JUDGMENT - Justice G.G. LONEY, President:—In this complaint, the complainant alleged deficiency and negligence in the service of his medical treatment by the opposite party. The facts in short are that the complainant is an employee of the Government of India as Joint Secretary, Ministry of Law and Justice. The Opponent No. 1 is a medical practitioner and has been attached to O.P. No. 2, the Bombay Hospital as consulting Cardiologist and Hon. Surgeon. The complainant was admitted as an indoor patient in Bombay Hospital on 25-10-1990 as he had developed chest pain. According to complainant, his condition was serious and therefore, he was given emergency treatment by Dr. Eric Borges, the Cardiologist and House Physician attached to Bombay Hospital. The complainant was then admitted to the Intensive Care Unit on 3-11-1990. It is further alleged that after usual tests and examinations, the complainant was advised to go in for operation for "Coronary Artery Bypass Graft Surgery". The condition of the complainant needed immediate operation. On behalf of the complainant, his relative Shri Dayal Shankar Shetty and Shri R.K. Hegde contacted O.P. 1, for fixing the date for operation. He told the complainant's relative that he was totally busy till November, 24th. Opposite Party No. 1, however, agreed to perform the operation but insisted that he should be paid 50% fees in black money and 50% in white money. The O.P. No. 1 also told the complainant's relative that the case be referred to him through Dr. Borges of the Bombay Hospital. Accordingly, Dr. Borges referred the complainant's case for operation to O.P. 1. It is further alleged by the complainant that on 7-11-1990, the aforesaid relatives of the complainant were to contact the O.P. No. 1 through one Dr. M. Balkrishna Alva who would arrange for the operation. The complainant's relatives, therefore, approached Dr. Alva who told the complainant's relatives on behalf of the O.P. No. 1 that the fees of Rs. 25,000/- for operation be paid to O.P. No. 1. As soon as the complainant's relatives agreed for payment of Rs. 25,000/- as fees to O.P. 1, O.P. 1 advanced the date of the operation from 24-11-1990 to 8-11-1990. Accordingly, the complainant was operated on 8-11-1990. After the operation on 10-11-1990, Dr. Alva telephoned to complainant's relative Shri Dayal Shankar and told him that now the O.P. No. 1 is demanding Rs. 40,000/- instead of Rs. 25,000/-. 25,000/- as fees to O.P. 1, O.P. 1 advanced the date of the operation from 24-11-1990 to 8-11-1990. Accordingly, the complainant was operated on 8-11-1990. After the operation on 10-11-1990, Dr. Alva telephoned to complainant's relative Shri Dayal Shankar and told him that now the O.P. No. 1 is demanding Rs. 40,000/- instead of Rs. 25,000/-. The complainant's relatives were surprised with the increased demand of fees by O.P. No. 1. However, they agreed to make arrangements for the higher payment since it was a question of life and death of complainant. It is further alleged that on 14-11-1990, the aforesaid relatives of the complainant told the complainant that Rs. 40,000/- was required to be paid to O.P. 1 as told by Dr. Alva and confirmed by O.P. 1. Ultimately, the amount of Rs. 40,000/- was paid to O.P. 1 by Cheque dated 16-11-1990, drawn on Dena Bank, Bombay in favour of O.P. No. 1. The cheque was personally handed over by the aforesaid relatives of the complainant to O.P.1 for which receipt is passed for 'Postoperative care stitched for three months." The complainant was discharged from Bombay Hospital on 19-11-1990 after 11 days. The complainant further alleged that the O.P. No. 2 admitted him as an indoor patient to the Bombay Hospital for 21 days under package admission which includes all medical charges, operational charges, service charges, etc., which are reimbursed under the Central Government Health Scheme. However, according to complainant, he was required to pay Rs. 38,665/- as operation and other charges to the Bombay Hospital and Rs. 13,081/- as service charges in addition to Rs. 40,000/- to O.P. No. 1. Thus, the complainant alleged that he was required to pay Rs. 91,746/- for his bypass surgery. The complainant alleged that since due to serious nature of his ailment, he was under mental tension and in a disturbed state of mind was unable to take any decision about the financial implications in his bypass surgery and, therefore, he could not question the opposite party No. 1 for the huge payments of Rs. 40,000/- about its propriety, reasonableness or correctness. The complainant, therefore, alleged that he has been required to pay double payment for his pass surgery. 2. 40,000/- about its propriety, reasonableness or correctness. The complainant, therefore, alleged that he has been required to pay double payment for his pass surgery. 