JUDGMENT The first defendant in O.S.No. 12388 of 1988 on the file of the V Additional Judge, City Civil Court, Hyderabad, Mahaveer Hospital and Research Centre, filed the present appeal as against the judgment and decree dated 13-09-1995 made in the aforesaid suit. 2. The plaintiff in the said suit is shown as 1st respondent and the 7th defendant-doctor, who had operated the patient, is shown as the 2nd respondent in the present appeal. 3. Heard Smt. K. Udayasree, learned counsel representing the appellant-first defendant, Sri Narayana Rao learned counsel representing the first respondent-plaintiff and Sri Subramanayam Reddy, learned counsel representing the 2nd respondent-7th defendant. 4. Smt. K. Udayasree learned counsel representing the appellant had taken this Court through the respective pleadings of the parties, the evidence of P.W.1 and D.Ws.1 and 2 and also Exs.A -1 to A-19 and B-1 to B-4 and would contend that it is not a case of medical negligence since the suit was dismissed as against the 7th defendant, the doctor, who had operated on the plaintiff-patient. The learned counsel also would submit that the question involved in the matter is whether the steel rod, prosthesis, EX.A-11 supplied for the purpose of patient being operated is of substandard quality, so as to fasten the appellant with the liability. The learned counsel had pointed out except the evidence of P.W.1 there is no evidence available on record. Though D.W.2 in his chief-examination made an attempt to support the version of the plaintiff to some extent in cross-examination he had given a go-by and in the light of the same the hospital as such cannot be made liable, hence the appeal to be allowed. 5. Sri Narayana Rao learned counsel representing the 151 respondent-plaintiff would submit that the patient is a laywoman who has no knowledge about the standard of the surgical instruments or otherwise. The learned counsel also had taken this Court through the evidence of P.W.1 and also the evidence of D.W.2 and would submit that it may be that in other cases there were no complications but only due to the substandard of EX.A-11 the problems arose, hence, the compensation awarded is just and reasonable. 6. The learned counsel also had taken this Court through the evidence of P.W.1 and also the evidence of D.W.2 and would submit that it may be that in other cases there were no complications but only due to the substandard of EX.A-11 the problems arose, hence, the compensation awarded is just and reasonable. 6. Sri Subramanayam Reddy the learned counsel representing the 2nd respondent-7th defendant would contend that the plaintiff patient has no grievance at all as against the doctor, she reposed confidence in the doctor as she was again operated by the self-same doctor and she was satisfied with the services of the doctor and hence the dismissal of the suit as against the 7th defendant is well justified. 7. Heard the learned counsel on record. 8. For the purpose of convenience, hereinafter the parties would be referred to as 1st defendant, plaintiff, and 7th defendant respectively. 9. The plaintiff filed the suit for recovery of damages of Rs. 2,50,000/- with interest at the rate of 12% per annum from the date of suit till the date of realization and for costs. The suit was decreed as against the defendants 1 to 6 only for a sum of Rs. 1,50,000/- with costs and the suit was dismissed as against the 7th defendant without costs. 10. It was pleaded in the plaint as hereunder: "the plaintiff is the resident of Warangal, she along with her husband Alladi Shankerlingam came to Hyderabad on some personal work 20-2-1987. On the next day when both of them were going towards Tankbund from Hyderabad Nursing Home to reach Secunderabad station, the plaintiff met with an accident with Auto-Rickshaw. Immediately she was taken to M.G.M.Hospital, Secunderabad and admitted there as inpatient. The hospital authorities reported the same to the concerned police on which FIR was issued. As the Doctors were on strike, the plaintiff was shifted to Mahaveer Hospital on 23-2-1987 and was admitted there as in-patient in bed No.311. The defendant authorities advised her to get the fractured hip bone operated. The plaintiff accepted for the same and paid necessary charges of Rs.7,598/-. The operation was done by defendant No.7, and the plaintiff was discharged from the hospital on 30-4-1987. The Doctors while conducting the operation has placed a steel rod in hip bone. The said rod was provided by the Hospital authorities. The plaintiff accepted for the same and paid necessary charges of Rs.7,598/-. The operation was done by defendant No.7, and the plaintiff was discharged from the hospital on 30-4-1987. The Doctors while conducting the operation has placed a steel rod in hip bone. The said rod was provided by the Hospital authorities. The defendant No.7 without taking minimum care of the quality of the metal or taking assurance from the hospital authorities