Dr. Sudhir Kumar Jain, Member

Briefly stated relevant facts are that the complainants no.l to 6 in the complaint are legal heirs of Satwant Kaur (hereinafter referred to as "the deceased") being her husband and children. The deceased due to abdominal pain was taken to Dr. Vivek K. Jain (hereinafter referred to as "the opposite party no.l") by her husband i.e. the complainant no 1 and Jagwinder Singh for consultation and treatment. The deceased was diagnosed with stones in gall bladder and the opposite party no.l prescribed surgical operation for removal of gall bladder i.e. cholecystectomy. The deceased was operated on 31.05.2012 in the hospital of the opposite party no 1 and gall bladder was removed but the deceased even after operation continued to vomit. The deceased remained admit in the hospital from 31.05.2012 to 03.06.2012 but the abdominal pain did not subside. The deceased was discharged from hospital on 03.06.2012 despite having vomiting sensation. The medical file and surgical notes pertaining to the deceased were not handed over to the complainant no. 1. The deceased due to deteriorating condition was removed to Astha Hospital (hereinafter referred to as "the opposite party no 3") for treatment where the deceased was subjected to various tests and remained admit till 10.06.2012 but without any relief in the pain. The opposite party no. 3 referred the deceased to Christian Medical College & Hospital, Ludhiana (hereinafter referred to as "the opposite party no. 4") for further treatment and management where the deceased was admitted on 11.06.2012. The complainants were intimated by the doctors that the common bile duct (hereinafter referred to as "CBD") of the deceased was cut/injured during the operation of removal of gall bladder and drain was also leaked due to which bile fluid and waste fluid collected/entered in the abdominal parts of the body resulting into infection and poisonous substance in the body. The deceased remained admit in the opposite party no. 4 from 11.06.2012 to 03.07.2012 and got discharged on 03.07.2012. The complainants spent about Rs. 5,00,000/- on medical treatment of the deceased but condition of the deceased did not improve. The deceased also remained admit in PGI, Chandigarh from 03.07.2012 to 05.07.2012 and died on 05.07.2012. The opposite parties no. 3 and 4 after going through the discharge summary of the deceased supplied by the opposite party no.l intimated the complainants that the operation of the deceased was conducted by Dr. Hukam Chand Garg (hereinafter referred to as "the opposite party no. 2") although the opposite party no. 1 assured the complainants that he himself would conduct the operation. The complainants came to know that the opposite party no.l was not having necessary qualification to conduct the surgery being an anesthetist and the operation was conducted by the opposite party no.2 in the hospital of the opposite party no.l as evident from the discharge summary of the deceased. The complainants alleged medical negligence on the part of the opposite parties no.l and no. 2 as they operated the deceased in a negligent manner due to which the CBD was got injured/cut. The opposite parties no 1 & 2 did not arrange/put proper drainage after the operation of gall bladder which caused leakage of the waste fluid which was collected in the body due to which condition of the deceased became deteriorated and resulting her death on 05.07.212. The opposite parties no. 1 and no.2 are jointly and severely liable for medical negligence in performing surgery of removal of the gall bladder of the deceased and as such were responsible for her death. The complainants being aggrieved filed present consumer complaint bearing C. C. no. 473 of 2012 tiled as Lakhwinder Singh and others vs Dr. Vivek K. Jain and others under section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") before the District Consumer Disputes Redressal Forum, Bathinda (hereinafter referred to as "the District Forum") and prayed as under:-

                   1. To pay Rs. 17,50,000 i.e. Rs. 5,00 ,000/- spent on medical treatment due to negligent operation of opposite party no. 1 and 2, Rs. 12,00,000/- on account of compensation and Rs. 50,000/- on account of litigation costs along with interest @ 18% per annum from the date of operation i.e. 31.05.2012 till the date of payment.

                   2. The complainants may also be awarded any other additional or alternative relief for which they may be found entitled to.

2. The opposite parties have filed their respective written statement/reply. The opposite party no 1 in reply took legal objections and stated that the complainants do not fall under definition of the consumers. The complaint does not disclose any negligence or deficiency of service on the part of the opposite party no 1. The complainants have not produced medical records pertaining to the deceased prepared in the opposite party no 3 and PGI, Chandigarh. The opposite party no 1 is a doctor of repute with vast experience in medical field and retired as civil surgeon. The opposite party no 2 conducted the operation of removal of gall bladder i.e. cholecystectomy with his best ability and capabilities and was assisted by the opposite party no 1 in conduction of surgical operation.

                   The opposite party no 1 on reply on merits stated that the deceased along with the complainant no 1 and Jogwinder Singh came to his hospital on 31.05.2012 with complaint of pain in right hypocondrium region. The deceased after ultrasound scanning was diagnosed with cholecystitis with cholelithiasis. The opposite party no 2, visiting surgeon in the hospital of the opposite party no 1 after examination of the deceased and perusal of the test and investigation reports also diagnosed the deceased as a case of cholecystitis with cholelithiasis and advised for removal of the gall bladder i.e. Cholecystectomy. The deceased and the complainant no 1 being husband of the deceased were informed about presence of stones in the gall bladder and necessity to undergo surgery for removal of gall bladder besides explaining risk involved in the surgery. The deceased and the complainant no 1 gave consent for operation after understanding risk involved in surgery and anaesthesia. The deceased was successfully operated on 31.05.2012 and gall bladder after removal was sent to biopsy and histopathology. The opposite party no 2 conducted operation for removal of gall bladder with stones with the assistance of the opposite party no 1 without any complication either during operation or post-operation. The deceased was given appropriate post-operative care and was discharged from hospital on 03.06.2012. The deceased had slight nausea on 31.05.2012 and 01.06.2012 but did not complain vomiting and fever post-operation. There was no discharge in drain tube after morning of 01.06.2012 and accordingly drain tube was removed on 03.06.2012. The blood pressure and pulse of the deceased were normal during the stay in the hospital. The opposite party no. 1 was not aware about the treatment given to the deceased at the opposite party no. 3 and apprehended that some surgical intervention might have done at the opposite party no. 3 resulting into deteriorating physical condition of the deceased. The complainants have not disclosed name of the doctor who intimated them about injury/cut in CBD and leakage of drain during operation of removal of the gall bladder. There was no leak of fluid or bile in the drain tube post operation which might indicate bile duct injury. The deceased might have suffered complication at the opposite party no. 3 due to wrong diagnosis, improper care and surgical intervention. The injury to CBD if any should have been repaired/ managed at the opposite parties no 3 & 4. The CT scan report dated 25.06.2012 prepared at opposite party no 4 showed that CBD was visualized without any injury/cut. The opposite party no.l denied medical negligence on his part qua the deceased and other allegations as levelled by the complainants. The opposite party no 1 prayed that the complaint be dismissed.

                   2.1 The opposite party no 2 in reply took legal objections and stated that the complainants do not have locus standi to file the present complaint as the opposite party no. 2 did not charge from the complainants. The complaint is bad for non-joinder of necessary party. The complaint does not disclose any negligence or deficiency in service on part of the opposite party no 2. The opposite party no 2 is a qualified and experienced surgeon with vast experience in conduction of surgical operations. The opposite party no 2 only assisted in the operation of gall bladder i.e. Cholecystectomy which was conducted by the opposite party no 1 to his best ability and capability. The deceased did not make any complaint either during operation or postoperation. The complainants have not produced medical record pertaining to the deceased prepared at the opposite party no 3.