2. The complainant further alleged that in December, 1990, the complainant felt pain and increased uneasiness and, therefore, with prior appointment visited the chamber of O.P. No. 1 on 3-12-1990 at his Consulting room at Nepien Sea Road. The complainant was accompanied by his wife and relatives. It is alleged by the complainant that he was required to wait for four hours by O.P. 1 at his consulting room and when after such a long wait, and with no response from O.P. No. 1, giving him appointment, ultimately, entered the Consulting Room of O.P. No. 1 and requested for permission to see him. According to the complainant, the O.P. No. 1 expressed his annoyance and resentment and told the complainant that he could not be forced to touch the patient and if the complainant has any trouble, he should approach Dr. Borges in Bombay Hospital. The complainant placed in a helpless situation pleaded with O.P. 1 that he had paid huge fees for post operative care and, therefore, he need not be directed to see Dr. Borges or others and insisted that he should be treated by O.P. 1. According to the complainant, with great reluctance, the O.P. 1 gave perception for tablets to complainant and asked the complainant to go out. It is the case of the complainant that despite the huge payment of fees of Rs. 40,000/-, paid to O.P. 1 for post operative care', no reasonable, proper and satisfactory service was rendered to the complainant by O.P. 1. According to complainant, O.P. 1 was negligent in his service which caused him great loss and physical injury and he was forced to receive 'post operative care' through other doctors. The complainant has alleged that the pus was oozing out from the chest from the operation site and considerable pus had formed inside the chest. A sample of pus was sent for analysis to Bombay Hospital. The complainant further stated that on 28-1-1991, the complainant again sought the appointment with O.P. No. 1 through Dr. Ravi, who was Assistant to O.P. No. 1 during the operation. However, O.P. 1 was not available and complainant was examined by Dr. Ravi who promised to convey the seriousness of the condition to O.P. 1. The complainant further stated that on 28-1-1991, the complainant again sought the appointment with O.P. No. 1 through Dr. Ravi, who was Assistant to O.P. No. 1 during the operation. However, O.P. 1 was not available and complainant was examined by Dr. Ravi who promised to convey the seriousness of the condition to O.P. 1. Hence appointment of O.P. 1 was sought. The appointment was given on 6-2-1991 at the instance of Dr. Ravi on 6-2-1991 complainant visited O.P. 1. But even after considerable wait, O.P. No 1 did not give complainant any service. On the contrary the complainant had to wait for 2½ hours time with continued pain in his chest and uneasiness. Ultimately, the complainant left the place suffering from great stress due to the indifference shown by O.P. 1. The complainant again tried to contact O.P. 1 through Dr. Shetty yet he could not get any service from O.P. 1. The complainant had to approach other Doctors for his post operative care. He was then treated by Dr. Shetty and Dr. G.N. Rachmale at J.J. Hospital. On 16-2-1991, he was examined and on 19-2-1991, the doctors performed operation and opened his stitches. The doctors at J.J. Hospital found that due to pus formation the 6th rib on the left side of the chest was severely infected and but for the operation on 19-2-1991 the complainant might have lost his life. According to complainant refusal to render "post operative care" by O.P. 1 resulted in endangering the life of complainant which cost him time and money and immense suffering. The complainant had to spend a considerable amount and time for his post operative treatment. But the O.P. 1 did not render him the post operative care as agreed for a consideration of Rs. 40,000/-. The complainant therefore, filed this complaint alleging the deficiency in the service and prayed for refund of Rs. 40,000 and compensation of Rs. 2,00,000/- with interest. The complainant also claimed Rs. 15,000 towards the costs. 3. Both the opposite parties filed their respective written versions. Opposite Party 1 admitted the fact of performing bypass surgery on complainant and also admitted to have accepted the amount of Rs. 40,000/- from the complainant towards "post operative care" on 16-11-1990. He also admitted that complainant had been to him on 8-12-1990 and 6-2-1991. 15,000 towards the costs. 3. Both the opposite parties filed their respective written versions. Opposite Party 1 admitted the fact of performing bypass surgery on complainant and also admitted to have accepted the amount of Rs. 40,000/- from the complainant towards "post operative care" on 16-11-1990. He also admitted that complainant had been to him on 8-12-1990 and 6-2-1991. According to this opponent, he was ever willing to render post operative care to the complainant but the complainant behaved with arrogance and on 2nd February 1991 left his chamber at his own. Inter alia, the O.P. 1 denied the claim of the complainant. According to O.P. 1, since the claim of complainant for Rs. 40,000/- was refused by the Government for purposes of reimbursement, this false complaint has been lodged. This opponent also raised some legal grounds about the maintainability of this complaint to the effect that complainant is not a consumer and consequentially not competent to file the complaint. 4. The O.P. 2, Bombay Hospital Trust in their written reply admitted the fact about the admission of complainant in Bombay Hospital for purposes of bypass surgery under the package scheme for 21 days. However, as regards the payment of Rs. 40,000/-, according to this opponent, they are not concerned about it. In short, this opponent denied deficiency in its service rendered to the complainant. 5. In support of their respective claims, the complainant filed at Ex. 'I'; the charges for the bypass surgery levied by the Bombay Hospital at Ex. 'J', the bill dated 19-11-1990 for the payment of Rs. 40,230/- and the receipt of Rs. 40,000/- at Ex. 