about the quantity (sic. quality) of the material used, has inserted the metal rod. The defendant NO.7 who was employee of the hospital authorities, is also collectively liable along with the other defendants from (sic. for) the payment ofdamages.lnthe3rdweekof July, 1987 the plaintiff suffered swelling and bubbles on the operated part, which led the plaintiff to unbearable mental and physical torture. Because of the puss secreted in the swellings, the plaintiff suffered much mental and physical agony. When the plaintiff consulted Dr. Ashok Kumar, an Orthopaedic Surgeon at Warangal for treatment, he advised the plaintiff to approach the defendant No.7, who conducted the operation in earlier occasion. On his advice, the plaintiff approached the defendant No.7, his diagnosis was that the swellings and bubbles appeared on the operated portion were of the secondary infection which was due to the metal reaction of the steel rod during the course of the operation. Further he advised the plaintiff to get the rod removed and for that he advised the plaintiff to get admitted in Durgabai Desmukh Hospital. Accordingly on 30-8-1987 she was admitted in the said hospital and the rod was removed by conducting operation on 8-9-1987. For all these, the plaintiff incurred expenditure of Rs. 50,000/- and suffered mentally, physically and financially because of the substandard metal rod being used and placed in the hip bone on 2-3-1987 by the defendant authorities. The plaintiff is unable to walk properly and is still limping and there is permanent disability due to the negligent act of the defendant authorities, as mental rod inserted was of substandard quality and the rod got rusted and led to secondary infection. The hospital authorities have also committed breach of contract by not placing a standard or purified steel rod. The plaintiff got issued a legal notice on 3-11-1987 claiming Rs.2,50,000/towards damages which was acknowledged by the hospital authorities on 9-11-1987 but did not respond. The hospital authorities have also committed breach of contract by not placing a standard or purified steel rod. The plaintiff got issued a legal notice on 3-11-1987 claiming Rs.2,50,000/towards damages which was acknowledged by the hospital authorities on 9-11-1987 but did not respond. Hence she got issued another legal notice for which also there was no reply. 11. Defendants 1 to 6 had resisted the suit claim and narrated that the plaintiff was admitted in the hospital on 23-02-1987 and was operated on 02-03-1987 and was discharged on 30-04-1987. It was also further pleaded that the plaintiff paid bill of Rs.7, 598/-. Defendants 1 to 6 also pleaded that the plaintiff was not immediately attended with suitable treatment after accident. Therefore the infecting organisms which are normally present in gut, teeth and other parts of the body became active after the injury and caused infection of injured tissues of the body at a later date when the body-resistance of the patient became low due to causes like prolonged fever, use of antibiotics, etc. From the date of admission till she was discharged, she was treated vigorously by antibiotics operative procedures including placing of steel rod and dressing. At the time of discharge of the patient, her general condition was satisfactory. Reputed firm supplied the steel rod and the insertion of the steel rod was done by the reputed Surgeon. The rod was of standard quality and the 7th defendant after verifying the quality only, inserted the steel rod. It is denied that the plaintiff incurred expenditure of Rs. 50,000/- after her discharge from the hospital. Consequently the infection was caused due to various reasons such as low resistance of patient, use of antibiotics, infection to the teeth bowl or any hidden focus anywhere in the body. The organisms normally do not cause infection. They do cause infection whenever the immunity is compromised. Some individuals are prone to foreign body reaction on account of which the rod requires to be removed. Mere removal of rod, even assuming to be correct, would not be a conclusive proof that the road was defective. Rods are being removed for various reasons. The steel rods supplied by the company are used by many hospitals in the Country and they are found to be safe and they are of good standard. The rod was sterilized properly before it is inserted. Rods are being removed for various reasons. The steel rods supplied by the company are used by many hospitals in the Country and they are found to be safe and they are of good standard. The rod was sterilized properly before it is inserted. The operation theatre techniques in Mahaveer Hospital are of international standards. The cases required kidney transplantations are regularly performed in the hospital and some foreigners are also undergoing this operation in this hospital. It is a common knowledge that kidney transplantation surgery required high degree of sterilized atmosphere in the