ORDER Mr. Justice K.D. Shahi, Chairman—These are two connected appeals one by Dr. Kumud Garg (hereinafter called the appellant) and the other by Sh. Raja Bhatia (hereinafter called the complainant) arising out of judgment and order dated 31.5.2000 whereby the learned Forum has allowed the compensation of Rs. 50,000/- plus Rs. 10,000/- and Rs. 2,000/- as cost of litigation against appellants. While the complainant has filed the appeal for the enhancement of the compensation so granted. Both the appeals arise out of the same judgment and order, therefore, both are taken together for disposal. 2. The brief facts of the case are that the complainant has taken his daughter Kajal of the age of two and a half years to the opposite party for operation of her right eye. According to the complainant Dr. Kumud Garg was working with Shri Ganga Mata Charitable Eye Hospital and Research Institute, Saptrishi Link Road, Haridwar, opposite party No. 2. It is said that the vision in both the eyes was proper but there was some pressure in the right eye for which the complainant had taken his daughter Kajal for treatment to the appellants. After examination Dr. Kumud Garg told that the eye is to be operated upon and the lens is to be fitted. The doctor told him to deposit Rs. 1,800/-, which the complainant deposited on 6.12.1996. Kajal was operated on 6.12.1996 and she was discharged on 7.12.1996. The opposite party gave some medicines. In July, 1997 the complainant got his daughther examined in All India Institute of Medical Sciences, New Delhi where the doctors informed that this was due to the negligence of the doctor who operated upon the eye. On 18.6.1998 as well the victim was shown to Dr. Siddharth Trivedi who also told that this was due to negligent operation. It is said that this has given great mental shock to the complainant and the life of his daughter has also become dark, hence compensation was claimed through the Forum. 3. The opposite party contested the complaint and they took the plea that this is a Public Charitable Hospital, no fee is charged, therefore, the complainant is not a consumer. It is said that on 30.10.1996 the complainant had brought his daughter to the hospital and has informed that her right eye is losing sight. 3. The opposite party contested the complaint and they took the plea that this is a Public Charitable Hospital, no fee is charged, therefore, the complainant is not a consumer. It is said that on 30.10.1996 the complainant had brought his daughter to the hospital and has informed that her right eye is losing sight. The doctors examined her and found that this has got Congenital Cataract and it is to be operated upon. Then on 6.12.1996 the girl was admitted in the hospital and she was successfully operated. On 7.12.1996 it was found that the operation is satisfactory and, therefore, she was discharged. On 9.12.1996 the victim came to the hospital, she was found satisfactory. She was again brought on 9.1.1997 and the doctors regularly visited her whenever she was brought to the hospital. Again she was brought on 2.6.1997, but they did not show the victim to the doctor, opposite party for about 6 months, which created “updrawn pupil” in the eye. Medicines were given to her. It is said that there was no negligence on the part of the doctors. 4. After taking the evidence of the parties, the learned Forum found that there was negligence on the part of the doctors, therefore, allowed the compensation of Rs. 50,000/- plus Rs. 10,000/- expenses of medicines and cost of Rs. 2,000/-. The learned Forum held that it is on 10.6.1998 that updrawn pupil was detected. This shows that the doctors did not inform this fact for about 6 months to the victim or her parents. On 18.6.1998 when Dr. Siddharth Trivedi examined the victim, he found that there was convergent squint in the eye. Although this was not written in the prescription of the appellant dated 10.10.1998. The learned Forum held that it is after the operation that the updrawn pubil disease developed, therefore, the doctors wre negligent. 5. Being aggrieved by this order the present two appeals have been filed. One for quashing the order that there was no negligence on the part of the doctors, and the other for enhancement of the amount of compensation. We have heard the learned Counsels for the parties and gone through the records. The Law of Medical Negligence is very simple as well as very tough. One for quashing the order that there was no negligence on the part of the doctors, and the other for enhancement of the amount of compensation. We have heard the learned Counsels for the parties and gone through the records. The Law of Medical Negligence is very simple as well as very tough. It is simple in the sense that Forum or the Court is to decide whether there was any negligence on the part of the doctor or not and it is tough in the sense that medical science is very complicated and a layman when does not get proper response from the medicines, doctor or operation he starts shouting about negligence. No Lawyer wants that his client should be defeated. He wants that he must get justice. Likewise every doctor wants that his patient should be cured and for that he takes every care which is possible from him. He does what is appropriate in the circumstances of the case and if a doctor has taken reasonable care of a reasonable doctor and if desired result is not obtained then also he cannot be said to be negligent. 