                   The opposite party no 2 on reply on merits stated that the opposite party no 2 received a call from the opposite party no 1 regarding a patient who was diagnosed with stones in gall bladder and required cholecystectomy and the opposite party no 1 made a request to him for assisting in the operation. The opposite party no 2 on specific request of the opposite party no 1 visited hospital and assisted the opposite party no 1 in the operation which was conducted successfully. The deceased after operation was cheerful and normal. The opposite party no 2 after operation left hospital of the opposite party no 1 who undertook to take post-operative care of the deceased. The opposite party no. 2 post-operation was not contacted either by the deceased or by the opposite party no 1. There was no referral slip for referral of the deceased to the opposite party no 3. The opposite party apprehended that some surgical intervention might have done at the opposite party no 3 which resulted in the deteriorating condition of the deceased. The complainants have not disclosed details of the doctor who informed the complainants about the injury to CBD during operation and drain also leaked whereby bile fluid and waste fluid collected/entered the abdominal parts of the body causing infection and poisonous substance in the body. The cut/injury if any in the common bile duct should have been managed or repaired at the opposite party no 4 where the deceased remained admit for more than 22 days. The CT scan report dated 25.06.2012 prepared at opposite party no 4 showed that common bile duct was visualized without any injury/cut. The deceased might have suffered from infection, septicaemia and paralytic illness causing death of the deceased. The opposite party no.2 also denied medical negligence on his part qua the deceased and other allegations as levelled by the complainants. The opposite party no 2 prayed that the complaint be dismissed.

                   2.2 The opposite party no. 3 in written reply stated that the deceased was admitted in the opposite party no 3 on 04.06.2012 as a post-operative case of cholecystectomy with abdomen pain, distention abdomen and vomiting. The complainant remained admit in the opposite party no 3 from 04.06.2012 till 10.06.2012 and after being differential diagnosed with paralytic ileus was treated accordingly. The ascites was diagnosed after tests during hospitalization. The deceased could not improve after treatment and accordingly was referred to higher centre for further management. The complainants were given reports pertaining to the deceased. The opposite party no 3 denied medical negligence on its part and prayed that complaint be dismissed.

                   2.3 The opposite party no. 4 in preliminary objections of the written statement stated that the deceased was admitted in the opposite party no 4 on 11.06.2012 vide Hospital Unit No.C-7383823 with a diagnosis of post open cholecystectomy CBD injury and complaints of abdominal distension and bile leak from the drain side. The deceased had undergone an open cholecystectomy on 31-5-2012 in the hospital of the opposite party no.l. The deceased was managed with I.V. antibiotics and was moderated. MRCP was planned but could not be done in view of massive ascites. The deceased underwent a diagnostic laparoscopy and drain insertion on 14-6-2012. The deceased was recovering post operatively and nasogastric tube was removed on the second post operation day. The deceased was put on liquid diet. The deceased suffered from fever on 8th post operation day and developed candida sepsis. The deceased showed improvement after medication but developed tachypnoea on 15 post operation day. The deceased on 2-7-2012 i.e. 19th day after operation became drowsy and developed severe metabolic and respiratory acidosis. The deceased was intubated and put on peripheral ventilator with inotropic support. The deceased was planned to be shifted in ICU but discharged as LAMA at insistence of the complainants. There was no negligence or deficiency in service on the part of opposite party no. 4 and prayer for dismissal of the complaint was made. .

3. The District Forum vide order dated 23.04.2013 accepted the complaint with cost of Rs. 10,000/- against the opposite parties no. 1 and no. 2 and the complaint was dismissed qua the opposite parties no. 3 and 4. The District Forum directed the opposite party no 1 to pay Rs. 5,03,600/- being medical expenses and Rs. 50,000/- as compensation along with Rs. 5,000/- as litigation cost and the opposite party no. 2 to pay Rs. 50,000/- as compensation along with Rs. 5,000/- as litigation cost to the complainants. The District Forum further directed that the awarded amount shall be paid in equal shares to the complainants and the order be complied within 45 days from the date of receipt of copy of the order and further in case of non-compliance by the opposite party no.l, amount of medical expenses i.e. Rs.5,03,600/- and non-compliance by the opposite party no. 2, the amount of compensation of Rs.50,000/- would carry interest @ 9% pa from the date of the order till realization.

                   3.1 The District Forum relied upon medical records Ex. C-14 prepared at opposite party no 4 which reflected that the deceased was diagnosed with undergone open Cholecystectomy and CBD injury and Ex. C-8 which was MRCP report dated 12.06.2012 issued by the opposite party no 4 which also indicated CBD injury and collection of small fluid. The District Forum also referred CT scan report Ex. C-9 issued by the opposite party no 4 which also indicated distal CBD measuring 6mm. The District Forum also considered contradictory stand taken by the opposite parties no 1 & 2 and observed that the opposite party no 1 conducted the surgery despite being that the opposite party no 1 was post-graduate in anesthesia and was not competent to perform the surgery and due to this reason injury was caused to CBD resulting in the death of the deceased. The District Forum ultimately opined that opposite parties no 1 & 2 were guilty of deficiency of service.

4. The complainants being aggrieved by the order dated 23.04.2013 passed by the District Forum filed First Appeal bearing no. 671 of 2013 before the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as "the State Commission"). The opposite parties no.l and 2 being aggrieved also filed respective First Appeals bearing No. 685 of 2013 and 700 of 2013 before the State Commission for dismissal of the complaint. The State Commission vide common order dated 27.10.2016 (hereinafter referred to as "the impugned order") decided three appeals and observed that the District Forum has calculated the medical expenses wrongly and accordingly reduced the medical expenses from Rs. 5,03,600/- to Rs. 3,17,000/- as awarded by the District Forum and medical expenses were ordered to be paid by the opposite parties no 1 & 2 jointly and severely. The State Commission further ordered that the opposite parties no 1 & 2 shall pay compensation of Rs. 1,50,000/-jointly and severely to the complainants for loss of life of the deceased. The State Commission also enhanced the litigation expenses to Rs.30,000/-. The State Commission partly allowed Appeal bearing no 671 of 2013 filed by the complainants and also disposed of the Appeals bearing no 685 of 2013 and 700 of 2013 filed by the opposite parties no 1 & 2.

                   4.1 The State Commission in impugned order considered the issue whether the operation was conducted either by the opposite party no 1 or opposite party no 2 and after analyzing pleadings and evidence filed by the opposite parties no 1 & 2 opined that the surgical procedure was conducted by the opposite parties no 1 & 2 jointly whereby injury to CBD was caused. The State Commission further observed that the opposite parties no 1 & 2 were jointly and severely liable for medical negligence and deficiency in service as they have not taken remedial measure for repair of injury to CBD. The State Commission did not accept the contention of the opposite parties no 1 & 2 that injury might have been caused at the opposite party no 3. The State Commission ultimately held that the opposite parties no 1 & 2 have not taken post-surgery/operative care of the deceased which tantamount to medical negligence on their part. The relevant portion of impugned order is reproduced verbatim as under:-