'B' paid to O.P. 1 dated 16-11-1990 and other documents. The complainant filed his own rejoinder and his own affidavit and the affidavit of his wife Mrs. R. Hegde, his cousin K. R. Hegde, D.K. Shetty and his wife's relation S.C. Poonja all dated 15-1-1992. The O.P. 1 filed his affidavit dated 3-1-1992 and the two letters addressed by his Counsel to complainant's Counsel. O.P. 2 filed affidavit of one Shiddheshwar, Law Officer dated 4-1-1991. 6. We have also heard oral arguments of Shri Agrawal with Mrs. Oza, Advocate for the complainant, Shri V.V. Tuljapurkar, Advocate for the O.P. 2 and Shri H.D. Pithawala, Advocate for the first opposite party. We have also gone through the relevant documents filed by the respective parties. O.P. 2 filed affidavit of one Shiddheshwar, Law Officer dated 4-1-1991. 6. We have also heard oral arguments of Shri Agrawal with Mrs. Oza, Advocate for the complainant, Shri V.V. Tuljapurkar, Advocate for the O.P. 2 and Shri H.D. Pithawala, Advocate for the first opposite party. We have also gone through the relevant documents filed by the respective parties. Considering the rival claims the following points emerged for our consideration and decision :— 1) Whether the complainant is a consumer and consequently competent to file this complaint? 2) Whether there was any deficiency in the service of the opposite parties and if yes as a result of which the complainant has suffered any loss? At the outset, we would like to note the fairness on the part of the complainant in as much as he has not alleged any negligence on the part of the opposite party 1, in performing the bypass surgery. It was fairly conceded that the opposite party 1 was not negligent in performing the bypass surgery. Similarly, the complainant was very fair in his approach so far as the O.P. 2 is concerned. Although there was allegations in the complaint against O.P. 2, as regards the deficiency in the service, in as much as, instead of 21 days hospitalisation under the package scheme, complainant was discharged with 11 days, yet, the complainant did not make any grievance as regards the deficiency in the service of the O.P. 2. The complainant restricted his complaint as regards the deficiency in the service of the O.P. 1 while rendering "post operative care". 7. The relevant facts about the performance of bypass surgery by O.P. 1 and the acceptance of Rs. 40,000/- as fees for rendering "postoperative care" services by O.P. 1 are admitted. Similarly, the O.P. 1 admitted that complainant visited his Consulting Chamber on 3-12-1990, and 2nd occasion on 6-2-1991. Except the willingness expressed by the O.P. 1 in his written version to render post operative care to the complainant, there is nothing effective and reasonable post operative care service to the complainant. Only on 8-12-1990, O.P. 1 hesitatingly and unwillingly gave a prescription to complainant and advised rest. 8. Except the willingness expressed by the O.P. 1 in his written version to render post operative care to the complainant, there is nothing effective and reasonable post operative care service to the complainant. Only on 8-12-1990, O.P. 1 hesitatingly and unwillingly gave a prescription to complainant and advised rest. 8. Shri Pithawala, the learned Advocate appearing for O.P. 1, has submitted that his client rendered personal service to the complainant which falls under the exception provided under definition "service", appearing in section 2(1)(o) of the C.P. Act, 1986 (hereinafter referred as 'Act'. According to Shri Pithawala, the services of medical practitioner are excluded from the mischief of the C.P. Act on the ground that the services of a doctor are under a contract of personal service. He further submitted that the service of the medical practitioner are dependent from the personal skill of a doctor and they are not amenable within the scope and consideration of the Act. Reliance was placed on a decision of Gujarat State Commission in the case of Consumer Education and Research Society v. Dr. Ratilal B. Patel. In that case, the Gujarat State Commission has taken the view that Surgeon and the Anaesthetist having been rendering "personal service...", they have no jurisdiction to entertain any complaint against the category of such person. With due respect to Gujarat State Commission, we are unable to accept the said view taken by the Gujarat State Commission in view of the decision of the National Commission dated 9-3-1991 in Revision Petition No, 75 of 1990 in the case of "A.C. Modagi v. Cross Well Teller and another." The learned members of the National Commission have taken the view that in a narrower sense there is a personal element in...of services as a 'servant' or 'Ayas services'. However, it has been observed that it will be incorrect and even crude to call the professional or technical services as personal service. The following passage from the aforesaid case are quoted as useful guide to understand the proposition "from the above authorities it is clear that personal services stems from a master and servant relationship which is totally different from a lawyer-client, relationship or technical relationship. The reason for excluding the rendering of service "under a contract of personal service", from the definition of 'service' under the Act is obvious. The reason for excluding the rendering of service "under a contract of personal