Per Doabia, J Does the responsibility of a medical Specialist come to an end after a surgical cut is given or this responsibility continues for post operational care also? It is this aspect of the matter which became the subject matter of the complaint preferred before the State Commission constituted under the Jammu and Kashmir Consumer Protection Act. The Commission has come to a conclusion that deficiency of service stood proved on the part of doctor who conducted the first Laproscopic surgery. It has been observed ... leaving a patient in lurch after first surgery is definitely a deficiency in service. The complainant was allowed a sum of Rs. 2.00 lacs as compensation. Rs. 1.50 lacs was to be paid by the doctor who performed the first operation and Rs. 50, 000 was to be paid by the hospital where the operation was performed. As the respondent No. 1 in the complainant was duly insured with the New India Insurance Company Ltd. the Company was called upon to meet the liability which has been created against respondent No. 1. 2. At this stage, it be noticed that two appeals have been preferred-one appeal has been preferred jointly by the appellant doctor who performed the first operation and by the Insurance Company with whom the appellant doctor is duly insured and the second appeal has been preferred by the hospital where the operation was conducted. 3. Heard learned counsel. Admitted. Before examining as to whether the order passed by the State Commission calls for any interference, the facts as projected by the complainant in her complaint be taken note of. 4. The complainant stated that an advertisement notice appeared in a daily newspaper published from Jammu namely Daily Excelsior. This was to the effect that Bee Enn General Hospital, Jammu, (here-in-after referred to as the hospital) had informed that a Senior Consultant from Delhi would be available for Laproscopic Surgery of Gall Bladder. This advertisement made mention of the fact that only a small cut is required to be made and there is no necessity to go through the rigour of post operation exercise of stitching the wounds. The advertisement also made mention of the fact that the Doctor (here-in-after referred to as the first surgeon) was expert in the subject and is engaged at Apollo Hospital, New Delhi. The advertisement also made mention of the fact that the Doctor (here-in-after referred to as the first surgeon) was expert in the subject and is engaged at Apollo Hospital, New Delhi. On going through the said advertisement, the complainant is said to have approached the hospital and deposited a sum of Rs. 5000/- as advance. She went to the hospital on 16th July 99. There was a pre-operation check up. She was informed that she would be operated upon on 17th July 99. It is stated in the complaint that she was at serial No. 4 in the list of patients to be operated upon on the aforesaid date. She deposited a further sum of Rs. 10, 900 and Rs. 1060/- were deposited for blood testing. The first surgeon removed the stones from the gall bladder of the complainant at 6.30 pm. She was informed that the stones stand removed. She was taken out from the operation theatre and was kept in Room No. 105, which had connection with ICU. The complainant was in pain. The first surgeon who operated upon visited her at 9.30 pm. This fact is stated in para 4 of the complaint. The pain which she was suffering was said to be "agonizing". The first surgeon again visited as the attendants attending the complainant insisted for such a visit. The first surgeon found that the complainant was having high fever. The other doctors from the hospital were called. They were called upon to have a Sonography. The complainant was informed that this pain is a because there is some "oozing inside the belly". When this fact came known to the husband, father and other relations of the complainant, they told the first surgeon to look into it. They wanted to know the reason as to why such a situation had occurred. They were assured that this oozing would stop and there is nothing to worry. When this fact came known to the husband, father and other relations of the complainant, they told the first surgeon to look into it. They wanted to know the reason as to why such a situation had occurred. They were assured that this oozing would stop and there is nothing to worry. In para 4 of the complaint, it is specifically stated that the "respondent No. 1 assured the complainant that he would be ensuring stoppage of oozing by medication and in case oozing did not stop by medication then the complainant may have to undergo some surgery..." It is the case of the complainant that even though the first surgeon came to know that there may be a need for a second surgery, he left for Delhi on 18th July 99 leaving the complainant at the mercy of others. In para 5 of the complaint is mentioned that the first surgeon assured her that he would not leave for Delhi and in case there is a need for surgery he would do the needful.It is the case of the complainant that though there was no improvement but the