                   11. The next point for adjudication before us is whether it was OP no.l or OP no.2, who performed the surgery causing CBD injury. We have perused the pleadings of OP nos.l and 2. OP no.l had taken stand that he called the visiting surgeon OP no.2 for this surgery. OP no.2 has taken the stand that when he reached in the hospital of OP no.l, the patient Satwant Kaur was already lying on operating table and he assisted OP no.l in the operation. OP no.l is M.D. Anesthesia and not a qualified surgeon. We have examined the affidavits of complainant no.l Lakhwinder Singh Ex.C-1 and C-36 on the record. Ex.C-2 is the death certificate of Satwant Kaur proving her death on 05.07.2012. The discharge report prepared by OP no.2 is Ex.C-3. This is a vital document on the record to settle the controversy in this case. It is recorded in it that the surgeon was Dr. H.C. Garg, M.S. who is OP no.2. OP no.2 admitted his presence in the hospital of OP no.l at the relevant time of surgery and also admitted this fact that he assisted OP no.l in the operation. The only purpose of calling OP no.2 as visiting surgeon was to perform the operation by OP no.l and not for other purpose. Now OP nos.l and 2 have taken conflicting stands with regard to the fact as to who performed her operation. The discharge summary Ex.C-4 has recorded the name of OP no.2 Dr. H.C. Garg as surgeon. There was no question of calling OP no.2 at the hospital of OP no.l, if his services were not required for conducting surgery. OP no.2 has changed stand in the pleadings as well as in his evidence on the record that he assisted OP no.l in conducting the surgical procedure upon Satwant Kaur. OP no.l is only M.D. Anesthesia and he was not a surgeon and it is not credible that he conducted the operation, when OP no.2 a surgeon was present in his hospital at the appropriate time. Consequently, we are of this view that the surgical procedure was carried out by OP nos.l and 2 jointly, whereby CBD injury was caused. OP no.l is also equally at fault because this surgical operation was conducted at his hospital and he participated in the same and OP no.2 was a visiting surgeon, whose presence is also admitted in the hospital of OP no.l at the relevant time. There was no question of causing CBD injury by OP no.3 and 4, as such there is no such allegation to this effect. The fact not pleaded cannot be looked into.

                   The District Forum has not held OP nos.l and 2 jointly and severally liable for this medical negligence in not repairing the CBD injury which could occur at the time of surgical operation of gall bladder stone of Satwant Kaur. There was no question of its causing later on. Even if the CBD injury occurred, then OP nos.l and 2 jointly and severally are liable and they have not taken any remedial measures after occurrence of CBD injury to Satwant Kaur patient to repair it. The post operative lack of care by OP nos.l and 2 in not repairing the CBD injury is also deficiency in service and medical negligence by OP nos.l and 2. The record adduced by the OP nos.l and 2 including affidavit of Dr. Shekha Upadhya, Associate professor of CMC OP no.4 is Ex.R-1. Indoor file of patient Satwant Kaur is Ex.R-4 maintained by OP no.l hospital and has also been examined by us. It is recorded that CBD was clearly corrugated, drain was put. On the other hand, CT scan reports and record of CMC had contradicted it. Ex.R-8 is the MBBS degree certificate of Hukam Chand Garg OP no.2. Ex.R-9 is P.P.O. slip of Dr. Vivek Kumar OP no.l. Ex.R-10 is the MBBS degree certificate of Vivek Kumar Jain OP no.l. Ex.R-11 is the MD degree of OP no.l. We, thus, conclude that OP no.l called OP no.2 at his hospital for this specific purpose of surgery, otherwise there was no question of his visiting hospital of OP no.l, if he was not to conduct the surgery as surgeon. His participation in this surgery cannot be ruled out altogether as appeared on the record in this case. Consequently, the non-repair of CBD injury by OP nos.l and 2 is tantamount to medical negligence on their part.

                   12. The submission of OP nos.l and 2 is that this incident might have taken place at CMC or at OP no.3 hospital or at PGI Chandigarh later on. Had it been so, OP nos.l and 2 could have applied for summoning the requisite record of the above institutes to establish this point to shift the onus of proof, but they have not done so. The irresistible inferences is only that CBD injury was caused at the hospital of OP no.l and OP nos.l and 2 are, thus, jointly and severally negligent in this regard.

                   13. We have come to this clear conclusion that post operative care has not been taken by OP nos.land 2 and it tantamounts to medical negligence on their part.

5. The complainants and the opposite parties no 1 & 2 being aggrieved filed the present revision petitions under section 21(b) of Act for setting aside/modified the impugned order before this Commission. The complainants filed the revision petition bearing no. 2982 of 2017 titled as Lakhwinder Singh and others V Dr. Vivek K. Jain and others. The opposite party no 1 filed the revision petition bearing no. 303 of 2017 titled as Dr. Vivek K. Jain V Lakhwinder Singh and others and the opposite party no 2 filed the revision petition bearing no. 684 of 2017 titled as Hukam Chand Garg V Lakhiwnder Singh and others.

                   5.1 The complainants challenged the impugned order on grounds that the compensation awarded by the District Forum and the State Commission is grossly insufficient and inadequate. The complainants suffered immense loss due to death of the deceased and as such are entitled compensation for loss of love and affection. The complainants after referring various decisions prayed that impugned order be revised and set aside to the limited extent of award of medical expenses, compensation and cost of litigation which are required to be enhanced accordingly.

                   5.2 The opposite parties no 1 & 2 challenged the impugned order primarily on grounds that the State Commission has failed to appreciate that the District Forum has passed the order without appreciating documents. The impugned order was passed without application of judicial mind with material irregularity. CT scan report justified the stand taken by the opposite parties no 1 and 2 and the operation was conducted as per medical procedure and protocol without any medical negligence. The District Forum has not appointed any medical expert committee to examine the issues involved in present complaint and passed order in contravention with the medical jurisprudence as CBD injury caused jaundice. The State Commission has failed to appreciate ultrasound report dated 04.06.2012 wherein CBD was shown as normal caliber and report dated 09.06.2012 of spiral CECT of the abdomen which did not indicate any sign of biliary obstruction meaning thereby CBD was working normally. CT scan report dated 25.06.2012 prepared at the opposite party no 4 also depicted CBD as normal. The opposite party no 3 without reason conducted laparoscopy of deceased on 14.06.2012. The State Commission developed fungal infection (candida sepsis) and respiratory problem. The opposite party no 4 should have repaired injury/cut to CBD where the deceased remained admitted for 22 days. It was prayed that the impugned order be set aside.

                   5.3 The revision petition bearing no. 2982 of 2017 titled as Lakhwinder Singh and others Vs. Dr. Vivek K. Jain and others filed by the complainants, the revision petition bearing no. 303 of 2017 titled as Dr. Vivek K. Jain Vs. Lakhwinder Singh and others filed by the opposite party no 1 and the revision petition bearing no. 684 of 2017 titled as 'Hukam Chand Garg V Lakhiwnder Singh and others filed by the opposite party no 2 are proposed to be decided by present common judgment.

6. The counsel of the opposite party no 2 vide proceedings dated 16.04.2025 admitted that the surgical operation of the deceased was conducted by the opposite party no 2 and accordingly was directed to appear in person before the Bench. The opposite party no 2 appeared before the Bench on 22.05.2025 and admitted that he being the surgeon had conducted surgery and the opposite party no 1 being anesthetist assisted him in the surgery.

7. We have heard Sh. Gagan Gupta, Senior Advocate assisted by Sh. Ananta Prasad Mishra and Sh. Jasbir Singh, Advocates for the complainants; Sh. Akash Kakade and Mr. Somanath Padhan, Advocates for the opposite party no.l along with opposite party no.l and Ms. Neha, Gupta, Mr. Rishabj Pant and Ms. Arpita Singh, Advocates for the opposite party no 2 along with opposite party no.2. None has appeared on behalf of the opposite parties no.3 and 4 to advance arguments. We have also considered the record including the order dated 23.04.2013 passed by the District Forum, the impugned order passed by the State Commission and the written submissions submitted on behalf of the complainants and the opposite parties no. 1 and no. 2.