service", from the definition of 'service' under the Act is obvious. Such an employee can be turned out of service by the Master at will and, therefore, no occasion can arise for the master to complain about the deficiency in rendering of service by the employee. The aforesaid decision of the National Commission is based on the distinction between (a) "contract for service", (b) "contract of service". "In one case, the master can order or require what is to be done while in the other case, he cannot only order or require what is to be done, but how does it shall be shown". The aforesaid observation is quoted from the case decided by Supreme Court in the case of (Dharangadh Mechanical Works Ltd. v. State of Saurashtra and others)1, 1957 S.C. 264 at p. 267. The following paragraphs are also quoted in the aforesaid case by the National Commission :— "In Oxford Companion to Law (page 1134) contract for services has been defined as follows : In Roman Law — location oeris faciendi, the contract whereby one party undertakes to render services e.g. professional or technical services to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion. There are two major groups of such services, professional services of lawyers, accountants, surgeons and the like and technical services of building and engineering contractors builders, garages and many more." In Strouds Judicial Dictionary (page 540, 5th Edn) it is mentioned : "A contract to render services is not the same thing as a 'contract of service', semble, the latter implies some relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance." We may also quote here the following passage accruing at page 268 of the report of the case of Dharangadara Chemical Works (supra) : "The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work..." It was further remarked in the above case (page 268 of the report) : The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton, L.J., at page 549 in (Simmons v. Health Laundry Co.)2, 1990(1) K.B. 543 at Pp. 549, 550. "In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. 549, 550. "In my opinion it is impossible to lay down any rule of law distinguishing the one from the other. It is a question of fact to be decided by all the circumstances of the case. The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service." The following passage from the judgment in (Executive Committee of Vaish Degree College v. Laxmi Narain others)3, A.I.R. 1976 Supreme Court 888 at p. 902 will also be useful for further discussion in the case : "It must be noted that all these doctrines of contract of service as personal, non-assignable, unenforceable and so on grew in an age when contract of service was still frequently a 'Personal relation' between the owner of a small workshop or grade or business and his servant." In the instant complaint the complainant had hired the services of O.P. 1 for a consideration of Rs. 40,000/- was a contract of service and not a contract of personal service. O.P. 1 cannot be said to be an employee of complainant. The master and servant relation between complainant and O.P. cannot be imagined. The ratio of the decision of National Commission in the aforesaid case applies to the facts of this complaint. "Recently we read in the Indian Express dated 19th April, 1992 that the Division Bench Andhra Pradesh High Court consisting Justice M.N. Rao Justice Nedadri Rao have ruled while dismissing a bunch of writ petitions filed by various Medical Practitioners and the Indian Medical Association that the services rendered by private Medical Practitioners and Private Medical Institutions for a consideration falls within the ambit of Consumer Protection Act. Similarly, in First Appeal No. 48 of 1991 dated 21-4-1992 (M/s. Cosmopolitan Hospitals and another v. Smt. Vasantha P. Nair)4, and in First Appeal No. 94 of 1991 (M/s. Cosmopolitan Hospital and another v. V.P. Santha and others)5. The National Commission, New Delhi has ruled that the service rendered by Hospitals and Members of Medical profession for consideration will constitute 'service' as defined in the Consumer Protection Act. The National Commission, New Delhi has ruled that the service rendered by Hospitals and Members of Medical profession for consideration will constitute 'service' as defined in the Consumer Protection Act. The National Commission further ruled that the aforesaid services do not fall within the exempted category of service rendered under a contract of 'personal service'. The National Commission has relied on its earlier decision in the case of (A.C. Modagi v. Cross Well Tailer and another)6, R.P. No. 75 of 90 and reported in II(1991) C.P.J. 586 decided on 9th August, 1991. We are also unable to accept the contentions of Shri Pithawala as regards maintainability of this complaint. Section 2(1)(o) of the Act defines 'service', which is an inclusive definition. Such inclusive definitions are very generally used to enlarge the meaning of words or a phrase/s occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which the interpretation clause declares they shall include. It, therefore, implies that the definition of "service" occurring in C.P. Act includes the services rendered by private medical practitioners and Private Nursing Homes and Hospitals provided it is not a free service. The C.P. Act, 1986 is a beneficial statute enacted by Parliament protecting the interest of the consumers in this