complainant was assured that there is no need for further surgery and the first surgeon left the hospital from back door. It is further stated that the condition of the complainant deteriorated as oozing continued. A second sonography was conducted. The family doctor namely Dr.R.K.Charangoo also examined the complainant and suggested the course of action which was supposed to be taken. Thereafter the complainant did undergo the second surgery. This revealed that the complainant had received injury on her liver. She was discharged from the hospital on 22nd July 99. By that time she had spent more than Rs. 25, 000/-. It was in these premises, a complaint was filed. Thereafter the complainant did undergo the second surgery. This revealed that the complainant had received injury on her liver. She was discharged from the hospital on 22nd July 99. By that time she had spent more than Rs. 25, 000/-. It was in these premises, a complaint was filed. It has been pleaded:- (i) That the first surgeon, though, aware of the fact that operation conducted by him was not succesful and that it required second surgery, instead of taking care of the complainant, left the hospital through a back door; (ii) That damage was caused to the liver of the complainant; (iii) That the complainant suffered from Haemotoma and active bleeding from liver bell and that there was small tear in the left lobe of her liver; (iv) That even though, the first surgeon knew that there was a need to perform a second operation, this was not done by him and he left the complainant at the mercy of others. The stand taken by the first surgeon be examined. The first surgeon has filed an affidavit. It is stated that he has taken a Professional Indemnity Policy. This was valid from 17th March 99 to 16th March 2000. He stated that he did visit the complainant on the night of intervening 17th July 99 but she was not having any pain. It is stated that he again visited her next day but she was not having any fever. He however, admits that ". on examination of complainant it was felt that another ultra-sound should be done to check if all was well inside. The 2nd Ultra-sound suggested that there had been oozing of blood from the gall bladder bed (raw under surface of the liver from where the Gall-Bladder is removed). The complainants family members were also informed that there was no special cause for oozing, oozing from raw surface is normal after all kinds of surgeries and oozing from Gall bladder bed usually stops within a few hours after surgery provided patient has no bleeding disorder/high B.P. and uncontrolled jaundice. As all tests done before the operation were normal, the examination of the complainant did not suggest any problem, there was little reasons to believe that oozing will restart once the blood had clotted. 5. As all tests done before the operation were normal, the examination of the complainant did not suggest any problem, there was little reasons to believe that oozing will restart once the blood had clotted. 5. It is admitted by the first surgeon that in case oozing starts again, there could be possibility of re-opeartion also for which the deponent was ready as well as respondent-hospital was to provide all the facilities in case of re-operation. It is stated that it was a rare case. According to him, the whole situation was explained to the complainant and her attendants that there was no indication for second surgery and in case there is a need then there is adequate staff with the hospital. In para 7 of the affidavit it is stated that" at about 1 pm the complainant was re-examined by a full team of doctors comprising respondent No. 1, Dr.Pankaj Aggarwal (A Hospital Surgeon), Dr. Kamal (An Anaesthtist), Dr. Atri (Physician and Ultra Sonologist), the collusive discussion led to the conclusion that the condition of the patient is much better than it was in the morning and there was no indication of any ongoing oozing or restart of oozing. This was conveyed to the complainant and her relatives as such there was no indication for 2nd surgery. The deponent informed the patient and her relatives that he was leaving for Delhi and would be in touch with Dr. Aggarwal over the phone." It is further stated that there is no back door in the hospital and the question of first surgeon leaving the back door could not arise. It is further submitted that a second Surgeon in the hospital examined the complainant in the evening. A second ultra-sound which was conducted suggested further oozing. It is submitted that the first surgeon was in touch with the second Surgeon and as such, a decision was taken to perform the second operation. It is stated that the family doctor of the complainant was also consulted that thereafter second operation was conducted. It is submitted that the family doctor assisted the second surgeon during surgery for control of the oozing from the liver Bed. It is further submitted that the blood vessel to the Gall bladder (Systic Artery) that is secured during surgery was intact and not bleeding. There was no injury to any other blood