8. The counsels for the complainants argued that the opposite party no 2 as per the opposite party no 1 had conducted operation on the deceased for removal of the gall bladder while the opposite party no 2 took the stand that the operation was conducted by the opposite party no 1 and the opposite party no 2 only assisted the opposite party no 1 and as such contradictory stand taken by the opposite parties no 1 & 2 itself is indicative of medical negligence. The State Commission referred ultrasound report Ex. C-8 prepared at the opposite party no 4 and CT Scan Report Ex. C-9 dated 25.06.2012 which clearly established that CBD injury was caused to the deceased during surgical procedure. The counsel for the complainants also referred ultrasound report Ex. C-4 which also established that the gall bladder was in distended state and there was CBD injury. It was further argued that the opposite parties no 1 & 2 were present at the time of operation but they did not repair the injured bile duct which is reflective of negligence during surgery and post operation. The opposite parties could not prove that injury to CBD might have caused at the opposite party no 4 as alleged by them. It was empathetically argued that scope of revision petition is limited and there is no illegality or material irregularity in the orders passed by the District Forum and the State Commission and such revision petitions filed by the opposite parties no 1 & 2 be dismissed. It was argued that the compensation awarded by the State Commission be enhanced as the complainants are entitled for suitable compensation for loss of love and affection of the deceased. The counsel for the complainant also cited various decisions delivered by this Commission and the Superior courts.

                   8.1 The counsels for the opposite party no 1 argued that there is no concrete evidence for establishing medical negligence on the part of the opposite party no 1 and to support this argument referred CT scan report dated 25.06.2012 reflecting that CBD was intact and was of normal caliber (6mm), ultrasound report dated 04.06.2012 which indicated normal CBD and spiral CECT of the abdomen conducted on 09.06.2012 showing no sign of biliary obstruction and confirming normal bile flow. It was argued that these reports collectively negate allegations that the surgical operation caused injury which led to complication and ultimately death of the deceased. The District Forum should have constituted a medical committee to examine allegations of medical negligence comprehensively. It was further argued that complications were arisen when the deceased was treated in the opposite parties no 3 & 4. The deceased developed fungal infection (Candia sepsis) and respiratory problems leading to her death and these complications are not associated with gall bladder surgery and could have been aggravated in subsequent treatment. It was also argued that the District Forum did not assess the documents and medical evidence critically. There was no concrete evidence to substantiate claim of bile duct injury and leakage alleged to have been caused by the opposite parties no 1 & 2. The present complaint has been filed to financially exploit the opposite party no 1. The allegations of medical negligence lacked substantive evidence and are not supported by medical evidence. It was finally argued that the order passed by the District Forum and the impugned order passed by the State Commission be set aside.

                   8.2 The counsels for the opposite party no 2 besides referring factual background argued that the deceased remained admitted in the hospital of the opposite party no 1 from 31.05.2012 to 03.06.2012 and was given proper medication and responded appropriately to the treatment. The deceased was discharged on 03.06.2012 on request. The opposite party no 2 retired as Civil Surgeon and did master of surgery (MS) from Punjab University and performed thousands of surgical operations. The counsels empathetically argued that the opposite party no 2 performed the cholecystectomy procedure in the hospital of the opposite party no 1 on 31.05.2012 in accordance with standard medical practice and no complications were observed either during operation or post-operation. The deceased was given best post-operative care. It was further argued that the deceased remained admit in the opposite party no 3 from 04.06.2012 to 10.06.2012 without being referred by either of the opposite parties no 1 & 2. The opposite party no 3 only made bald averments regarding treatment of the deceased for paralytic ileus and ascites without any supporting document. The deceased was admitted in the opposite party no 4 on 11.06.2012 and remained admit there for 22 days where diagnosed for alleged CBD leakage was made but the complainants did not produce documents pertaining to the treatment given in the opposite party no 4. The counsels for the opposite party no. 2 in respect of the complaint bearing CC 473/2012 argued that the deceased was in satisfactory condition after surgery and was given adequate post-surgery care. The counsels for the opposite party no 2 also referred ultrasound report dated 04.06.2012, spiral CECT abdomen report dated 09.06.2012 and MRCP report dated 12.06.2012 to establish that CBD post-surgery was normal. It was also argued that complications to deceased might have caused due to subsequent admission in different hospitals i.e. the opposite parties no 3 & 4 and PGI, Chandigarh. The counsels further argued that the District Forum did not appoint competent medical expert to assess the surgical procedure adopted by the opposite parties no 1 & 2 which is essential to establish medical negligence. The counsels for the opposite parties no 1 & 2 after referring case law argued that the impugned order be set aside.

9. We shall first refer the factual position appearing from the record. The deceased visited hospital of the opposite party no 1 with complaint of pain in right hypocondrium region on 31.05.2012 and was recommended for cholecystectomy i.e. surgical removal of gall bladder after being diagnosed with cholecystitis with cholelithiasis in ultrasound report. The opposite party no 1 being an anesthetist called the opposite party no 2, an experienced and qualified surgeon and visiting surgeon in the hospital of the opposite party no 1 for surgical operation of removal of gall bladder. The surgical removal of gall bladder i.e. cholecystectomy was conducted on 31.05.2012. Initially the opposite parties no 1 & 2 took the stand that individually they only assisted another in performing operation but subsequently the opposite party no 2 admitted that he performed the surgical procedure of removal of gall bladder i.e. the cholecystectomy on 31.05.2012. The deceased remained admit in the hospital of the opposite party no.l from 31.05.2012 to 03.06.2012 but continued to vomit after operation and abdominal pain did not subside. The deceased due to deteriorating condition was removed to the opposite party no 3 on 04.06.2012 as a post-operative case of cholecystectomy with abdomen pain, distention abdomen and vomiting where the deceased remained admit from 04.06.2012 to 10.06.2012. The deceased was diagnosed with paralytic ileus and ascites.The deceased for further treatment was referred to the opposite party no. 4 and admitted there on 11.06.2012. The deceased was diagnosed with post open cholecystectomy CBD injury with complaints of abdominal distension and bile leak from the drain side The complainants were informed that the common bile duct (CBD) of the deceased was cut/injured during the operation of removal of gall bladder and drain was also leaked due to which bile fluid and waste fluid collected/entered in the abdominal parts of the body resulting into infection and poisonous substance in the body. The deceased underwent a diagnostic laparoscopy and drain insertion on 14-6-2012. The deceased on 8th post operation day developed candida sepsis and tachypnoea on 15 post operation day. The deceased was got discharged as LAMA from the opposite party no. 4 on 03.07.2012. The deceased was also admitted in PGI, Chandigarh from 03.07.2012 to 05.07.2012 and died on 05.07.2012. The District Forum vide order dated 23.04.2013 accepted the complaint against the opposite parties no. 1 and no. 2 and dismissed the complaint qua the opposite parties no. 3 and 4. The District Forum observed that the opposite party no 1 conducted the surgery though he was not competent to perform the surgery. The District Forum opined that opposite parties no 1 and 2 were guilty of deficiency of service. The State Commission in impugned order opined that the surgical procedure was conducted by the opposite parties no 1 & 2 jointly whereby injury to CBD was caused and held the opposite parties no 1 & 2 jointly and severely liable for medical negligence and deficiency in service for want of remedial measure for repair of injury to CBD.

10. We shall hereinafter refer the medical documents pertaining to the deceased which were prepared during treatment with opposite parties. The deceased as per indoor file prepared at the hospital of the opposite party no 1 was diagnosed with pain in right hypochondrium and referred for ultrasound of whole abdomen which was done at Usha Mission Hospital. The abdominal ultrasonography with respect to gall bladder revealed as under:-

                   Visualized in distended state. Lumen is filled with multiple intraluminal echogenic foci's with band of PAS s/o multiple calculi's. Wall is diffusely thickened and measure 5.0 mm. CBD is normal and measures 5.1 mm.