country. Therefore, while construing the provisions under this Act, the language which conveys the intention of the Statute has to be accepted. The Supreme Court of India in the case of (Galxo Laboratories v. Presiding Officer, Labour Court)7, 1983 Lab. 3 I.C. 1908 S.C., has held :— "while interpreting a beneficial legislation." In the case of (Andhra University v. Regional P.F. Commissioner of A.P.)8, 1985(4) S.C.C. 509 Supreme Court of India held that the beneficial legislation should be construed liberally." In our view, therefore, in order to advance the object of the beneficial legislation and to thwart the mischief causing hardship to the consumers the service rendered by the opposite party No. 1 falls within the jurisdiction of the Consumer Protection Act, 1986. Hence this complaint is maintainable before this Commission. Hence this complaint is maintainable before this Commission. In our view, the aforesaid decisions of the National Commission and the High Court of Andhra Pradesh clearly show that the contract of service to render post operational care in the instant complaint falls within the scope of Consumer Protection Act. It is a service for consideration and, therefore, the complainant is the consumer of the services which O.P. 1 had agreed to render for a consideration. Consequently, when the deficiency in the service is disputed, there is a consumer dispute and this Commission have jurisdiction to decide it under the provisions of C.P. Act, 1986. Thus, in our view, the complaint is maintainable. 9. Consequent on the maintainability of this complaint, and our finding that complainant had hired the service of O.P. 1, we will now examine whether there was any deficiency in the service of the opposite parties. It is an admitted fact that complainant paid Rs. 40,000/- to O.P. 1, for rendering the post operative care service for a period of three months. We would like to refer to Ex. 'A', case summary dated 23-11-1990 given by Dr. Borges. It will be useful to check the chronological events. The complainant was operated upon by O.P. 1 on 8-11-1990. Rs. 40,000/- were paid by Cheque to O.P. 1 on 16-11-1990 for post operative care for three months. The complainant was discharged from the hospital on 19-11-1990. The complainant had made the payment to O.P. 2 under the package scheme of Rs. 38,665/- towards pay charges ICCU, Open Heart Surgery package, operation theatre charges, medicines used, X-Ray, Laboratory charges, ECG, ECHO Cardiac dopier angiogram coronary, Neuclure medicines, cardiac, scan and medicines and doctors fees. Thus, Ex. 'J' dated 19-1-1990 show that complainant paid Rs. 40,230/- towards the package admission. It will be useful to know what is meant by package admission. We were given to understand that the package admission means an admission in a hospital which includes all charges including the fees of surgeons and the anaesthetist. Ex. 'I' show the charges for the open heart surgery bypass surgery and coronary angiography in Bombay Hospital as on 1-10-1990. The total charges under the package scheme are stated to be Rs. 40,500/- for the hospitalisation for 21 days. Even this Ex. I was not adhered to while preparing the bill Ex. 'J' by the Bombay Hospital. Ex. 'I' show the charges for the open heart surgery bypass surgery and coronary angiography in Bombay Hospital as on 1-10-1990. The total charges under the package scheme are stated to be Rs. 40,500/- for the hospitalisation for 21 days. Even this Ex. I was not adhered to while preparing the bill Ex. 'J' by the Bombay Hospital. In any case, we find that the total fees for the surgeon team and anaesthetist is Rs. 3,500/- only, whereas we find from Ex. J that Dr. Bhattacharya was paid Rs. 1,500/- as a Surgeon. Dr. Borges was paid Rs. 420/- and other two doctors comprising the Surgeon Team were paid Rs. 700/-. Thus under the package admission, the charges for the Bombay Hospital were paid by the complainant vide receipt paying any white or black money to the O.P. 1 to the tune of Rs. 40,000/- towards operation charges. Even the O.P. 1 does not claim that he had accepted Rs. 40,000/- as operation charges. The complainant has alleged that initially he was demanded Rs. 25,000/- by the O.P. 1 and thereafter, he demanded Rs. 40,000/-. Without entertaining into that controversy of white money or black money, the fact remains that O.P. 1 charged and accepted from complainant Rs. 40,000/- for post operative care spread over for a period of three months. The period of three months was to expire from the date of receipt of the money upto 15th February, 1991. The charges were claimed under the billing that the post operative care will be needed. But interestingly we find in Ex. 'A', Dr. Borges has written that the complainant had uneventful post operative care and the patient was discharged on the following line of treatment and to see him after one month with prior appointment. The aforesaid case summary clearly reveals that from the date of discharge i.e. from 19-11-1990 till 23-11-1990, the complainant had uneventful post operative care. It, therefore, follows that since no complications were found at that time, there was no necessity to charge an amount of Rs. 40,000/- to the complainant for post operative care. We are simply astonished to find that O.P. 1 was paid his fees as a Surgeon through Bombay Hospital for operation Rs. 1,500/- and we are unable to know how the post operative care service needed Rs. 40,000/-. 