6. There are two rulings of State Commissions, in both these rulings the law of negligence had very widely been discussed. In the case of Mrs. Savitri Devi v. Union of India and Others reported in IV (2003) CPJ 164 the Chandigarh State Commission while referring the case of Smt. Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others reported in III (2000) CPJ 18 (NC)=2000 CTJ 814 (CP), quoted an extract from Taylor’s Principles which reads as under : “I myself would prefer to put it in this way : A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by responsible body of medical men skilled in that particular art. Medical science has conferred great benefit of mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advance in technique is also attended by risks”. In para 26 of Mrs. Medical science has conferred great benefit of mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advance in technique is also attended by risks”. In para 26 of Mrs. Savitri Devi v. Union of India and Others, while referring the judgment of Laxman v. Trimbak Bapu Godbole and Others, reported in AIR 1969 SC 128, it has been held by the Hon’ble Supreme Court that, “A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. 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 long 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, 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. But in cases which the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable”. Similarly in the ruling of Ghisa Ram v. Dr. P.K. Bansal & Others reported in IV (2003) CPJ 299, it has been held by the Delhi State Commission in Para 11 quoting the judgment of R. v. Bateman, (1925) 94 LJKB 791 Page 307-08 that “if a person holds himself out as possessing special skill and knowledge and is consulted as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. .... The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient’s death has been caused by the defendant’s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance. If the patient has been killed by his greed, ignorance and unskilfulness. ......As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Sugh cases are likely rare”. In this ruling an another important case-law was also quoted which reads as under, “A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. 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 field so much so that his conduct might be deserving of censure of inexcusable”. 7. We have to see the case in this light. There is nothing in the complaint and in report of any of the doctors, namely Dr. Siddharth Trivedi or the doctors of A.I.I.M.S. that Dr. Kumud Garg should not have operated upon the child. It is not said that she is not an expert eye surgeon or she is a quake. It is also not said that she was not a doctor who is not qualified to do an operation. It is said that there was some pressure in the eye, the victim was shown to the doctor on 30.10.1996 and the doctor gave the prescription. The prescription is very clear and this was a Congenital Cataract. This prescription was filed by the complainant himself before the Kearned Forum. Congenital Cataract is defined in the medical glossary to mean acquired prior to or at birth, or during developoment as a fetus. Thus the disease of the victim was reported by the doctor as disease by birth. It is not said by the complainant that this prescription is incorrect. It may be said easily that there was some problem and the sight was proper but the prescription cannot be taken to be an incorrect one. The book Modern Ophthalmology edited by Dr. L.C. Dutta, Formerly Professor and Head Regional Institute of Ophthalmology, Guwahati Medical College, Guwahati, Assam can be taken as an expert’s opinion which shows that in unilateral congenital cataracts at whatever age they may be found, the likelihood of there being amblyopia is good and there are chances that the post operative vision is invariably affected. It has further been given in this book at page 381 that the ideal time for surgery is as soon as possible. If it is a newborn, the next day after birth would be the correct time. 8. It has further been given in this book at page 381 that the ideal time for surgery is as soon as possible. If it is a newborn, the next day after birth would be the correct time. 8. The expert’s opinion shows that if it was a case of congenital cataract it should have been operated upon as early as possible and the doctor cannot be said to be guilty of negligence if she has chosen to operate the eye. Even Dr. Siddharth Trivedi or the doctors of A.I.I.M.S. never reported that it should not have been operated upon. 9. We have gone through the complaint. The negligence has been atributed merely on the ground that Dr. Siddharth Trivedi and the doctors of A.I.I.M.S. told that the defect in the eye is due to careless and negligent operation. There are prescriptions of both the doctors. We are not to be swayed by what the doctors are said to have told but we have to believe what these two doctors have written. These doctors did not file any affidavit that they ever told that the disease was due to negligent operation. 