operation theatre. More than 220 cases of Kidney transplantations were done without infection in the hospital. The defendant hospital has taken all possible care which is expected by a hospital. When the hospital has discharged its duty by taking all precautions and standards of reasonable medical care, it cannot be said that the hospital authorities or the Doctors have acted in a negligent manner. The Doctor who conducted the operation is an expert Orthopedic Surgeon who has performed the operation by exercising skill and care, which is expected by a Doctor of his class. The defendant hospital did not reply the notice of the plaintiff because they were with false allegations. There was no breach of contract nor was there any defect in placing the steel metal road. 12. The 7th defendant also resisted the-suit claim and it was pleaded in his written statement as hereunder: "No notice was issued to the defendant NO.7 before filing of the suit. The defendant NO.6 has requested this defendant to conduct the operation. For the first time on 2-3-1987 the defendant conducted operation in the said hospital on the plaintiff on 2-3-1987, under the care of the 6th defendant. Prosthesis was inserted at the upper end of thigh bone after duly removing the fractured head of the femur. Whenever defendant NO.7 conducted an operation of the type he conducted on the plaintiff he was insisting upon using prosthesis manufactured by INOR. The defendant No.7 asked for the prosthesis manufactured by INOR. Prosthesis was inserted at the upper end of thigh bone after duly removing the fractured head of the femur. Whenever defendant NO.7 conducted an operation of the type he conducted on the plaintiff he was insisting upon using prosthesis manufactured by INOR. The defendant No.7 asked for the prosthesis manufactured by INOR. The hospital authorities intimated to him that INOR prosthesis of the size required for insertion in the operation of the plaintiff was not available anywhere in the market and produced prosthesis purchased from the local market and assured the defendant No.7 that the said variety of prosthesis is being used in almost all the hospitals through out the country and is almost of the same standard as prostheses of INOR. After taking such as an assurance from the first defendant hospital authorities the defendant No.7 made use of the prosthesis made available by the hospital authorities in the operation conducted on the plaintiff. He has taken all the care expected of a Surgeon and is not liable for any damages whatsoever. The plaintiff and her husband had ample faith and belief in the capacity, integrity and sincerity of the defendant No.7 in treating his patients and even now they approach the defendant No.7 time and again for the treatment of the plaintiff. Thereafter the defendant No.7 diagnosed that the swelling and bubbles appearing on the operated portion are due to secondary infection, and not due to the reaction of the prosthesis inserted. It cannot be described as of substandard quality. The fact that the plaintiff got herself operated for the second time itself shows that the plaintiff was satisfied with the professional care, attention and treatment given by the defendant No.7. Otherwise, she would not have subjected herself for a second operation in the hands of the defendant No.7. Even now as already stated the plaintiff has been periodically consulting defendant NO.7." 13. On the strength of the pleadings of the parties, before the trial Court, the following issues were settled. "1. Whether the plaintiff is entitled to claim damages with future interest at 12% p.a. against the defendants as prayed for? 2. Whether the plaintiff suffered bodily and mental pain due to placement of substandard steel rod in the hip bone? 3. Whether the rod supplied by the hospital authorities is the standard quality? 4. "1. Whether the plaintiff is entitled to claim damages with future interest at 12% p.a. against the defendants as prayed for? 2. Whether the plaintiff suffered bodily and mental pain due to placement of substandard steel rod in the hip bone? 3. Whether the rod supplied by the hospital authorities is the standard quality? 4. Whether there is any breach of contract, negligence, carelessness on the part of the defendants as alleged? 5. Whether the suit is barred by limitation? 6. Whether the plaintiff incurred an amount of Rs.50,000/- due to secondary infection? 7. Whether the plaintiff is limping and sustained a permanent disability due to the negligent act of the defendants? 8. Whether the defendant No.7 is a proper and necessary party to the suit? 9. Whether the plaintiff is entitled to claim any damages against D-7 inasmuch as she has reposed confidence in D-7 and got herself operated by him? 10. To what relief? 14. The plaintiff examined herself as P.W.1 and Exs.A-1 to A 19 were marked. On behalf of the defendants D.Ws.1 and 2 were examined and Exs.B-1 to B-4 were marked. 