                   The deceased and the complainant no 1 being husband of the deceased gave consent for operation under any kind of anesthesia at their risk and were also explained about risk of surgery and anesthesia. The cholecystectomy was carried out on 31.05.2012. The gall bladder was containing many stones and CBD was normal. The corrugated drain was put in and complete hemostasis was obtained. The indoor file after surgical procedure was signed by the opposite parties no 1 & 2. The deceased was given/prescribed post-operative medicines. The general condition of the deceased on 31.05.2012 at about 9 pm was found to be satisfactory but the deceased complained of pain on affected region and slight nausea. The deceased on 01.06.2012 was noticed with good general condition but at 2 pm was having slight nausea. The deceased was not having nausea or sensation of vomiting on 02.06.2012. The deceased on 03.06.2012 was found with good general condition and without any complaint. The deceased was discharged on 03.06.2012 on request and general condition was found satisfactory at that time and no discharge or leakage was present. The deceased was not having any other complaint. The Discharge Summary reflected that the operation/surgery was conducted by the opposite party no 2 and the deceased was prescribed with requisite treatment.

                   10.1 We shall now refer other medical documents as detailed herein and are referred and relied on by the complainant and the opposite parties no 1 and 2. The ultrasound of the deceased was also conducted on 04.06.2012 during her admission in the opposite party no 3. It reflected gall bladder was with history of cholecystectomy and CBD was of normal caliber. Spiral CECT Abdomen of the deceased was also conducted on 09.06.2012 during her admission in the opposite party no 3. The perusal of report reflects that no sign of biliary obstruction was observed. Another important medical document is MRCP (Magnetic Resonance Cholangiopancreatography) dated 12.06.2012 Ex. C-8 prepared at the opposite party no 4 and is stated to be non-invasive, radiation free MRI scan used to create detailed images of the liver, gall bladder, bile ducts and pancreas to diagnose blockages, stones, tumors or inflammation. It indicated CBD injury. It also reflects that gall bladder was absent consistent with history of cholecystectomy and proximal common bile duct was found to be normal in course and caliber of 5.7 mm. The relevant portion of MRCP dated 12.06.2012 is reproduced verbatim as under:-

                   GB is absent; consistent with h/o cholecystectomy

                   The proximal CBD is normal in caliber. No intra luminal signal void is seen with in the CBD. A non visualized segment of the mid CBD is noted with approximate length of 7.7 mm. Small fluid collection is also noted in this site.

                   Distal CBD is subontimailv visualized

                   OPINION: MRCP STUDY SHOWS

                   1. FOCAL NON VISUALIZED SEGMENT OF THE MID CBD WITH SMALL ADJACENT COLLECTION AS DESCRIBED, SUGGESTIVE OF CBD INJURY

                   2. HEPATOMOMEGALY WITH ASCITES

                   CT Abdomen-plain & Contrast of the deceased was also conducted on 25.06.2012 during her admission in the opposite party no 4. The report dated 25.06.2012 indicated common bile duct injury and "CBD visualized distal CBD measures 6 mm".

11. The decision in Bolam Vs Friern Hospital Management Committee, (1957) 1 WLR 582 laid down the basic principle relating to negligence by professionals which is also called as Bolam Rule as under:-

                   (W)here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he as not got this special skill. The test is the standard of the ordinary skilled man exercising and profession to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art

                   11.1 The Supreme Court after relying on Bolan Test in many cases defined scope of medical negligence by the doctors. The Supreme Court in Achutrao Haribhau Khodwa Vs. State of Maharashtra and others, (1996) 2 SCC 634 held as under:-

                   The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as lone as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

                   11.2 The Supreme Court in Jacob Mathew Vs. State of Punjab extensively discussed negligence by professionals including doctors. The Supreme Court observed as under:-

                   In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a 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. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

                   11.3 The Supreme Court also referred Bolam case and stated that it is cited and dealt with in several judicial pronouncements. It was observed that the classical statement of law in Bolam's case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been applied to as touchstone to test the pleas of medical negligence. It is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. The Supreme Court further observed that a mere deviation from normal . professional practice is not necessarily evidence of negligence. An error of judgment on the part of a professional is not negligence per se. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. It was also observed that 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. A single failure may cost him dear in his career.

                   11.4 The Supreme Court also discussed rule of res ipsa loquitur and stated that it is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors otherwise it would be counter-productive. The doctor cannot be held liable by applying doctrine of res ipsa loquitur because a patient has not favourably responded to a treatment given by a physician or a surgery has failed. The Supreme Court has summed up the conclusions as under:-

                   (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.....Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

                   (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, 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 that particular time (that is, the time of the incident) at which it is suggested it should have been used.

                   (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

                   (4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

12. The Supreme Court in Neeraj Sud & another Vs. Jaswinder Singh (minor) & another, Civil Appeal No 272 of 2012 decided on 25.01.2024 after referring Bolam case and Jacob Mathews V State of Punjab in context to medical negligence held as under:-

                   11. Deterioration of the condition of the patient post-surgery is not necessarily indicative or suggestive of the fact that the surgery performed or the treatment given to the patient was not proper or inappropriate or that there was some negligence in administering the same. In case of surgery or such treatment it is not necessary that in every case the condition of the patient would improve and the surgery is successful to the satisfaction of the patient. It is very much possible that in some rare cases complications of such nature arise but that by itself does not establish any actionable negligence on part of the medical expert.

                   14. It is well recognized that actionable negligence in context of medical profession involves three constituents (i) duty to exercise due care; (ii) breach of duty and (iii) consequential damage. However, a simple lack of care, an error of judgment or an accident is not sufficient proof of negligence on part of the medical professional so long as the doctor follows the acceptable practice of the medical profession in discharge of his duties. He cannot be held liable for negligence merely because a better alternative treatment or course of treatment was available or that more skilled doctors were there who could have administered better treatment.

                   15. A medical professional may be held liable for negligence only when he is not possessed with the requisite qualification or skill or when he fails to exercise reasonable skill which he possesses in giving the treatment. None of the above two essential conditions for establishing negligence stand satisfied in the case at hand as no evidence was brought on record to prove that Dr. Neeraj Sud had not exercised due diligence, care or skill which he possessed in operating the patient and giving treatment to him.

                   16. When reasonable care, expected of the medical professional, is extended or rendered to the patient unless contrary is proved, it would not be a case for actionable negligence. In a celebrated and very often cited decision in Bolam v. Friern Hospital Management Committee (Queen's Bench Division)3, it was observed that a doctor is not negligent if he is acting in accordance with the acceptable norms of practice unless there is evidence of a medical body of skilled persons in the field opining that the accepted principles/procedure were not followed. The test so laid down popularly came to be known as Bolam's test and stands approved by the Supreme Court in Jacob Mathews v. State of Punjab and Another.

                   17. In Jacob Mathews (supra) this Court held that a professional may be held liable for negligence if he is not possessed of the requisite skill which he supposes to have or has failed to exercise the same with reasonable competence.

                   18. In other words, simply for the reason that the patient has not responded favourably to the surgery or the treatment administered by a doctor or that the surgery has failed, the doctor cannot be held liable for medical negligence straightway by applying the doctrine of Res Ipsa Loquitor unless it is established by evidence that the doctor failed to exercise the due skill possessed by him in discharging of his duties.

