got conducted X-ray examination and should have obtained opinion thereon from the Radiologist before starting the treatment. It was required of Dr. Kulwant Singh OP that he monitored the progress of treatment periodically through X-ray, CT Scan or MRI and should have retained the result or would have mentioned the same in his treatment record. Needless to mention that Dr.Kulwant Singh is not a Radiologist and it was necessary for him to obtain the opinion of some Radiologist to study the skiagram or the image of Image Intensifier. Instead of obtaining the opinion, he claims to have himself studied the injuries by scanning the same through an Image Intensifier which appears to be not only wrong approach but appears to be a false story. It was expected of Dr. Kulwant Singh OP that if he was unable to treat the complainant even after a lapse of 7 weeks, he should have told this fact to the complainants and should have referred her to some Super Speciality Hospital but he continued with the treatment either to conceal his drawbacks or to earn unnecessary fees from them. It may have been easy at the earlier stages to set the bones right even by surgical intervention. While discharging Sandeep Kaur, specific instructions should have been given on the discharge certificate where also he was lacking. The OP, therefore, did not adopt a reasonable care either in the treatment of the complainant or in monitoring the progress of the treatment or while discharging her. He, therefore, converted a youthful girl into a cripple who is 45% handicapped. On the other hand, the complainant was dragged into criminal litigation for the sole purpose of putting pressure on her to withdraw the complaint. The OP, therefore, committed these defaults which no medical professional in the ordinary sense and prudence would have done. On the other hand, he failed to take appropriate steps as referred to above which again no medical professional in his ordinary senses and prudence would not have failed to do. His conduct, therefore, fell below that of the standards of a reasonably competent practitioner in his field. In view of the cases Kusum Sharma and others and Jacob Mathew, cited by the learned counsel for the OPs, the complainants have succeeded in proving that the OPs were guilty of medical negligence and deficiency in service.
54. While awarding compensation, the quantum has been discussed, keeping in view the Disability Certificate of the complainant and her future prospects in life, and the award has been made in the following manner:
43. A youthful girl of 20 years who is yet to enter her charming world has been converted into a cripple due to the medical negligence of the OP who failed to give proper treatment to her. Needless to mention that due to the disability and reduction of her left leg by 1.5 inches, she stands in the list of physically challenged persons. The contention of the complainants is that due to this reason, she feels humiliated and has developed suicidal tendencies. Her employment and matrimonial prospectus have certainly become limited and the disability would affect the enjoyment in life. Due to her limited activity, the life span of a person decreases. She has to depend upon the attendant which not only slows the pace of life but also requires monetary expenses. The loss which she has suffered due to this trauma which reduced her chances to settle in life cannot be measured in money, we, however, are of the opinion that a sum of Rs. Ten Lakhs would be just and proper.
44. It is not only the monetary loss and prospectus of losing employment and enjoyment in life which is lost but all the three complainants have suffered mentally and physically during this period of more than 8 years. They have not only been running after the doctors for her treatment but have been pursuing the cases and tried to defend themselves from the OP who was helped by the police in first giving a cancellation report in the case registered against him and thereafter, lodging a criminal case against the complainant regarding forgery and cheating. We are, therefore, of the opinion that for this mental and physical harassment, the complainants are entitled to Rs. Five Lakhs as compensation.
45. In view of the above discussion, we are of the opinion that the present complaint succeeds. The same is, accordingly, allowed with costs. The OPs are directed to pay to the complainant a sum of Rs.18.45.437/-within a period of 30 days from the date of receipt of a copy of the order, failing which, the amount would be liable to be paid along with interest @ 9% per annum since the filing of the present complaint i.e. 17.2.2006 till the amount is actually paid to the complainants. The OP would also be liable to pay Rs.20,000/- as costs of litigation.
55. The aforesaid findings recorded by the State Commission have been considered by us and we have also perused the voluminous record of the State Commission that has been filed on record by the appellant through an additional affidavit on 07.11.2013 filed vide a Diary No. 22510. On a comparison of the findings recorded by the learned Magistrate in the criminal proceedings and that by the State Commission some of the issues at the outset can be clarified without much ado.