15. In the light of the respective pleadings of the parties, the evidence available on record and the findings recorded by the trial Court, the following points arise for consideration in the present appeal. 1. Whether the findings recorded by the trial Court decreeing the suit for Rs. 1,50,000/- with costs as against the defendants 1 to 6 be sustained or to be disturbed in any way in the facts and circumstances of the case? 2. If so, what relief the parties are entitled to? 16. Point No.1:- At the outset, it may be stated that though question of limitation was raised, the same had not been seriously canvassed and hence the said question is left untouched in this appeal especially in the light of the findings recorded by the trial Court while answering issue No.5. 17. 16. Point No.1:- At the outset, it may be stated that though question of limitation was raised, the same had not been seriously canvassed and hence the said question is left untouched in this appeal especially in the light of the findings recorded by the trial Court while answering issue No.5. 17. The facts as reflected from the respective pleadings of the parties are clearly evident as already referred to supra: The case of the plaintiff is that on 21-02-1987 the plaintiff met with an accident on Tankbund and was shifted to Gandhi hospital, Secunderabad and due to doctors strike she could not get proper treatment and she was taken to the appellants hospital on 23-02-1987, where she was operated by the 7th defendant, and was discharged from hospital on 30-04-1987. It is also the case of the plaintiff that in the month of July, 1987 she developed some swelling and bubbles on the operated part and she again approached the 7th defendant and on his advice she was admitted in Durgabai Deshmukh Hospital, Hyderabad on 30-08-1987 and was re-operated on 08-09-1987 by the self-same doctor-7th defendant and the prosthesis rod had been removed, which had been planted earlier. Thereafter, in the month of March, 1991 the plaintiff also had taken treatment at Christian Medical College and Hospital at Vellore. In the said circumstances, the plaintiff claimed damages for Rs.2,50,000/- with interest at 12% per annum from the date of suit till the date of realization. Here, the specific case of the plaintiff is that on account of the substandard prosthesis, steel rod, Ex.A-11, placed in the hipbone, she had suffered mentally, physically and financially leading to permanent disability in her walking capacity and the same occurred due to negligence on the part of the defendants. PW.1, the plaintiff deposed about· the details how she was admitted in the hospital in question and how she was operated by Dr. P. RangaChary, the 7th defendant. She also deposed that Dr. Patwari, Srinivas and Kuranna, assisted the 7th defendant during the operation, and she incurred a sum of Rs.7,598/-. She further deposed that one steel rod was inserted in the hipbone, which was part of operation and the said rod was supplied by the Mahaveer hospital. P. RangaChary, the 7th defendant. She also deposed that Dr. Patwari, Srinivas and Kuranna, assisted the 7th defendant during the operation, and she incurred a sum of Rs.7,598/-. She further deposed that one steel rod was inserted in the hipbone, which was part of operation and the said rod was supplied by the Mahaveer hospital. She remained in the said hospital for two months ten days, thereafter she was discharged and went to Warangal and pain was increased because of which she was unable to walk. She suffered swelling and bubbles on the operated part and suffered unbearable mental torture. P.W.1 also consulted Dr. Ashok Kumar, an Orthopedic Surgeon, at Warangal and he advised her to approach the 7th defendant, who had done the operation and also told her that due to inferior quality of the steel rod inserted in the hipbone the problem arose. She also deposed that she came to Hyderabad again for consulting the 7th defendant, who advised her to admit herself in the Durgabai Deshmukh hospital, Hyderabad and she was admitted in the said hospital on 30-08-1987 and that on 08-09-1987 the 7th defendant conducted another operation and removed the steel rod, which was inserted at Mahaveer hospital. She further deposed that she incurred a sum of Rs.50,000/- as additional expenditure. She also deposed that the 7th defendant also opined that all this was due to the substandard quality of the metal, which was inserted in the hip bone and due to negligence on the part of the doctors at Mahaveer hospital. Thus she claimed the damages and she also deposed about the issuance of legal notice and issuance of second notice and further deposed that there was no reply. This witness also deposed about the documents EX.A-1 to A-19 and was cross-examined at length. 