40,000/- to the complainant for post operative care. We are simply astonished to find that O.P. 1 was paid his fees as a Surgeon through Bombay Hospital for operation Rs. 1,500/- and we are unable to know how the post operative care service needed Rs. 40,000/-. In fact, the fees paid to a Medical Practitioner for operation includes post operative care. No separate fees under the heading post operative care can be imagined. It is not the normal practice. The fees for operation of a Medical Practitioner should normally be inclusive of fees of post operative care. A Medical Practitioner cannot claim that the moment he performs an operation his responsibility comes to an end and he owns no duty to care the patient for any post operative responsibility. In fact the Medical Practitioner is under ethical and moral obligation to take care of a patient after he has been operated upon. It is the same Doctor who performs the operation who might expected to know the requirements of a patient after the performance of his operation. It seems to us that O.P. 1 was willing to perform the operation of a Bypass surgery which is a difficult operation for only Rs. 1,500/- and for no work at all as can be seen from Ex. 'A' for uneventful post operative care complainant was charged Rs. 40,000/-. Assuming for a moment that complainant willingly paid Rs. 40,000/- to O.P. 1, then it was the moral, ethical and professional duty of the O.P. 1 to render necessary service to the complainant in the event he need post operative care. Factually, we find that with great reluctance, O.P. 1 saw the complainant on 8-12-1990 and prescribed some tablets for him. It must have taken hardly a minute. But when the complainant had been to O.P. 1 on 6-2-1991 the Doctor did not even show the courtesy to grant the interview to the complainant to know what post operative care was needed by the complainant. The complainant has stated elaborately in his complaint and in his affidavit that he waited and waited for a considerable time and had to leave the premises of the O.P. 1 under anguish. Even on 8-12-1990, the complainant suffered the long wait and the indifference of O.P. 1 to examine him. The complainant has stated elaborately in his complaint and in his affidavit that he waited and waited for a considerable time and had to leave the premises of the O.P. 1 under anguish. Even on 8-12-1990, the complainant suffered the long wait and the indifference of O.P. 1 to examine him. We can understand that first opposite party is an eminent surgeon and expert in his profession, but the eminence of O.P. 1 does not mean that he should be indifferent to the patient. The complainant is an educated person and a Joint Secretary in the Government of India and one cannot expect that he was rude in his behaviour as described by O.P. 1. Except the bald statement of complainant himself, there is no affidavit of any other person supporting the allegations made by the first opposite party about the behaviour of complainant. On the contrary, we find that complainant's allegations about his long wait on 8-12-1990 and 6-2-1991 and the careless attitude of O.P. 1 in treating the complainant on 8-12-1990 has been fully corroborated by the affidavit of Mrs. Hegde and three other relations, viz., K.R. Hegde and D.K. Shetty and S.C. Poonja. Although, these three witnesses are the relations of the complainant, but they have filed the affidavits corroborating the version of the complainant. Merely because the three witnesses of the complainant are relations, we have no hesitation to accept their evidence on affidavit as truthful. It is a common knowledge that when a person is suffering from a serious ailment, the presence of his wife and close relations is very natural. One cannot expect the presence of other independent witnesses on such occasions in accompanying patients in a city like Bombay. We, therefore, find that as against the solitary affidavit of O.P. 1, the allegations made by the complainant as regards the ill treatment given to him by the O.P. 1 has been fully corroborated by his witnesses. Thus, we find that the O.P. 1 not only charged disproportionate, unreasonable amount for post operative care but he rendered, the deficient service to the complainant. We have, therefore, to hold from the facts and circumstances of this case that there was clearly a deficiency in the service of O.P. 1. There is no doubt in our mind that the O.P. 1 was negligent in rendering the postoperative care to the complainant. We have, therefore, to hold from the facts and circumstances of this case that there was clearly a deficiency in the service of O.P. 1. There is no doubt in our mind that the O.P. 1 was negligent in rendering the postoperative care to the complainant. The complainant has stated that due to the carelessness of the O.P. 1, he had to approach the other doctors in J.J. Hospital for his post operative care. The complainant has stated in his complaint as well as in his affidavit that there was pus formation in his chest and he had obtained the X-Ray and removed the pus through other doctors. The medical reports Ex. 'C' dated 19-2-1991 from Bombay Group of Hospital, Bombay, Dr. G.B. Dawar's treatment card dated 16-2-1991 are relevant. The Pathological report Ex. 