56. The first is with regard to the documents that are stated to have been handed over to the complainants on the basis of which the appellants contend that the original X-ray films, reports, ultrasound scan reports and films, CT scan reports and films and the MRI scan and reports were handed over to the maternal uncle of the patient Mr. Surender Singh. The complainants had denied having received this record and denied the signature on the receipt regarding the same. The State Commission relied on the report of a handwriting expert on the basis whereof the matter was reported to the police and the FIR was lodged giving rise to the criminal prosecution referred to above. This finding is recorded in paragraph 19 of the impugned order of the State Commission already extracted hereinabove. The State Commission therefore concluded that since charges had been framed in the criminal case, therefore the contention of the appellants that the documents had been handed over to the complainants through the said receipt was false.
57. On the other hand, this very aspect was examined by the Court of the learned Magistrate who examined the evidence in the criminal trial in the light of the allegations of forgery against the appellant about the signatures of the maternal uncle of the complainant. The Trial Court has acquitted the appellant of the said charge framed under Sections 465, 468 and 471 IPC. Thus, the conclusion and finding of the State Commission on the basis of framing of criminal charges stands dissolved in the background that the criminal prosecution and the findings recorded by the Magistrate stand confirmed upto the Supreme Court. We are therefore of the opinion that the State Commission had relied on adhoc evidence namely only the chargesheet and framing of charges to conclude otherwise. We therefore do not agree with the findings of the State Commission on this count as the very same charges could not be proved on the same set of evidence. The documents therefore pertaining to the treatment of the complainants that were available had been handed over to the maternal uncle Mr. Surender Singh and the allegations that his signatures were forged is unacceptable.
58. We then find that the State Commission has concluded that merely because the complainant had given a driving test and obtained a Driving Licence in August, 2004 could not dislodge the fact that the appellant was negligent in his diagnosis or treatment of the pelvic fracture that had been suffered by the complainant. The State Commission has referred to the said fact in paragraph 29 of the impugned order and then in paragraphs 35 to 37 thereof all of which has been reproduced hereinabove. We find from the record that for the purpose of obtaining the Driving Licence, a medical certificate was produced by the complainant stating that she was fit and healthy to drive vehicles and on the basis thereof the Driving Licence was granted in August, 2004. The said document is not denied nor is the issuance of the Driving Licence contested. We may point out that the nature of the injuries was crushing of the bones in the pelvic region that affected her limbs and the injuries had an impact on the legs of the complainant. Driving a vehicle involves the motor capability of the legs that are supposed to be alert all the time for pressing the pedals of a vehicle. It is not the case of the respondent complainant that she had not undertaken a driving test. To the contrary, the licence has been issued after the respondent complainant cleared the driving test and the licence was admittedly issued in August, 2004. It should not be forgotten that the complainant was discharged from the hospital on 07.10.2003 and it is close to six months that the Driving Licence has been obtained in August, 2004. It is not the case of the respondent complainant that she did not drive any vehicle after the licence was given to her. In the circumstances, it would be reasonable to presume that the complainant was fit to drive a vehicle.
59. The State Commission in paragraph 36 has concluded that even a handicapped person can drive a vehicle. The question is not of a handicapped person driving a vehicle, but that of a person complaining of 45% disability in the limbs lower to the pelvic region, who is claiming to the capable of driving a vehicle. The presumption of the State Commission that even a handicapped person can drive a vehicle is bereft of any reasoning in the background that the State Commission itself had held that the complainant has proved her 45% disability. The presumption of the State Commission is therefore inconsistent with its own conclusions on the disability which has been made the basis for allowing the complaint.
60. In addition thereto, it is an admitted position that the complainant migrated to Australia later on and she had a Driving Licence in Australia as well. The Driving Licence is not of a handicapped person. Consequently, the fact that the respondent complainant was able to drive the vehicle in India with the licence procured in August, 2004 does not match with the status of 45% disability and even otherwise, she was admittedly driving a vehicle with a proper Driving Licence in Australia later on as well. Consequently, the medical fitness of the respondent on this ground could not have been underscored by the State Commission to conclude about the healing status of the injuries of the complainant respondent, who it seems had healed fairly well when the licence was issued in August, 2004 in India and thereafter even in Australia. The disability therefore as claimed by the complainant cannot be said to be that grave so as to believe the certificate of 45% disability.