vessel. It is submitted that the family doctor assisted the second surgeon during surgery for control of the oozing from the liver Bed. It is further submitted that the blood vessel to the Gall bladder (Systic Artery) that is secured during surgery was intact and not bleeding. There was no injury to any other blood vessel. It is stated that a small tear in the left lobe of the liver of the complainant was seen it is stated that the tear "Usually takes place when, the left lobe hangs infront of the gall bladder during surgery and has to be constantly moved out of the way." It is further stated that the tear is of no consequence, does not cause any bleeding or any pain and heals up within two to three days. It is stated that there was no extra expenditure incurred for the second operation and extra amount which is said have been spent is incidental. Thus, the stand by the first surgeon is: (i) That he did perform the first surgery; (ii) That he did examine the complainant but this examination was of his own and not because of the agonizing pain suffered by the complainant; (iii) That there was no reason for a second surgery; (iv) That he did inform the complainant and also her relations that in case there is a need for second operation, then this would be done and this was done after due consultation with him; (v) That so far as the removal of stone is concerned, the operation was succesful but there was a small tear in the left lobe of the liver; (vi) That the tear usually takes place when the left lobe hangs infront of the Gall bladder during surgery and this has to be constantly moved out of the way. The tear is of no consequence and does not cause any bleeding or pain and heals up within two to three days. 6. Thus, in para 8 of the affidavit, it is admitted that the left lobe of the liver was damaged. This sometime hangs before gall bladder and has to be constantly moved out of way. Thus the first surgeon was conscious of the fact that injury could be caused to the liver. 6. Thus, in para 8 of the affidavit, it is admitted that the left lobe of the liver was damaged. This sometime hangs before gall bladder and has to be constantly moved out of way. Thus the first surgeon was conscious of the fact that injury could be caused to the liver. He was also conscious of the fact that this injury was caused to the left lobe of her liver because in some cases it keeps on hanging infront of the Gall-bladder and has to be constantly moved out of the way. In para 13 of the affidavit it is stated that first surgeon has performed about 600 operations in Jammu and what has happened is not a case of negligence. 7. The question, therefore, arises as to whether the first surgeon who was aware of a situation that there is a possibility of damage to the left lobe of the liver which sometimes hangs infront of the Gall bladder had taken some precautionary steps and if taken what steps were taken by him while performing the first surgery in order to avoid such a situation. 8. The hospital has also preferred an appeal. It is admitted that there was an advertisement notice and that the complainant was admitted in the hospital. It is admitted that the complainant did develop post operational complications because of oozing of blood. This could not be stopped by medication after the first surgeon had left for Delhi who had advised the second surgeon to remain in touch with the complainant and if need to perform a second surgery. This stand has been taken in para 6 of the grounds of appeal. It is stated that the hospital cannot be made liable because there was no negligence or deficiency in service. It is stated that to prove medical negligence, there must be a positive evidence of medical experts The first surgeon, it is stated is a Micro Laproscopic Surgeon in Apollo Hospital, New Delhi. In any case, it is stated that the hospital could not be burdened. 9. A further plea has been taken by the hospital that the objections were preferred but these objections were not taken into consideration. It is stated that all those facilities which were required to be provided were provided, and therefore, the question of burdening the hospital would not Arise. 10. 9. A further plea has been taken by the hospital that the objections were preferred but these objections were not taken into consideration. It is stated that all those facilities which were required to be provided were provided, and therefore, the question of burdening the hospital would not Arise. 