18. In cross-examination, P.W.1 denied several suggestions put to her and deposed that EX.A-11 was inserted by the 7th defendant. She specifically denied that EX.A-11 was removed on account of septic of not being adjusted to her body and after removal of EX.A-11 she had relief. However, she deposed that she does not know whether in D-1 hospital hundreds of operations of this kind are being conducted but however she had denied other suggestions in relation thereto. She specifically denied that EX.A-11 was removed on account of septic of not being adjusted to her body and after removal of EX.A-11 she had relief. However, she deposed that she does not know whether in D-1 hospital hundreds of operations of this kind are being conducted but however she had denied other suggestions in relation thereto. Here itself, it may be stated that except the evidence of P. W.1 there is no other evidence available on record and she had not chosen to examine Dr. Ashok Kumar who referred her to the 7th defendant. Dr. L.N. Rao, D.W.1 deposed in detail about Dr. Ranga Chary, the surgeon and also about the treatment given. This witness specifically deposed that the surgical instruments would be supplied to the patients and they maintain the register for every type of equipment including the rods available in the hospital. Ex. B-1 shows that there were five rods available which were issued between 02-03-1987 and 11-10-1989 when new rods were purchased. The rod that was purchased on 02-03-1987 was requisite and the same was inserted by Dr. Ranga Chary. This witness deposed that except the plaintiff, no others complained about the said incident and the insertion of the rods are routine in any major hospital, including Mahaveer hospital. This witness further deposed that Ex. B-2 is the entry in the Duty Registers. As per Ex. B-2, the 7th defendant was in service of that hospital till the month of November 1989. This witness also deposed that he was aware of the complaint given by the plaintiff that the operation was not done properly and the material (rod) was not proper and of inferior quality. However, as per the records there is no evidence of any complaints of other patients regarding the use of similar rods or equipments. This witness was cross-examined by the 7th defendant and this witness deposed that the equipment provided by the hospital is of good quality and EX.A-11 is also of good quality and similar rods are being used in the hospital and there are no complaints and the 7th defendant had taken all precautions while operating and he is an eminent surgeon. This witness was cross-examined and certain suggestions were put to him, which were denied. 19. This witness was cross-examined and certain suggestions were put to him, which were denied. 19. The evidence of D.W.2, the 7th defendant in the suit is crucial as already referred to supra and as against the 7Jh defendant, the suit was dismissed. This witness deposed about his qualifications and also deposed about the quality of Ex.A-11, which had been supplied and further deposed that P.W.1 was referred by one Dr. Ashok Kumar of Warangal. This witness also deposed that when he examined her, she had some blisters and bubbles on the operated area on account of secondary infection. D.W.2 also deposed that he operated P.W.1 in Durgabai Deshmukh Hospital and he removed EX.A-11, the Prosthesis and at that time there was certain amount of corrosion on the Prosthesis. He also deposed that after the surgery, he changed his opinion that the blisters and Synothesis were not due to secondary infection, but the same could have been due to corrosion. This witness also deposed that P.W.1 was totally satisfied with the service rendered by him. It is no doubt true that on careful reading of the chief-examination, in the concluding portion, D. W.2 made an attempt to support the version of the plaintiff to some extent. This witness was cross-examined and this witness in cross-examination deposed that the prosthesis which had been given to him was correct and the prosthesis which he wanted was not supplied and the Prosthesis supplied by D-1 hospital is also good. In several similar cases such supply by the hospital had been used and there were no complaints from other patients. This witness was also cross-examined by the plaintiff. After cross-examination by the plaintiff this witness was again cross-examined by D-1 to D-6. This witness deposed as hereunder. "I would not have inserted if I was aware that it was of inferior quality. It is only the matalogical analysis that would establish the quality of Prosthesis." 