61. The learned Judicial Magistrate has also delved into this issue regarding the issuance of certificate of 45% disability and in paragraph 35 of the judgment dated 31.01.2020 has disbelieved the percentage of disability by recording clear findings after having scanned the evidence of the doctor and the issuing authority of the certificate. In our opinion, the findings recorded by the learned Magistrate on that count deserves acceptance, moreso when it has specifically further recorded that the certificate had not been issued as per the guidelines issued by the Ministry of Social Justice and Empowerment, Government of India dated 13.06.2001. It has been concluded by the learned Magistrate that keeping in view the extent of shortening of the leg of the complainant, the disability certificate could not have recorded more than 4% of the disability. It was therefore held that 45% disability cannot be accepted. On an analysis and comparison of the conclusions based on evidence arrived at by the State Commission in the impugned order, as well as that of the Magistrate in the criminal prosecution, we are inclined to accept the reasoning eluded to by the learned Magistrate in the criminal case which is based on appreciation of evidence and the assessment of the statutory guidelines. The State Commission has nowhere examined it in the light of above and has presumed that a disabled person can also drive a vehicle to accept the version of the complainant. The findings of the State Commission in the impugned order therefore are liable to be rejected on this score.
62. We are further supported in this conclusion by the fact that the learned Magistrate has recorded in paragraphs 36 and 37 of its judgment quoted hereinabove that the complainant had been called upon to appear before a Medical Board, but the complainant specifically refused to do so. This further confirms the fact that the findings recorded by the learned Magistrate are convincing on this score and are acceptable.
63. We then come to the opinion of Dr.Boparai that has been discussed by the learned Magistrate in his judgment in paragraph 40 to support his findings regarding an expert evidence. The State Commission has however on the same subject dealt with the matter in paragraphs 31 to 33 of the impugned order to hold that from the cross-examination of Dr. Boparai and the statement of the Assistant Commissioner of Police, it was established that all the documents that have been referred to in the report of Dr. Boparai had not been sent. It was also observed by the State Commission that he had not mentioned the date of the X-ray or the ultrasound or the scanning etc. It was therefore held by the State Commission that the file which had been sent by the Assistant Commissioner of Police statedly along with all the documents referred by Dr. Boparai in his report has not been seen by him. For this, the State Commission has inferred that Dr. Boparai had stated about sending of the file along with his letter, but the complainants had applied for a copy of the sending of the said letter along with the details of the record, on which a report was endorsed that no such record had been submitted by the Assistant Commissioner of Police before the Magistrate. The State Commission has mixed up the transmission of the file by the Assistant Commissioner of Police to the learned Magistrate with the transmission of the file by the Assistant Commissioner of Police to Dr. Boparai, in as much as, for that the State Commission has concluded that the documents were sent to the Head of Department / Administrator and not to Dr. Boparai directly. This reasoning of the State Commission cannot be accepted for the simple reason that it is Dr. Boparai, who is the Head of Department of Orthopedics and Dr. Boparai as Head of the Department has tendered his report to the Assistant Commissioner of Police. The contents of the report were sought to be disbelieved by the State Commission on this alleged inconsistency in the statement regarding the transmission of the medical records along with the letter of the Assistant Commissioner of Police. The State Commission has erroneously treated it to be a false story and to support its conclusion has further again relied on the framing of charges in the criminal case. The State Commission further observed that since the framing of charge was challenged in a Revision Petition by the appellants and the same had been dismissed, therefore the report of Dr. Boparai cannot be accepted. We are unable to support this conclusion once again for the simple reason that a mere framing of charge does not denude the document of the correctness of its contents unless the contents of the said report of Dr. Boparai are dislodged by any evidence to the contrary. The State Commission does not appear to have appropriately assessed the said evidence, in as much as, the criminal prosecution has ultimately resulted in the acquittal and the charges have not been proved that was upheld by the Apex Court. In such circumstances, merely because the chargesheet was entertained for trial was by itself no evidence of any worth to dispute the probative value of the report of Dr. Boparai. The State Commission therefore adopted an erroneous method of discarding the said report, which supports the contention of the complainant. The finding therefore recorded by the State Commission on this count also is unacceptable.