10. There is yet another grievance made by the hospital. It is submitted that the order passed by the commission refusing permission to the hospital to file the reply on the plea that this was filed belatedly has caused manifest injustice to the hospital. In the onjections preferred by the hospital, it is admitted that an advertisement was published. It is admitted that a sum of Rs. 5000 was deposited by the complainant at the first instance. It is further admitted that further amount as indicated in para 3 of the complaint was also deposited by the complainant. It is, however, stated that this respondent does not know as to what transpired between the complainant and the first surgeon. It is admitted that the second operation was performed and the complainant was discharged on 22nd July 99. The findings recorded by the commission are: (i) That during the course of first operation, the lower lobe of the liver was teared; (ii) That this tearing of the liver was on account of the negligence of the first operation. (iii) That the Medical History Sheet supports the plea put across by the complainant; (iv) That the hospital authorities omitted to make mention of the certain factors deliberately from the records maintained by the hospital. (v) That the fact that the complainant was having pain and that she was visited by the first surgeon and that her tempertature was recorded and that even though, the doctor visited her at 6.30 am and then at 9.20 am but these facts have not been mentioned in the medical history sheet; (vi) That the fact that the first surgeon had admitted that he had visited the complainant and the fact that the Medical history sheet does not mention these factors has been commented upon and it has been observed that the medical record was not being properly maintained by the hospital. 11. The further observations made by the commission are that the first surgeon was aware of the fact that there is some problem and it was precisely for this reason Sonography was done. 11. The further observations made by the commission are that the first surgeon was aware of the fact that there is some problem and it was precisely for this reason Sonography was done. It is also observed that the first surgeon came to know of the problem but inspite of that he left the hospital; he took no steps with a view to see to it that the patient who has undergone surgery under him, recoupes and recoupes in a proper manner. The result of the first Sonography has not been mentioned in the history sheet. The commission has also observed that the stand taken by the first surgeon that oozing has stopped at 1 pm is not correct because the complainant was being attended upon. The Commission has opined that the condition of the complainant deteriorated on the evening of 17th July 99 and that was the reason for performing a second operation within 24 hours. The first surgeon was attributed negligence on account of the fact that he having come to know that there was oozing and he having recommended for sonography of the complainant, did not stay back but left for Delhi. negligence has also been attributed to the hospital authorities for not maintaining proper record. 12. No doubt, the objections preferred by the hospital were not formerly taken on the record, but when para 11 of the order passed by the commission is taken note of, it becomes apparent that the version as given by the hospital was duly considered. The prelimnary objection taken by it and the stand taken by the hospital stands duly noticed. Therefore to say that any prejudice has been caused to the hospital on account of first prelimnary order would be of no consequence. This is because, as indicated above, the stand taken by the hospital was taken note of. From the material which has come on the record, it becomes apparent; (i) That the complainant was admitted in the hospital on 17th July 99. This is because, as indicated above, the stand taken by the hospital was taken note of. From the material which has come on the record, it becomes apparent; (i) That the complainant was admitted in the hospital on 17th July 99. She was admitted for the removal of stone from the gall-bladder; (ii) That during surgery, the lower lobe of the liver was teared; (iii) That there was the oozing of blood; (iv) That the first surgeon became aware of the fact that there was oozing and the complainant was in pain and even though, he was aware of the fact that it may require a second surgery, he did not take any step with a view to take further remedial measures and left for Delhi as he had come to Jammu only for a day; (v) That therafter a second operation was performed. The complainant left the hospital on 22nd July 99. 13. At this stage, it would be apt to notice some of the judgements relied upon by the counsel who has appeared on behalf of the first surgeon. The first case which has been relied upon by the counsel for the first surgeon is reported as Neeru Sharma v. Dr. Paul B. Singh, 1994(3) CPR 538. This is a case where the patient was operated upon. It was a case of ceasarian operation. The patient was having pain and dis-comfort. The complainant was unable to establish that the doctor lacked skill and exercise. It was accordingly held that no case for negligence was made out. The decision given by us in the case of Narinder Singh v. Dr. R.D. Sood, CIMA No. 4/2000, decided on 16th May 2002 has also been relied upon. The plea taken by the complainant in the above case was that on account of lack of post operative care, he lost his vision. The finding recorded was that the complainant was having an old problem and the doctor who looked after him was not responsible for