13. The Supreme Court in Kusum Sharma Vs. Batra Hospital, (2010) CPJ 29 (SC) observed that medical science has conferred great benefits on mankind but these benefits are attended by considerable risks. Every surgical operation is attended by risks. It was further observed that the professional should be held liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future but at the same time courts have to be extremely careful to ensure that unnecessarily professionals are not harassed and they will not be able to carry out their professional duties without fear. The Supreme Court in Martin F D'Souza Vs. Mohd Ishfaq, (2009) 3 SCC 1 observed that simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. It was also observed in this case that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

14. The Supreme Court in Deep Nursing Home and another V Manmeet Singh Mattewal and others, 2025 SCC OnLine SC 1934 after referring Jacob Mathew V State of Punjab and Martin F. D'Souza V Mohd. Ishfaq observed as under:-

                   23. As pointed out in Jacob Mathew vs. State of Punjab and another6, simply because a patient did not favourably respond to the treatment given by a physician or if a surgery failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. This edict was reiterated in Martin F. D'Souza vs. Mohd. Ishfaq wherein, it was pointed out that no sensible professional would intentionally commit an act or omission which would result in harm or injury to a patient as the reputation of that professional would be at stake and a single failure may cost him or her dear in that lapse. It was also pointed out that sometimes, despite best efforts, the treatment by a doctor may fail but that does not mean that the doctor or surgeon must be held guilty of medical negligence, unless there is some strong evidence to suggest that he or she is. It was also pointed out that Courts and Consumer Fora are not experts in medical science and must not substitute their own views over that of specialists. While acknowledging that the medical profession had been commercialised to some extent and there were doctors who depart from their Hippocratic Oath for their selfish ends of making money, this Court held that the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.

                   24. On the same lines, in Devarakonda Surya Sesha Mani and others vs. Care Hospital, Institute of Medical Sciences and others, 2022 SCC OnLine SC 1608 it was held that unless a complainant is able to establish a specific course of conduct, suggesting a lack of due medical attention and care, it would not be possible for the Court to second-guess the medical judgment of the doctor on the line of treatment which was administered and, in the absence of such material disclosing medical negligence, the Court cannot form a view at variance, as every death in the institutionalised environment of a hospital does not necessarily amount to medical negligence on a hypothetical assumption of lack of due medical care.

15. The Supreme Court in Jyoti Devi Vs. Suket Hospital, (2024) 8 SCC 655 observed as under

                   The Law on Medical Negligence

                   13. Three factors required to prove medical negligence, as recently observed by this Court in M.A Biviji v. Sunita, (2024) 2 SCC 242 following the landmark pronouncement in Jacob Matthew v. State of Punjab are:

                   37. As can be culled out from above, the three essential ingredients in determining an act of medical negligence are:

                   (1) a duty of care extended to the complainant,

                   (2) breach of that duty of care, and

                   (3) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty.

                   However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner."

14. To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v. Dr. M.A. Methusethupathi observed:

                   "31.... a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." (Emphasis supplied)

15. Observations in Harish Kumar Khurana v. Joginder Singh, (2011) 10 SCC 291 are also instructive. Bopanna J., writing for the Court held:

                   11. "...It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion." (emphasis supplied)

16. Initially the opposite parties no 1 & 2 adopted contradictory stand in their respective written statement/reply. The opposite party no 1 stated surgical operation for removal of gall bladder i.e. cholecystectomy of the deceased was conducted on 31.05.2012 in his hospital by the opposite party no 2 who was a visiting surgeon and the opposite party no 1 being an anesthetist only assisted the opposite party no 2 in cholecystectomy while the opposite party no 2 stated that cholecystectomy on the deceased was conducted by the opposite party no 1 and the opposite party no 2 on specific request of the opposite party no 1 only assisted the opposite party no 1 in conduction of cholecystectomy of the deceased. The complainants stated that they came to know that opposite partv no 2 conducted operation for removal of sail bladder of the deceased as the opposite party no 1 was not having requisite qualification as surgeon to conduct cholecystectomy. The District Forum in order dated 23.04.2013 observed that the opposite party no 1 conducted the surgery though the opposite party no 1 was not competent to perform the surgery. However, the State Commission in impugned order opined that the surgical procedure was conducted by the opposite parties no 1 & 2 jointly. The Indoor File which was prepared in the hospital of the opposite party no 1 after surgical procedure was signed by the opposite parties no 1 & 2. It is established that the opposite parties no 1 & 2 were present together at the time of cholecystectomy of the deceased which was conducted on 31.05.2012 in the hospital of the opposite party no 1. Subsequently the opposite party no 2 vide proceedings dated 22.05.2025 before Bench admitted that he performed the surgical procedure of removal of gall bladder i.e. cholecystectomy on the deceased on 31.05.2012 in the hospital of the opposite party no 1. Accordingly we are also of opinion that the cholecystectomy on the deceased was conducted by the opposite party no 2 in the hospital of the opposite party no 1 on 31.05.2012 but was assisted by the opposite party no 1.

17. The important issue which needs consideration and determination is that whether the opposite parties no 1 & 2 actually committed medical negligence while conducting cholecystectomy on the deceased on 31.05.2012 in the hospital of the opposite party no 1 and for this systematic analysis of medical documents/reports prepared post-surgery/operation is required. The surgical removal of gall bladder i.e. cholecystectomy on the deceased was conducted on 31.05.2012. The deceased before cholecystectomy as per indoor file prepared at the hospital was referred for ultrasound of whole abdomen and as per report of the abdominal ultrasonography, gall bladder was visualized in distended state and lumen is filled with multiple intra-luminal echogenic foci's with band of PAS s/o multiple calculi's and CBD was found normal and measures 5.1 mm. It reflects CBD of the deceased before cholecystectomy was normal and without any cut/injury. The deceased remained admit in the hospital of the opposite party no 1 from 31.05.2012 till 03.06.2012 and continued to have nausea after operation and abdominal pain was not subsided. The deceased due to bad physical condition was admitted in the opposite party no 3 on 04.06.2012 with history of cholecystectomy and abdomen pain, distention abdomen and vomiting. The deceased remained admit in the opposite party no 3 from 04.06.2012 to 10.06.2012 where the deceased was diagnosed with paralytic ileus and ascites.The deceased also referred and admitted in the opposite party no. 4 on 11.06.2012 for further treatment and management and remained admit there till 03.07.2012. We shall now refer and discuss other medical tests conducted on the deceased when she was admitted in the opposite parties no 3 & 4. The deceased during admission in the opposite parties no 3 & 4 had undergone various tests. The ultrasound of the deceased was conducted on 04.06.2012 and reflected that CBD was of normal caliber which may be indicative of normal biliary function. The deceased was also subjected to Spiral CECT Abdomen on 09.06.2012, the report of which reflected no sign of biliary obstruction. MRCP dated 12.06.2012 indicated CBD injury and further proximal common bile duct was found to be normal in course and caliber of 5.7 mm. The deceased was also subjected to CT Abdomen-plain & Contrast on 25.06.2012 and the report dated 25.06.2012 indicated common bile duct injury and CBD visualized distal CBD measures 6 mm.