10. The prescription of Dr. Siddharth Trivedi is on the record. He has written this is to certify that Km. Kajal has been examined by me. Her right eye was operated upon in December, 1996. She has sub normal vision in her operated eye with convergent squint. Dr. Trivedi did not write even a single word that there has been any negligence, carelessness or even mistake in the operation. The fact that when Dr. Kumud Garg examined the girl for operation she had found that there was no glow in the right eye, no glow means no sight. The sight has improved after operation. Because where there was earlier no glow, when Dr. Trivedi examined he found sub normal vision in her operated eye. Not only this when the girl was shown in the A.I.I.M.S. there was found poor glow, a better case than no glow. None of these two doctors have told that there was no congenital cataract. 11. It is true that has been updrawn pupil, it may be side effect. It may be due to the fact that for about 6 months no treatment was given by the complainant but no doctor have reported that it is due to any carelessness or negligence of the doctor. 12. 11. It is true that has been updrawn pupil, it may be side effect. It may be due to the fact that for about 6 months no treatment was given by the complainant but no doctor have reported that it is due to any carelessness or negligence of the doctor. 12. The learned Forum as well the complainant wanted to say that there was updrawn pupil or squint has developed, therefore, there can be a presumption that this was due to the negligence of the doctor. But they did not appreciate the fact that the experts opinion is that there may be post operative amlyopia and in the same book of Dr. Dutta at page 750 it is specifically been mentioned that “Unilateral organic ocular pathology that affects the visual acuity in one eye may cause convergent squint in that eye. Therefore, a routiue examination of the eye under a mydriatic must be done in all cases of strabismus. Cases of unilateral central corneal leucoma, congenital or traumatic unilateral cataract, chorioretinal inflammation involving the macular area, optic atrophy produce convergent squint in the affected eye. All these pathologies present a severe obstacle to sensoryfusion or may abolish the fusion mechanism altogether. Depending on the age of the child (at the time of visual loss) esotropia or exotopia may develop in that eye. In children below the age of 5-6 years, these factors generally produce a convergent squint and in those above the ages of 8-9 years, the very same factors are likely to produce a divergent deviation in that eye”. 13. Nothing has been said about what care the doctor was desired to have taken and he did not take. Nothing has been said what has not been done by the doctor which she should have done. It is not at all said how the doctor has been negligent. Merely because the operation did not totally succeed, the doctor cannot be said to be negligent. She has done whatsoever was expected of her in the disease like this one and there was absolutely no negligence on the part of the doctor. 14. The question that complainant is not a consumer was also raised although of little importance. Rs. Merely because the operation did not totally succeed, the doctor cannot be said to be negligent. She has done whatsoever was expected of her in the disease like this one and there was absolutely no negligence on the part of the doctor. 14. The question that complainant is not a consumer was also raised although of little importance. Rs. 1,800/- have been deposited by the complainant may be in the form of donation on the day of operation itself, that is nothing but a method of taking the fee in different form. The complainant is definitely a consumer but she will not get any relief unless she proves that there has been any negligence on the part of the doctor. No negligence has, at all, been proved against the doctor. Therefore, the order passed by the learned Forum is factuallly incorrect and legally not sound and is to be quashed. The complaint deserves only dismissal. 15. There is no question of the enhancement of compensation because no negligence is proved although the case of the complainant may be pathetic but at the same time without proof of any negligence the doctor cannot be punished for no fault of her. ORDER The appeal of Dr. Kumud Garg is allowed. The judgment and order dated 31.5.2000 is hereby set aside. The complaint is dismissed. The appeal of Sh. Raja Bhatia is hereby dismissed. Cost throughout shall be easy. Appeal No. 196/2003 allowed. ___