the problem which ultimately accrued. It was observed that full care was taken. Another decision on which reliance has been placed is reported as Minaben Yogeshkumar Pathak v. Dr.Kalindiben Dave, 1996(1) CPR 544. In the above case, there was no evidence of negligence, and therefore, liability was not fixed on the doctor. It was observed that full care was taken. Another decision on which reliance has been placed is reported as Minaben Yogeshkumar Pathak v. Dr.Kalindiben Dave, 1996(1) CPR 544. In the above case, there was no evidence of negligence, and therefore, liability was not fixed on the doctor. Yet another decision on which the reliance is being placed is reported as Pravin Laljibhai Vaghela v. Dr. Binoy Palkhivala, 1996(1) CPR 603. In the above case expert was not examined by the complainant and therefore, it was observed that it would not be apt to record a finding that it was a case of negligence. The decision given by the National Consumer Disputes Redressal Commission, New Delhi, II(1996) CPJ 233, Dr. N.T. Subrahmanyam and Anr v. Dr.B.Krishan Rao and Anr, has been relied upon which is a decision for the proposition that a doctor cannot be held guilty of medical negligence because there is an error of judgement. The case reported as Brij Mohan Kher v. Dr. NH Banka and another, I(1995) CPJ 99 has also been relied upon. The above is a case where the National Commission has concluded that negligence on the part of doctor had not been established. 14. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Whether or not he is a registered medical practitioner, such a person who is consulted by a patient owes him certain duties, namely a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give, a duty of care in his administration of that treatment and a duty of care in answering question put to him by a patient in circumstances in which he knows that the patient intends to rely on his answer. a breach of any of these duties will support an action for negligence by the patient." 15. The aforementioned statement of law has been quoted from Halsburys Laws of England, Vol. 30 fourth Edition, page 31 paragraph 34. With regard to the degree of skill and care required from a medical practitioner, what is said in paragraph 35 can also be quoted with advantage. This is being quoted : 16. The aforementioned statement of law has been quoted from Halsburys Laws of England, Vol. 30 fourth Edition, page 31 paragraph 34. With regard to the degree of skill and care required from a medical practitioner, what is said in paragraph 35 can also be quoted with advantage. This is being quoted : 16. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. 17. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (i) that there is a usual and normal practice;(2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care. 18. It is a defence to a practitioner that he acted on the specific instructions of a consultant who had taken over responsibility for the case. Failure to use due skill in diagnosis with the result that wrong treatment is given is negligence. 19. We are conscious of the fact that a charge of professional negligence against a medical man is serious. It stands on different footing as compared with other cases of negligence. The consequence of this are far more serious; it effects the professional status and reputation of the doctor concerned. We are also conscious of what Lord Denning said in Kucks v. Colo, 1968 118 New ER 469. The observations made in the above case are being reproduced below:- "....The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations or medical treatment. A Doctor has not be held negligentsimply because something went wrong. The observations made in the above case are being reproduced below:- "....The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations or medical treatment. A Doctor has not be held negligentsimply because something went wrong. He was not liable for mis-chance or misadventure; or for in error of judgement. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his fields so much so that his conduct might be deserving of censure or inexcusable." We also take notice of what has been said by the Supreme Court in the case of AIR 1969 SC 1238. What was said is being quoted: " The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each caseon what the law requires (ot. Halsburys Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency." 20. In this regard, reference be made to the decision given by the Supreme Court in the case of State of Haryana and others v. Smt. Santra, (2000) 5 SCC 182. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency." 20. In this regard, reference be made to the decision given by the Supreme Court in the case of State of Haryana and others v. Smt. Santra, (2000) 5 SCC 182. What is said in paragraphs 10 to 13 of the judgement is relevant and is being reproduced below : "Negligence is a "tort", Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as "implied undertaking" by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. in Bolam v. Freirn Hospital Management Committee, (1957) 2 All ER 118, MoNair, J. summed up the law as under: "The test is the test of standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. ...in the case of a medical man, negligence means the failure to act in accordance with the standards of reasonably competent medical men at the time. ... there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent." 11. This decision has since been approved by the House of Lords in Whitehouse v. Jordan, (1981) 1 All ER 267; (1981) WLR 246(HL), Maynard v. West Midlands Regional Health Authority, (1985) 1 All ER 635; (1984) 1 WLR 634 (HL) and Sidaway v. Bethlem Royal Hospital, (1985) 1 All ER 643; 1985 AC 871; (1985) 2 WLR 480 (HL). 12. In two decisions rendered by this Court, namely, Laxman Balkrishna Joshi (Dr) v. Dr. 12. In two decisions rendered by this Court, namely, Laxman Balkrishna Joshi (Dr) v. Dr. Trimbak bapu Godbole, AIR 1969 SC 128 and A.S. Mittal v. State of U.P., (1989) 3 SCC 223, it was laid down that when a doctor is consulted by a patient, the former namely, the doctor owes to his patient certain duties which are (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; and (c) a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In a recent decision in Poonam Verma v. Ashwin Patel, (1996) SCC 332 where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : ( SCC p.348, para 42). "42. Negligence has many manifestations -- It may be active negligence, collatral negligence comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se which is defined in Blacks Law Dectionary as under: `Negligence per se -- Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the diotates of common prudence that it can be said without hesitation doubt that no careful person would have beeen guilty of it, As a general rule, the violation of a public duty, enjoined by law for the protection of person or proerty, so constitutes." 13. It was also observed that where a person is guilty of negligence per se, no further proof is needed." In para 16 of the judgement in the above case, reference was made to the decision given in Whitehuse v. Jordan, (1957) 2 All ER 118. What was said in this para is being reproduced below:- "In this judgement, reliance was placed on the decision of the House of Lords in Whitehouse v. Jordan. What was said in this para is being reproduced below:- "In this judgement, reliance was placed on the decision of the House of Lords in Whitehouse v. Jordan. Lord Eraser, while reversing the judgement of Lord Denning (sitting in the court of appeal), observed as under:- "The true position is that an error of judgement may, or may not, be negligent; it depends on the nature of the error. if it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that (such) a man, acting with ordinary care, might have made, then it is not negligence." In Vinitha Ashok v. Lakshmi Hospital, (2001) 8 SCC 731, the view expressed is that a doctor would be liable for negligence in respect of diagnosis and treatment inspite of a body of professional opinion approving his conduct where it is not established to the court satisfaction that such an opinion relied upon is reasonable for responsible.It was observed that it can be demonstrated that professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion is not reasonable or responsible. However, on fact, it was observed that the procedure which was valid and in common use in the State of Kerala and it was observed that on facts, a case of negligence was not made out. In M/s Spring Meadows Hospital and anr v. Harjot Ahluwalia and anr, AIR 1998 SC 1801 which decision has been referred to an the order passed by the Commission, the Supreme Court has observed that .. "very often in a claim for compensation arising out of medical negligence, aplea is taken that it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which could tantamount to negligence cannot be pardoned." 21. The aforementioned decisions clearly bring out that where there is negligence on the part of a doctor, then, it would not only attract statutory liability but it would also amount to deficiency in service and the issue can be examined under the Consumer Protection Laws. 22. The aforementioned decisions clearly bring out that where there is negligence on the part of a doctor, then, it would not only attract statutory liability but it would also amount to deficiency in service and the issue can be examined under the Consumer Protection Laws. 22. The Question in the present case arises as to whether the first surgeon was negligent in the matter of performing the operation. The negligence would have to be looked into from two points of view. One is the negligence during the course of operation and the other is after the operation. 