64. We now come to the report of the Punjab Medical Council that has been discarded by the State Commission as recorded in paragraph 39 in the impugned order. As noted above, the opinion of the Medical Council has great relevance as noted by us with reference to the judgement of the Apex court in the case of Harnek Singh & Ors. vs. Gurmit Singh & Ors. (supra). We have however perused the original record that was filed before the State Commission including the original proceedings of the Punjab Medical Council dated 20.09.2009. The said issue pertaining to the evidence against the appellants was examined and at item no. 15, the resolution records "on going through the records submitted by Dr. Kulwant Singh, Committee found the doctor was treating the patient. As per norms and no negligence could be proved against the doctor. Case be filed." The State Commission was swayed away by the fact that since the Medical Council was constituted on the basis of voting by doctors, and therefore the office bearers of the Medical Council are elected with the help of votes casts by doctors, they do not take action against them. We do not agree with this conclusion of the State Commission, but what we find is that the resolution nowhere discusses any details regarding the allegations of medical negligence against the appellant and has exonerated him as recorded simply stating that the patient had been treated as per the norms and no negligence could be proved. We agree with the State Commission that the said report is sketchy, but as indicated above, it cannot be discarded altogether as it is a relevant evidence for consideration as per the law laid down by the Apex Court referred to hereinabove.
65. We now come to the main part of the allegations in the complaint, the first is the absence of any X-ray having been conducted before the treatment began by the appellant at his hospital. It is correct that no X-ray was taken immediately and the patient was proceeded for treatment on the basis of X-ray that had been issued by the Civil Hospital, Pathankot from where the patient had been referred. The said X-ray report only indicated injuries on the right hip joint, but there is no X-ray report with regard to the injury on the left side of the pelvic. The question is that the treatment commenced with the application of traction about which there is a dispute that the traction had not been applied on both the legs and it was only the right leg which was put on traction. In this regard, we may point out that the prescription dated 18.08.2003 which seems to have been recorded at the time of the injuries suffered by the complainants indicates an advice of X-ray of the "left foot" as well as "lumbar spine" including "right hip joint" of the iliac bone. The scanning report of Dr. Rajnish Kant Nagpal indicates that there was evidence of fracture on the left side of the sacral piece, but bilateral hip joint and bilateral iliac bones were reported to be normal. There was a displacement of the left side of the pelvic.
66. While proceeding with the treatment what appears is that the concentration seems to be on the traction that was applied with reference to the right hip joint fracture. Any fresh X-ray could have located the fracture of the left pelvic region, but it was not done. There is no recording of the process and result of the Imaging Intensifier when the patient was admitted and the treatment started. The case set up by the appellant and the evidence led was that the traction was bilateral and therefore no specific reference of the traction was made on either the left side or the right side. There is a dispute about any traction being given on the left side, but at the same time when the matter was examined after the patient was discharged and the scan and X-ray reports were taken, it was found that there was non-union of the bone in the left pelvic region and it was therefore concluded by the State Commission that had traction been given on both the legs, the question of the left pelvic bone protruding upwards would not have been there. This also indicates that even though a line of treatment had been adopted by the appellant, yet there is an absence of recording of the imaging of the left pelvic region and traction being applied on the left leg. The hospital records do not indicate the same even though statements have been made by the appellants during the trial and his witnesses namely Dr. Mittal and Dr. Boparai that there was a bilateral traction.
67. Apart from this, the question of any X-ray having been conducted on the admission of the patient and during the treatment for seven weeks, it was the case of the appellant that an Image Intensifier (CR machine) which is a high level radiological instrument had been utilised to examine the patient. We may record that if that was so, then the evidence of the fracture in the left pelvic bone could have been recorded and treatment for the same would also have been mentioned in the treatment papers. This does not seem to be recorded at the inception and during the seven weeks of the treatment of the complainant.