20. On appreciation of the evidence available on record it is clear that it is not a case of the negligence of the doctor in conducting the operation which had been complained of but the inferior quality of EX.A-11 which had been supplied by the 1st defendant for the purpose of carrying on with the operation. On appreciation of the evidence available on record it is clear that it is not a case of the negligence of the doctor in conducting the operation which had been complained of but the inferior quality of EX.A-11 which had been supplied by the 1st defendant for the purpose of carrying on with the operation. In Grant v. Australian Knitting Mills Ltd.1 Lord Wright while dealing with the standard of care and duty to care, observed as follows: "All that is necessary as a step to establish the tort of actionable negligence is to define the precise relationship from which the duty to take care to be deduced. It is, however, essential in English law that the duty should be established, the mere fact that a man is injured by anothers act gives in itself no cause of action, if the act is deliberate, the party injured will have no claim in law even though the injury is intentional, so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists". In Dr. Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakasu and another, the learned judge of this Court, observed as under: Negligence constitutes an independent basis of tort liability. Law imposes a duty on every one to conform to a certain standard of conduct for the protection of others. In the case of persons who undertake work requiring: "Special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession." (See John G. Flemmings "The law of Torts", Fifth Edition at p.109) Failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the defendants conduct and the resultant injury. A surgeon or anaesthetist will be judged by the standard of an average practitioner of class to which he belongs or hold himself out to belong. In the case of specialists a higher degree of skill is called. A surgeon or anaesthetist will be judged by the standard of an average practitioner of class to which he belongs or hold himself out to belong. In the case of specialists a higher degree of skill is called. The civil liability of medical men as held in R. v. Beteman ((1925) 94 LJ KB 719) is: "If a person hold himself out as possessing special 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 treatments 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." (Charlesworth and Percy on Negligence 7th Edition, The Common Law Library No.6 at p. 540) Mc Nair J. in Bolam v. Friem Hospital Management Committee (1957) 2 All ER P 118 at 121-122 explained the legal position thus: "........... where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this special skill. The test is the 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 her exercise the ordinary skill of an ordinary competent man exercising that particular art ....... Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that 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............. That is a perfectly accurate statement, as long as it is remembered that 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............. A doctor is not 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..........Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion." This statement of law has specifically been upheld by the House of Lords in Whitehouse v. Jordan (1981) 1 WLR 246. Lord Edmund Davies, with whom Lord Fraser of Tully belton and Lord Russel of Killowen agreed, in his speech observed: "To say that a surgeon committed an error of clinical judgment is wholly ambiguous, for, while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable." After referring to the tests laid down in Bolam v. Friern Hospital Management Committee(1957-2AII ER 118) (supra), the learned law Lord observed: "If a surgeon fails to measure up to that standard in any respect (clinical judgment or otherwise), he has been negligent and should be so adjudged." Demarcating the line between negligence and error of judgment, Lord Fraser of Tully belton in his speech observed: "Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment 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 case, then is negligent. 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 case, then 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 negligent." The law in our country is no different from the English law. Adverting to the duties which a doctor owes to his patient, the Supreme Court in Laxman v. Trimbak AIR 1969 SC 128 at p. 131-132 held: "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 case is what the law requires: (Ch. Halsburys Laws of England, 3rd Ed. Vol 26 p. 17). In Philips India Ltd. v. Kunju Punnu3, the learned judges of the Bombay High Court, observed as under: The civil liability of medical men towards their patients is perhaps compendiously stated in R. v. Bateman, (1925) 94, LJ KB 791, as follows:- "If a person holds himself out as possessing special skill and knowledge and he 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 the 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 administrating the treatment. If the 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 administrating the treatment. No contractual relating 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 maters above mentioned. If the patients death has been caused by the defendants 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 gross 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 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. Such cases are likely to be rare.........." (see Charlesworth on Negligence, Fifth Edn., pages 181 and 182 para 272). The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is no question of warranty undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence." Regarding negligence in diagnosis. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence." Regarding negligence in diagnosis. Lord Nathan has observed at page 43 :- "The diagnosis of ailments is normally the first matter with which the medical man is concerned; and there can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury or damage to his patient (as for example where the false diagnosis leads the medical man to apply a wrong treatment or to refrain from applying some treatment which, if it had been applied at once, would have averted or curred the condition complained of). It follows, however, from what has already been said as to the standard of care required from the medical man, that a mistaken diagnosis is not necessarily a negligent diagnosis. It was said forty years ago, and the principle still holds good, though allowance must of course be made in any particular case for subsequent advances in technique, that no human being is infallible; and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession." It is, therefore, clear that in an action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove: (1) that the defendant was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable. At the outset, it must be noted that although the learned Civil Judge rightly disbelieved Shankars evidence and said that it was not possible to hold that Dr. Shaikh Suleman had treated Gopal a V.D. patient in para 10 of his judgment, he appears to have tacitly assumed that there was negligence on the part of Dr. Shikh Suleman in not diagnosing the disease as small pox. As already stated above, having regard to the nature of the smallpox which killed Gopal, it was not possible for Dr. Shaikh Suleman or even Dr. Grant to diagnose the disease as smallpox at the stage at which they had treated Gopal. It may be that having regard to the evidence of Dr. Gupchup and what is stated in Dicksons Book, which unfortunately was not made available to us by the defendants counsel and attorneys, it was impossible for a doctor with ordinary skill and competence to diagnose it at that stage. It is also possible that the fulminating or haemorrhage smallpox occurred after Gopal was discharged from Dr. Grants Nursing Home. In A.S. Mittal and another v. State of U.P.4, the Apex Court, while dealing with professional negligence and tortuous liability, in relating to the Public Interest Litigation, held as under: But the law recognizes the dangers which are inherent in surgican operations. Mistakes will occuron occasions despite the exercise of reasonable skill and care. Jackson and Powell on Professional Negligence, (1982 Edn., p. 232) say: . . .In White v. Board of Governors of Westminster Hospital5 a surgeon accidentally cut the retina during an operation on the plaintiffs right eye. As a result the eye became useless and had to be removed. Thompson, J. acquitted the surgeon of any negligence. He was working within a very few millimeters and exercise due skill, care and judgment.... But, in a case where the plaintiff developed meningitis as a result of some infection in the apparatus used in the operation it was held that there must have been some negligence by the hospital staff for which the hospital authority was responsible. (ibid para 6. 53) But where the operation is a race against time, the court will make greater allowance for mistakes on the part of the surgeon or his assistants, taking into account the Risk- benefit test. In Dr. Laxman Balkrishna Joshi v. Or. (ibid para 6. 53) But where the operation is a race against time, the court will make greater allowance for mistakes on the part of the surgeon or his assistants, taking into account the Risk- benefit test. In Dr. Laxman Balkrishna Joshi v. Or. Trimbak Bapu Godbole, this Court held: 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 to care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires....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. Street on Torts (1983), 7th edn., p. 126) suggests that doctrine of res ipsa loquitur is attracted: ......where an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is at least evidence of negligence for a jury. Charlsworth and Percy on Negligence refer to a case where a woman was placed in the same ward with another suspected of, and later found to be suffering from, puerperal fever herself. The doctor was held negligent in not isolating her when the other case was suspected and in not taking steps to prevent her form being infected. In Dr. Laxman Balkrishna Joshi, v. Dr. Trimbak Babu Godbole5, the Apex Court, observed as under: 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. In Dr. Laxman Balkrishna Joshi, v. Dr. Trimbak Babu Godbole5, the Apex Court, observed as under: 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 with 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 case is what the law requires: (ct. Halsubrys 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. But the question is not whether the judgment or discretion in choosing the treatment he exercised was right or wrong, for, as Mr. Purshottam rightly agreed, no such question arises in the present case because if we come to the same conclusion as the High Court, viz., that what the appellant did was to reduce the fracture without giving anaesthetic to the boy, there could be no manner of doubt of his being guilty of negligence and carelessness. He also said that he was not pressing the question whether in this action filed under the Fatal Accidents Act (XIII of 1855) the respondents would be entitled to get damages. The question, therefore, is within a small compass, namely, whether the concurrent findings of the trial court and the High Court that what the appellant was reduction of the fracture without giving anaesthetic to the boy and not mere immobilization with light traction as was his case, is based on evidence or is the result of mere conjectures or surmises or of misunderstanding of that evidence. 21. Here is a case where the plaintiff! 21. Here is a case where the plaintiff! I patient had reposed confidence in the selfsame doctor, the 7th defendant and had approached him even for the second operation. Evidently, findings had been recorded on the strength of the material available on record and the suit was dismissed as against the 7th defendant, which had attained finality. Since the plaintiff had not preferred any appeal as against the said decree of dismissing the suit as against the 7th defendant, the only evidence available on record relating to the standard or quality of EX.A-11 is that of P.W.1 and only just 2 or 3 sentences were deposed by D. W.2 at the time of the closing of chief examination. It is no doubt true that the patient is not an expert and her knowledge would be very limited to speak about the standard or the quality of the surgical instrument. D.W.2, no doubt, in his deposition, expressed some doubt about the quality or standard in relation to EX.A-11 in chief examination but for reasons best known had given a go-by in cross-examination. Be that as it may, on appreciation of the overall facts and circumstances, findings had been recorded by the trial Court fastening the liability as against the appellant hospital only and the liability was negatived as against the 7th defendant who had actually operated. It is also pertinent to note that the post -operational complications may be due to various reasons. It need not necessarily be due to substandard quality of EX.A-11.lt may be dependant on the nature of the patient and several other factors. However, there is evidence available on record that due to complications, which the plaintiff/patient had developed after the operation in the appellant hospital, she had undergone yet another operation at Durgabai Deshmukh hospital which also had been conducted by the 7th defendant only and there is some evidence available on record that the plaintiff incurred Rs.50,000/- as additional expenditure due to post-operational complications, though it is doubtful whether it was the resultant effect of the insertion of EX.A-11 or otherwise. Be that as it may, it is brought to the notice of this Court that by virtue of the interim order, half of the decretal amount was directed to be deposited and the same had been withdrawn by the plaintiff. Be that as it may, it is brought to the notice of this Court that by virtue of the interim order, half of the decretal amount was directed to be deposited and the same had been withdrawn by the plaintiff. Findings in details had been recorded by the trial Court while arriving at a conclusion why the 1st respondent/plaintiff is entitled to compensation amount claimed by her. 22. Point No.2: In the light of the findings recorded above, this Court is of the considered opinion that the award of Rs.1,50,000/-. In the peculiar facts and circumstances, would definitely be on higher side, especially in the light of the evidence of both D.WS.1 and 2 and also the evidence of P. W.1. Hence the quantum of compensation fixed by the trial Court, in the considered opinion of this Court, is not just and reasonable and hence findings no doubt are hereby confirmed to the extent referred to supra but the quantum of compensation is fixed at Rs.75,000/- taking into consideration all the relevant facts and it is needless to state that the said amount had already been received by the 1st respondent/ plaintiff. 23. Accordingly the judgment and decree of the trial Court are hereby modified to the extent referred to supra. The appeal is partly allowed. No order as to costs.