                   17.1 The District Forum in order dated 23.04.2013 also referred medical record prepared by the opposite party no 4 Ex. C-14 which contained that the CBD injury was finally diagnosed. The District Forum also referred MRCP Report dated 12.06.2012 which was prepared when the deceased was admitted in the opposite party no 4 and Report dated 12.06.2012 Ex. C-8 and these reports also indicated CBD injury besides collection of small fluid at this site. It was opined in MRCP Report dated 12.06.2012 that "focal non visualized segment of mid CBD with small adjacent collection as described was suggestive of CBD". The District Forum also referred CT scan Report dated 25.06.2012 Ex. C-9 which referred "common bile duct visualized distal CBD measures 6 mm". The District Forum also referred history of the deceased prepared at the opposite party no 4 which also mentioned impression of CBD injury post cholecystectomy. The District Forum also relied on affidavit Ex. C-l tendered by Dr. Shekhar Upadhya, Associate Professor in the Department of Surgery, CMC & Hospital, Ludhiana wherein he did not deny that deceased had a CBD injury with bile leak. The District Forum held that the deceased was a case of CBD injury post Cholecystectomy and the opposite party no 4 treated the deceased only for CBD injury. The District Forum opined that CBD injury was caused to the deceased during operation in the hospital of the opposite party no 1. The District Forum also considered but not accepted contention of the opposite parties no 1 & 2 that as per CT scan report dated 25.06.2012 Ex. C-9, which was prepared when the deceased was admitted in the opposite party no 4, there was no damage or cut of any type in CBD because report dated 25.06.2012 reported that size of common bile duct visualized digital measures as 6mm. The District Forum held that the deceased had died due to negligence of the opposite parties no 1 & 2. The State Commission in the impugned order also held that CBD injury was caused to the deceased during surgical procedure at the hospital of the opposite party no 1 and for this relied on medical documents i.e. ultrasound report Ex. C-8 dated 12.06.2012 which was prepared post-operation, CT scan Report dated 25.06.2012 Ex.C-9 which indicated common bile duct injury.

                   17.2 We have also considered arguments advanced on behalf of the opposite parties no 1 & 2. The counsels for the opposite party no 1 while primarily argued that there is no concrete evidence to establish medical negligence on the part of the opposite party no 1 referred CT scan report dated 25.06.2012 reflecting that CBD was intact and was of normal caliber (6mm), ultrasound report dated 04.06.2012 indicating normal CBD and spiral CECT of the abdomen conducted on 09.06.2012 showing no sign of biliary obstruction and confirming normal bile flow. The counsels for the opposite party no 2 argued that the deceased was given proper medication and care during her admission in the hospital of the opposite party no 1 and the opposite party no 2 performed the cholecystectomy procedure on 31.05.2012 in accordance with standard medical practice. The counsels for the opposite party no 2 during arguments also referred ultrasound report dated 04.06.2012, spiral CECT abdomen report dated 09.06.2012 and MRCP report dated 12.06.2012 to establish that CBD post-surgery was normal and complications to the deceased might have caused due to subsequent admission in the opposite parties no 3 & 4 and PGI, Chandigarh. We are not in agreement with these arguments advanced on behalf of the opposite parties no 1 & 2 after considering medical documents which were referred by the respective counsels in the arguments. MRCP dated 12.06.2012 Ex. C-8 and CT Scan Report dated 25.06.2012 Ex.C-9 themselves were suggestive and indicative of CBD injury and these documents cannot be disbelieved and good enough for reliance. There is no force in arguments advanced on behalf of the opposite parties no 1 & 2 that ultrasound report dated 04.06.2012, spiral CECT abdomen report dated 09.06.2012 and MRCP report dated 12.06.2012 established that CBD post-surgery was normal and complications to the deceased might have caused due to subsequent admission in the opposite parties no 3 & 4 and PGI, Chandigarh. There is factual force in the argument advanced by the counsels for the complainants that MRCP dated 12.06.2012 Ex. C-8 and CT Scan Report dated 25.06.2012 Ex.C-9 clearly indicated CBD injury post-surgery and this argument deserved to be accepted. We after analyzing medical reports/documents as referred herein above are of considered opinion that CBD injury was caused to the deceased only during cholecystectomy conducted on 31.05.2012 by the opposite party no 2 in the hospital of the opposite party no 1 and at that time opposite party no 1 being anesthetists was also present. The opposite party no 1 & 2 are guilty of medical negligence while conducting cholecystectomy on the deceased on 31.05.2012 in the hospital of the opposite party nol. The District Forum and the State Commission rightly and logically placed reliance on medical documents as referred herein above to arrive at medical negligence on the part of the opposite parties no 1 & 2. The opposite parties no 1 & 2 are also guilty of negligence in not taking post-operative care of the deceased. There is absolutely no force in the arguments advanced on behalf of the opposite parties no 1 and 2 that CBD might have injured due to surgical intervention done when the deceased was admitted in the opposite parties no 3 and 4 and the opposite party no 4 should have repair CBD where the deceased remained admit for 22 days. There is no evidence that the deceased had undergone any surgical procedure when she was admitted in the opposite parties no 3 and 4. The deceased was also given appropriate treatment at the opposite party no 4. We have also gone through decisions delivered by the Supreme Court in Kalyani Rajan Vs. Inderprastha Apollo Hospital, (2024) 3 SCC37 and M.A. Biviji V Sunita and others, (2024) 4 SCC 242 which were referred during arguments. The complainants are able to prove medical negligence on the part of the opposite parties 1 & 2 by producing convincing evidence.

                   17.3 We have also consider other arguments advanced on behalf of the opposite parties no 1 & 2 that the District Forum did not appoint competent medical expert to assess the surgical procedure adopted by the opposite parties no 1 & 2 to establish medical negligence. The District Forum did not assess the documents and medical evidence critically and there was no cogent evidence to substantiate claim of bile duct injury and leakage. The opposite party no 2 performed the cholecystectomy procedure on 31.05.2012 in accordance with standard medical practice. The arguments advanced by respective counsels for the opposite parties no 1 & 2 are without merit and cannot be accepted. There was no occasion for the District Forum to appoint medical expert for substantiating allegations of negligence against the opposite parties no 1 & 2 que the deceased particularly when MRCP dated 12.06.2012 and CT scan report dated 25.05.2012 indicated in clear terms CBD injury post cholecystectomy. The District Forum and State Commission have considered relevant medical documents in right perspective and direction and gave cogent reasons in arriving at conclusion of medical negligence on the part of the opposite parties no 1 & 2 while conducting cholecystectomy on the deceased on 31.05.2012.

                   17.4 The injury to bile duct most commonly occur during gall bladder surgery is serious and if not promptly diagnosed and repaired can cause death. A doctor is under an obligation to provide high quality, ethical medical care to the patients which involves diagnosis of illness and its appropriate treatment. A doctor is supposed to perform recognized medical procedures with skill and care with follow up actions and also to educate patients about their health. The doctors must treat patients attentively and consciously. The deceased lost life due to negligence of the opposite parties no 1 & 2 which is clearly reflected from medical documents as referred herein above. The deceased was suffering from abdominal pain and consulted the opposite party no 1 and was operated on 31.05.2012 by the opposite party no 2 in the hospital of the opposite party no 1. The opposite parties no 1 & 2 although qualified and experienced doctors did not act like a reasonable man on considerations which ordinarily regulate the conduct of human affairs particularly while conducting cholecystectomy on 31.05.2012 and thereafter in taking post-operative care till 03.06.2012. The opposite parties no 1 & 2 as per Bolam Rule failed to exercise the ordinary skill of an ordinary competent man in the surgical procedure of the deceased. It is not always necessary that in every case the condition of the patient would improve and the surgery is successful to the satisfaction of the patient but the opposite parties have failed to exercise due diligence, care or skill while treating the deceased post- surgery till 03.06.2012. The Supreme Court in Jacob Mathew V State of Punjab clearly observed that a surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial to the extent of 100% for the person operated on and the only assurance which can be given is that he is possessed of the requisite skill in that branch of profession which he is practicing. It is pleaded by the opposite party no 2 that he followed standard medical procedure and protocol and procedure which are acceptable to the medical profession as observed by the Supreme Court in Neeraj Sud & another Vs. Jaswinder Singh (minor) & another that deterioration of the condition of the patient post-surgery is not necessarily indicative or suggestive of the fact that the surgery performed or the treatment given to the patient was not proper or inappropriate or that there was some negligence in administering the same but simultaneously it is established that the opposite parties no 1 and 2 were negligent in conducting cholecystectomy on the deceased on 31.05.2012 and injury to CBD was caused ultimately resulting in death of the deceased. The opposite parties 1 & 2 are guilty of medical negligence as well as deficiency of service while conducting cholecystectomy of the deceased. The District Forum dismissed the complaint against the opposite parties no 3 & 4 against which the complainants did not make any claim in the appeal filed before the State Commission and revision petition filed before this Commission. We accordingly upheld the order dated passed by the District Forum and the impugned order passed by the State Commission to the extent of holding the opposite parties no 1 & 2 guilty of medical negligence and deficiency in service qua the deceased.