68. Later on, the treatment extended did result in some improvement and then the patient was ultimately discharged on 07.10.2003. The improvement can be gathered from the fact that after six months, she also procured the Driving Licence as indicated above, but at the same time the discussion made by the State Commission in the respective paragraphs does indicate that so far as the injury on the left pelvic side is concerned, the treatment for the same was not satisfactorily explained. The consequences of upward displacement of the left pelvic side and the non-union of bone coupled with the shortening of the leg indicates that the problem persisted even after the treatment had been conducted by the appellant in the hospital where the patient stayed for a couple of months. The subsequent radiological reports do indicate the same status and we therefore find that to that extent, the appellant does not seem to have exercised his reasonable skill in treating the respondent-complainant to the above location that was due to the initial shortcomings of consulting a Radiologist and the evidence regarding the injury on the left side of the pelvic region that did bring about a deformity in the patient. The conclusion of the State Commission that she was crippled does not seem to be correct, but the fact that she did receive serious injuries that resulted in the shortening of her leg by 11/2 inches is established. To this extent, we find that the conclusion drawn by the State Commission seems to be correct and we therefore hold the appellant to have been deficient in exercising his reasonable skills by not appropriately treating the left pelvic region that was fractured and had resulted in non-union of the bones in that region.
69. We also find that the complainant had undergone a considerable deal of sustained painful experience that obviously cannot be gauged ordinarily. We are reminded of the observations made by this Commission in the case of Ravi Rai Vs. Fortis Healthcare Limited & Ors., CC/479/2017, decided on 24.06.2024, that was a case regarding the surgery on a wrong foot by the Hospital. While allowing the complaint this Commission in paragraph 72 observed as follows:
"72. One has to put oneself in such moments to understand as to what actually would follow when a patient is faced with such agony and trauma. To assess a limping man's pain or the feelings and challenges of a soldier who has lost his leg in a mine blast or the trauma of a gangerine resulting in an amputation, one has to enter into the "Orthopaedic Shoes" of the sufferer, not physically, but emphatically. In the words of Justice Sonia Sotomayor of US supreme court, Empathy shouldn't be confused with sympathy and it shouldn't be confused with bias. It means the ability to walk a mile in somebody else's shoes. That may be the single most important quality going into a court where once you are seated you never walk anywhere in anyone else's shoes. You are exposed to an extremely narrow range of people, you just think and write. The life changing effects and the practical impact forever changing one's life history are the other consequences which cannot be ignored. These consequences that one has to face are not exaggerated or rhetorical.........."
70. The said decision of this Commission was confirmed by the Apex Court while dismissing the Civil Appeal Diary No. 44370/2024 on 02.12.2024, by the following order:
"1. Delay condoned.
2. Heard the learned senior counsel appearing for the appellant.
3. Having considered the matter in detail, we are of the opinion that the National Consumers Disputes Redressal Commission, New Delhi has not committed any error in law or fact. In this view of the matter, the civil appeal is dismissed."
71. We however hold that the appellants had attempted to treat the respondent - complainant to a great extent, which have brought about improvements in her as a result whereof, she could not only drive vehicles, but later on entered into matrimony and was blessed with three children. The complainant settled in Australia with a family long thereafter and in such circumstances, the appellant cannot be blamed for gross negligence so as to indict him of medical negligence and hold him liable for damages to the extent as held by the State Commission. It is also to be noted that there had been no adverse comment against the appellant by any other doctor and it has also been found that the Disability Certificate to the extent of 45% did not inspire confidence.
72. In view of the findings that have been recorded by us hereinabove, we find mitigating circumstances existing to gauge the negligence of the appellant to a reduced extent only in respect of the initial lapses in the treatment of the left pelvic region and therefore we are of the opinion that given the overall circumstances, keeping in view the findings recorded by the competent Court of criminal jurisdiction that has been upheld upto the Apex Court, as also the reasons given by us hereinabove, the quantum of compensation as imposed by the State Commission is not proportionate. We therefore reduce the same by 50% of the decretal amount awarded by the State Commission, in view of what has been stated hereinabove. We therefore partly allow the appeal in terms of the findings recorded hereinabove and accordingly direct that the impugned order, in so far it awards the compensation as indicated therein, shall stand reduced by 50% of the decretal amount awarded by the State Commission. We also record our disagreement with some of the findings of the State Commission as reasoned out hereinabove.
73. Accordingly, we find that the amount already deposited by the appellant under the interim orders of this Commission dated 10.11.2014 which is 50% of the decretal amount is liable to be disbursed to the respondent-complainant.
74. We therefore accordingly direct the Registry that in the event the said decretal amount is still available with this Commission and has not been released as per the order dated 10.11.2014, the same shall be released in the name of the respondent no. 1 to be delivered to any person authorized by her with all the interest accrued thereon.
75. The Appeal is therefore partly allowed.
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