'D' dated 9-3-1991 report of Radio Isotope Bone Scan dated 28-1-1991 and other numerous papers clearly show that complainant needed postoperative care for removal of his stitches from the Surgical wounds caused due to bypass surgery. The complainant was compelled to approach J.J. Hospital and other doctors not for flimsy reasons but due to the negligence on the part of the O.P. 1 to render necessary service. Thus, all these circumstances accompanied with the affidavit and numerous documents on record positively indicate that the complainant needed postoperative care and, therefore, had to run from one place to another to have the treatment needed and was required to pay additionally. 10. As against this, in the written version of the O.P. 1 it has been stated that he was ever willing to render the necessary postoperative care to the complainant but he did not avail of it except on 8-12-1990. In view of the events elaborated above, we did not find any willingness on the part of the opposite party to render the post operative care. There was no question for the complainant to go elsewhere for post operative care when he had paid the O.P. 1 Rs. 40,000 for the same purpose. The only reply from O.P. 1 is that because he was refused reimbursement by the Central Government for Rs. 40,000/- he has filed his false complaint. It is very difficult to accept this contention of O.P. 1 in view of the fact that complainant, needed the post operative care and had to undergo various examinations and tests for that purpose. The only reply from O.P. 1 is that because he was refused reimbursement by the Central Government for Rs. 40,000/- he has filed his false complaint. It is very difficult to accept this contention of O.P. 1 in view of the fact that complainant, needed the post operative care and had to undergo various examinations and tests for that purpose. Does it mean that in order to create evidence against O.P. 1, the complainant has created all this documentary evidence falsely? 11. Shri Pithawala, the learned Advocate did concede at the time of argument that the fees for the postoperative care is much more than the fees charged by the same Doctor for bypass surgery. However, according to him, the O.P. 1 is an eminent Cardiac Surgeon in Bombay and, therefore, charged Rs. 40,000/-. We have no quarrel about the eminence of O.P. No. 1 in the field of Cardiac bypass surgery. However, we expect human and reasonable approach from O.P. 1 as per medical ethics observed by the Medical practitioners. We are constrained to observe that O.P. No. 1 exhibited indifferent and an uncalled for attitude towards the complainant. We further find that O.P. 1 exhibited lack of good faith and lack of fair dealing with the complainant which caused him serious mental and physical distress. It seems that the complainant no where mentioned about the ability and excellence of the O.P. 1 in the performance of the bypass surgery. In our view the treatment meted out to complainant on 8-12-1990 and 6-2-1991 by OP. 1 really caused hurt and mental distress to the complainant. We, therefore, find that there was negligence in the service of the O.P. 1 which caused the mental and financial loss to the complainant. 12. According to the complainant the amount of Rs. 40,000/- charged by the O.P. 1 was a consideration towards the fees for the operation of his bypass surgery. According to the complainant although the package admission given to him by O.P. 2, the Bombay Hospital the fees for the operation was included in the package fees and, therefore, O.P. 1 could not demand and accept extra fees for the said operation. It has been also canvassed by the complainant that the amount of Rs. According to the complainant although the package admission given to him by O.P. 2, the Bombay Hospital the fees for the operation was included in the package fees and, therefore, O.P. 1 could not demand and accept extra fees for the said operation. It has been also canvassed by the complainant that the amount of Rs. 40,000/- was demanded and accepted by O.P. 1 taking undue advantage of his helpless condition before the bypass surgery was performed but O.P. 1 in order to except from the situation deliberately passed the receipt for rendering "postoperative care for three month". The O.P. 1 admits this situation that the amount of Rs. 40,000/- has been received as a consideration for rendering post operative care for a period of three months. We have reason to believe that the O.P. 1 accepted Rs. 40,000/- through its colleagues towards the fees for operation of bypass surgery. No doubt in package admission the O.P. 1 was paid Rs. 1,500/- for bypass surgery, yet Rs. 40,000/- was demanded towards further fees. We found that O.P. 1 was careless and callous in not granting early attention to the complainant and treatment to the complainant when he was suffering pain in his chest and secondly even after granting interview the complainant was given only a prescription to purchase tablets from outside. The O.P. 1 even did not examine the complainant as regards his chest pain, did not advise him as regards the pus which was formed in his stitches. On the contrary, to add insult to injury, behaved towards the complainant with impropriety and acted rudely. On the next occasion i.e. on 6-2-1991, O.P. 1 refused to see complainant for the post operative care, as a result of which the complainant had to take treatment from one other hospital and different medical practitioners. There is convincing and adequate evidence on record to show that the