18. The District Forum vide order dated 23.04.2013 accepted the complaint with cost of Rs. 10,000/- against the opposite parties no. 1 and 2 and directed the opposite party no 1 to pay Rs. 5,03,600/- being medical expenses and Rs. 50,000/- as compensation along with Rs. 5,000/- as litigation cost and the opposite party no. 2 to pay Rs. 50,000/- as compensation along with Rs. 5,000/- as litigation cost to the complainants. The District Forum further directed that the awarded amount shall be paid in equal shares to the complainants within 45 days from the date of receipt of copy of the order and in case of non-compliance by the opposite party no.l, amount of medical expenses i.e. Rs.5,03,600/- and non-compliance by the opposite party no. 2, the amount of compensation of Rs.50,000/- would carry interest @ 9% pa from the date of the order till realization. The State Commission vide impugned order reduced the medical expenses from Rs. 5,03,600/- to Rs. 3,17,000/- as awarded by the District Forum by observing that the District Forum has calculated the medical expenses wrongly. The opposite parties no 1 & 2 were ordered to be paid medical expenses jointly and severely. The State Commission further ordered that the opposite parties no 1 & 2 shall pay compensation of Rs. 1,50,000/- jointly and severely to the complainants for loss of life of the deceased. The State Commission also enhanced the litigation expenses to Rs.30,000/-. The State Commission partly allowed Appeal bearing no 671 of 2013 filed by the complainants and also disposed of the Appeals bearing no 685 of 2013 and 700 of 2013. The counsels for the complainants while expressing dissatisfaction over the compensation awarded by the District Forum and enhanced by the State Commission argued that compensation be suitably enhanced as the complainants lost love and affection of the deceased.

                   18.1 The Supreme Court in Jyoti Devi Vs. Suket Hospital considered issue of determination of the quantum of compensation. It was observed that a balance in determining comnensation has to be struck between the demands of the person claiming compensation and the interests of those liable to pay compensation in cases of medical negligence. The Supreme Court referred Nizam's Institute of Medical Sciences V Prasanth S. Dhananka, (2009) 6 SCC1 wherein it was held as under:-

                   88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.

                   89. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualised. Life it is said is akin to a ride on a roller-coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard.

                   90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-a-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.

                   18.2 The Supreme Court in Jyoti Devi Vs Suket Hospital refers the concept of just compensation and observed that the idea of compensation is based on restitutio in integrum, which means, make good the loss suffered, so far as money is able to do so, or, in other words, take the receiver of such compensation, back to a position, as if the loss/injury suffered by them hadn't occurred. The Supreme Court further referred Sarla Verma Vs DTC, (2009) 6 SCC 121 wherein it was observed by the Supreme Court that compensation doesn't acquire the quality of being just simply because the Tribunal awarding it believes it to be so. The compensation to be just it must be (i) adequate, (ii) fair and (iii) equitable in the facts and circumstances of each case. The Supreme Court reiterated this proposition in Balram Prasad Vs Kunal Saha, (2014) 1 SCC 384; V. Krishnakumar Vs State of Tamil Nadu, (2015) 9 SCC 388 and Nand Kishore Prasad Vs Mohib Hamidi, (2019) 6 SCC 512. The Supreme Court in Jyoti Yadav V Suket Hospital further observed that to be qualifies as just compensation has to be considered in the facts of each case and the Supreme Court in Balram Prasad was skeptical about using a straightjacket multiplier method for determining the quantum of compensation in medical negligence claims.

                   18.3 The deceased was aged about 60 years at the time of her death. The deceased came to the hospital of the opposite party no 1 on 31.05.2012 with complaint of abdominal pain and after diagnosis was subjected to cholecystectomy conducted by the opposite party no 2. The deceased was inflicted with CBD injury/cut during surgical operation and ultimately died on 05.07.2012 due to negligence of the opposite parties no 1 & 2. The complainants are husband and children of the deceased and lost love and affection of deceased due to her untimely death. The complainants are entitled to receive adequate and suitable compensation from the opposite parties no 1 & 2. The opposite parties are doctors by profession and claimed to be well established. We after considering aggravating and mitigating circumstances of the case are of opinion that compensation awarded by the District Forum and enhanced by the State Commission is not sufficient and adequate in comparison to the loss suffered by the complainants. Accordingly we enhance the compensation to Rs. 5,00,000/- from Rs. 1,50,000/- as awarded by the State Commission vide impugned order along with interest @ 9% from the date of filing of the complaint before the District Forum till realization. We are of view that the State Commission appropriately awarded the medical expenses after reassessing amounting to Rs. 3,17,000/- and litigation expenses amounting to Rs.30,000/- which are accordingly maintained. The opposite parties no 1 & 2 are directed to pay entire awarded amount jointly and severely within 60 days failing which entire awarded amount shall carry interest @ 12% pa till realization. It is also directed that the complainant no 1 being husband of the deceased shall be entitled to receive 25% of total awarded compensation besides awarded medical expenses of Rs. 3,17,000/- and the complainants no 2 to 6 shall be entitled to receive individually 15% (total 75%) of total awarded compensation. The direction given by the District Forum in this regard is accordingly modified.

19. We after considering the material on record are of the considered view that the District Forum and the State Commission has rightly held regarding medical negligence and deficiency in service while conducting cholecystectomy of the deceased on 31.05.2012. The District Forum and the State Commission have given the concurrent findings and scope of the revisional jurisdiction of this Commission is limited. It is accepted legal proposition that National Commission in the exercise of revisional jurisdiction cannot reappreciate the evidence led by the parties like an appellate court. The Supreme Court in Rubi Chandra Dutta V United India Insurance Co. Ltd., (2011) 11 SCC 269 held that the scope of Revision Petition is limited and such powers can be exercised only if there is some prime facie jurisdictional error appearing in the order. The Supreme Court in Sunil Kumar Maity V State Bank of India & others, AIR 2022 SC577 held as under:-

                   The revisional jurisdiction of the National Commission under section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.

20. We after considering rival contentions of the parties comprehensively do not find any reason to interfere in the impugned judgment passed by the State Commission and order passed by the District Forum which are well reasoned. Accordingly, the revision petition bearing no 303 of 2017 titled as Dr. Vivek K. Jain Vs Lakhwinder Singh and others filed by the opposite party no 1 and the revision petition bearing no. 684 of 2017 titled as Hukam Chand Garg Vs Lakhiwnder Singh and others filed by the opposite party no 2 being devoid of merit are dismissed. However the revision petition bearing no The revision petition bearing no. 2982 of 2017 titled as Lakhwinder Singh and others Vs Dr. Vivek K. Jain and others filed by the complainants is allowed to extent of enhancement of compensation as detailed and discussed herein above. The pending applications, if any also stand disposed of.