23. The first surgeon is aware of the fact that when Laproscopic surgery is done, then there is every possibility of liver coming in the way and that this has to be taken care of. All that the first surgeon in para 8 of his affidavit stated that tear usually takes place when the left lobe hangs infront of gall-bladder and during surgery it has to be constantly moved out of way. Therefore, the first surgeon was fully aware of the fact that a situation may arise where the liver may hang infront of gall-bladder and this has to be constantly moved out of way. The statement of fact that he had knowledge of the situation is there but the fact as to whether he took any step with a view to remove the left lobe of the liver out of way has not been stated by him. Thus, the first surgeon fully knowing that left lobe may hang infront of the gall-bladder and his taking no step to move it out of the way would lead to an irrestible conclusion that the doctor knew the known practice which is supposed to be followed while doing Laproscopic surgery but took no step with a view to keep the liver lobe out of way. To repeat, the knowledge that such a situation can arise was with the first surgeon but he took no step with a view to keep the left lobe of the liver out of way and no step was taken to constantly move it out of way. Therefore, this is a clear case where the doctor had a knowledge regarding a particular situation which could arise but no step was taken by him to avoid that situation. This is one aspect of the matter. 24. Therefore, this is a clear case where the doctor had a knowledge regarding a particular situation which could arise but no step was taken by him to avoid that situation. This is one aspect of the matter. 24. The other aspect of the matter is that the first surgeon became aware of the situation in which the complainant stood landed. There was oozing, the complainant was complaining of acute pain. This has been described as "agonizing", Sonography was recommended. The first surgeon became aware of the situation that there may be need of second surgery but he without caring for such a situation left for Delhi. He left the complainant to be taken care of by others. The complainant had not bargained for such a situation. She had paid for to be looked-after by a Specialist, regarding whom it was advertised that the concerned doctor is a master of the concerned subject. The first surgeon, as indicated above, was fully aware of the situation and the least which was required by him was to stay back and take care of the problem and the situation in which the complainant was put. There is no doubt that there was active bleeding from the liver bed and a small tear was found in the left lobe of the liver, blood was oozing. This is so mentioned in the medical history sheet maintained by the hospital.Thus, we are not only of the view that there was negligence in the matter of performing first surgery but there was negligence in the matter of giving post operation care also. The first surgeon having become aware of the situation was supposed to stay back as it was under his care, the complainant had bargained to be operated upon. The Commission has commented upon the practice of experts coming from the hospitals outside the city of Jammu where operations are carried on. It is rightly commented upon that they come only for a day and leaves the patients at the mercy of others after the operation, without caring as to whether the operation has been succesful or not, leave this situation. The error in the present case committed by the first surgeon should have been rectified by him but he chose it safe to go back and was in touch with other doctor in the hospital on telephone. The error in the present case committed by the first surgeon should have been rectified by him but he chose it safe to go back and was in touch with other doctor in the hospital on telephone. Thus, we are of the opinion that the commission has rightly concluded that the first surgeon was negligent. 25. Accordingly the appeal preferred by the first surgeon is found to be without merit and is dismissed. 26. So far as the appeal preferred by the hospital is concerned, the commission has rightly expressed an opinion that the hospital record was not being maintained properly. These observations have been made on the basis of the stand taken by the first surgeon who figured as respondent No. 1 in the complaint. The condition in which the complainant was left, was duly noticed and is mentioned in the affidavit filed by the first surgeon but this is not adverted to in the hospital record. This was a factor which was taken note in burdening the hospital with the liability of Rs. 50, 000. The reasoning thus given by the Commission in burdening the hospital with the liability cannot be, in any way, said to be a reasoning which calls for any interference. We, however, observe that the liability in this regard i.e. that liability which has been put on the hospital would be joint and several and the complainant is left free to recover it from the first surgeon. On account of the above observation, there would be an enhanced liability on the Insurance company also. Thus, the appeal preferred by the hospital is also found to be without merit so far as the merits of controversy are concerned but the liability, is being shifted in the manner indicated above. Disposed of accordingly.