complainant badly needed the post operative care as pus was formed in his chest region for want of post operative care. The nature and extent of the damage caused due to the formation of pus in the chest region of the complainant was such that in the ordinary course of nature, it was sufficient to cause the death of complainant. In other words, the degree of negligence to render post operative care to the complainant was of serious nature. The nature and extent of the damage caused due to the formation of pus in the chest region of the complainant was such that in the ordinary course of nature, it was sufficient to cause the death of complainant. In other words, the degree of negligence to render post operative care to the complainant was of serious nature. The complainant was required to undergo another operation of the rib from the chest region in which a part of infeded rib was removed. The traumatic situation in which the complainant was placed was the direct result due to the act of omission and negligence on the part of the O.P. 1 to render post operative care to the complainant. Therefore, we are fully convinced that there was gross negligence on the part of O.P. 1 to render necessary service to the complaint which was undertaken by him for consideration. There was imperfection, shortcoming and inadequacy in the nature and manner of performance of post operative care which O.P. 1 has undertaken to perform for consideration of Rs. 40,000/-. Thus the deficiency within the meaning of section 2(1)(g) of the Act has been proved by the complainant in relation to the service rendered by opposite party 1. 13. After hearing the exhaustive argument of both the sides and after careful consideration of the facts and circumstances in this complaint, we are of the view that the complainant deserves compensation for the serious mental distress as a result of negligence in the service of the opposite party No. 1. The complainant has claimed in his prayer clause Rs. 2,40,000/- by way of refund of his payment of Rs. 40,000/- and Rs. 2,00,000/- by way of compensation. The complainant has also claimed the interest the rate of 18% p.a. from 15-11-1990 on the sum Rs. 40,000/-. The complainant has also claimed Rs. 15,000/- as costs. As regards the refund claim of Rs. 40,000/- is concerned, we find that the amount of Rs. 40,000/- was agreed to be paid to the O.P. 1 of the complainant. In our view, it is not possible to refund the amount of fees which was agreed upon on behalf of the complainant to be paid to O.P. 1 towards his fees for post operative care. 40,000/- is concerned, we find that the amount of Rs. 40,000/- was agreed to be paid to the O.P. 1 of the complainant. In our view, it is not possible to refund the amount of fees which was agreed upon on behalf of the complainant to be paid to O.P. 1 towards his fees for post operative care. How much to charge a fee for medical services is the choice of the medical practitioner even though it may appear to be excessive, unreasonable and unjustifiable. Once the patient agrees to pay the fees, even though under compelling circumstances, it will not be proper to order the refund of that amount. However, in view of our finding that complainant suffered serious mental distress as a result of negligence on the part of O.P. 1 in rendering post operative care service, the complainant deserves the compensation. Serious mental distress is a killer element and can cause a variety of deadly ailments in human being which can lead to his death. Therefore, such a loss caused to a patient cannot be counted in terms of money. The complainant has quantified the amount of compensation as Rs. 2,00,000/-. Looking to the sufferings of the complainant and the medical assistance, he was required to seek from other doctors and also had to undergo second operation which could be fatal, the amount of Rs. 2,00,000/- towards compensation appears to be just and reasonable. In this case, we have found that the complainant suffered mental distress and physical sufferings and the negligence on the part of the O.P. 1 was sufficient to cause death in the ordinary course of nature but for medical assistance, he received from other sources. The mental distress and sufferings cannot be measured in terms of money and, therefore, in our view, the complainant deserves the compensation of Rs. 2,00,000/- from the O.P. 1. Since we have declined to refund the amount of Rs. 40,000/- to the complainant, the question of payment of interest does not survive. As regards the amount of costs, in our view, it would meet the ends of justice if the costs of Rs. 1,000/- are granted to the complainant for prosecuting this complainant for prosecuting this complaint. Hence, we pass the following order : ORDER 14. The complaint is allowed. The O.P. 1 is directed to pay to the complainant Rs. 2,00,000 by way of compensation and Rs. 1,000/- are granted to the complainant for prosecuting this complainant for prosecuting this complaint. Hence, we pass the following order : ORDER 14. The complaint is allowed. The O.P. 1 is directed to pay to the complainant Rs. 2,00,000 by way of compensation and Rs. 1,000/- towards the costs. The aforesaid amount of compensation and costs be paid to the complainant within 30 days from the receipt of this order by O.P. 1. Nonpayment of the aforesaid amount within the given time shall carry interest at the rate of 18% P.A. Complaint allowed. *****