JUDGMENT : 1. This is an appeal filed under Section 96 of the Code of Civil Procedure, 1908 challenging the Judgment and Decree passed by the learned City Civil Court, Ahmedabad in Civil Suit No.4329 of 1991 on 30.11.2005 2. Heard the learned advocates for the respective parties. 3. The challenge is made against the Judgment and Decree passed by the learned City Civil Court, Ahmedabad in Civil Suit No.4329 of 1991 on 30.11.2005, wherein the suit of the plaintiff was partly allowed and the defendants-present appellants are directed to pay Rs.77,000-00/- with interest @ 9 per cent from the date of filing of the suit till realization to the plaintiffs-respondents. 4. The brief facts of the case are that the plaintiffs- respondents filed a Civil Suit claiming Rs.90,000-00/- as damages with 18% interest from the defendants-plaintiffs on the ground of medical negligence being committed by the doctors of the defendant No.1. The wife of the plaintiff No.1 Bharti Sarswati Appukuputtan consumed acid and was taken to defendant No.1 i.e. Hospital on 06.08.1990 at 4:00 p.m. On 09.08.1990 at around 3:00 p.m., the wife of plaintiff No.1 was started with blood transfusion treatment and after completing the first bottle of blood at 7:00 p.m., the second bottle of blood was started to be transfused. But at around 8:45 p.m., the deceased-Bharti Sarswati Appukuputtan (hereinafter referred to as ‘deceased’) expired. The case of the plaintiffs is that due to gross negligence committed by doctors of the defendant No.1-Hospital, plaintiff lost his wife and plaintiff Nos.2 and 3 lost their mother. In the post-mortem report, the cause of death was reserved till receipt of HPE and Chemical Analysis Report comes. Notice dated 19.04.1991 was issued by the plaintiffs under the Bombay Provincial Municipal Corporation Act and claimed compensation of Rs.90,000/- from the defendants. 4.1. The suit was resisted by the defendants by filing Written Statement at Exhibit-22 and denied the allegation of negligence as well as denied the liability of paying compensation. It was contended that the cause of death of the deceased was Cardio Respiratory Failure and there is no medical negligence on the part of the doctors who treated the deceased. 4.2. The following issues were framed at Exhibit-37; “(1) Whether plaintiff proves that deceased died due to treatment negligently given by the doctor of V.S. Hospital and the defendants? It was contended that the cause of death of the deceased was Cardio Respiratory Failure and there is no medical negligence on the part of the doctors who treated the deceased. 4.2. The following issues were framed at Exhibit-37; “(1) Whether plaintiff proves that deceased died due to treatment negligently given by the doctor of V.S. Hospital and the defendants? (2) Whether defendants prove that they have acted under good faith and hence they deserves statutory protection? (3) Whether defendants prove that cause of death of the deceased was directly due to cardiorespiratory and not because of the negligence on the part of the defendants? (4) Whether plaintiffs are entitled to get compensation in respect of negligence shown by the defendants? (5) What order and decree?” 4.3. Plaintiff No.1 was examined at Exhibit-38 and defendant also examined Dr. Apurva Narhari Vora at Exhibit-43 After recording evidence and after considering the material available on record, the learned City Civil Court, Ahmedabad partly allowed the suit by awarding Rs.77000/- towards compensation with 9% interest from the date of filing of the suit till realization in favour of the plaintiffs. 4.4. Being aggrieved and dissatisfied with the impugned judgment and decree, the present appellants are before this Court. 5. Learned advocate for the original defendant-appellants submitted that Bharti Sarswati Appukuputtan was admitted in the defendant No.1-Hospital as the deceased had consumed Hydrochloric Acid, which is normally used to clean the toilets. The deceased was admitted in defendant No.1-Hospital on 06.08.1999 at around 3:40 p.m. under Medical Unit No.1 and the treatment was started to minimize the effect of acid. Treatment was given to dilute the effect of acid in the body but since the acid which was consumed by the deceased was being very much powerful, the stomach of the deceased was badly damaged and the condition of the deceased was such that the chance of revival of the deceased was less. It is further submitted that looking to the condition of the deceased, the proper and adequate care was taken by the Hospital Authorities and also by the doctors. Deceased was referred to Gestro-antrology Department on 08.08.1990. As her condition was worsening deceased was given blood and intravenous fluid. It is further submitted that Dr. Amrish Parikh who is a Gastroenterologist Surgeon outlined the treatment and as per the line of treatment suggested by Dr. Amrish Parikh, Dr. Deceased was referred to Gestro-antrology Department on 08.08.1990. As her condition was worsening deceased was given blood and intravenous fluid. It is further submitted that Dr. Amrish Parikh who is a Gastroenterologist Surgeon outlined the treatment and as per the line of treatment suggested by Dr. Amrish Parikh, Dr. Apurva Narhari Vora and other doctors of the Hospital were treating and taking care of the deceased. It is further submitted that Section 486 of the Bombay Provincial Municipal Corporation Act gives complete immunity from the liability for the payment of damages and penalty on account of any act done in good faith under the said Act. Defendant No.1, who is the Hospital managed by the Trust. Defendant Nos.4 to 9 are the trustees of defendant No.1-Trust. The Section 486 of the Bombay Provincial Municipal Corporation Act is hereby reproduced as under:- “486. Indemnity for acts done in good faith.-No suit, prosecution or other legal proceeding shall lie in respect of any- thing in good faith done or purported or intended to be done under this Act against any councillor or against any member of the Transport Committee who is not a councillor or against the Commissioner, the Transport Manager or any municipal officer or servant or against any person acting under and in accordance with the directions of the Corporation, any committee constituted under this Act, the Commissioner, the Transport Manager, any municipal officer or servant or of a Magistrate.” 5.1. It is further submitted that the doctors who treated deceased had acted bonafidely and in good faith and tried to save the life of deceased. However, on 09.08.1990, the treating doctors decided to give blood to the deceased and two bottles of blood were procured and first bottle of blood was transfused at around 3:00 p.m. It is further submitted that after completion of the first bottle of blood, the second bottle of blood was started to be transfused and it was found by the treating doctors that the condition of deceased was getting worsened from 5:00 p.m. on 09.08.1990 and on 09.08.1990 at around 8:40 p.m., deceased succumbed. The post mortem of the deceased was carried out on the same day and the opinion as to the probable cause of death was kept reserved till receipt of HPE and Chemical Analysis Report comes. The cause of death was Cardio Respiratory Failure following Pulmonary Oedemon. The post mortem of the deceased was carried out on the same day and the opinion as to the probable cause of death was kept reserved till receipt of HPE and Chemical Analysis Report comes. The cause of death was Cardio Respiratory Failure following Pulmonary Oedemon. It is further submitted that the plaintiffs have not been able to establish independently that the doctors have failed in performing their duties and they have remained negligent in treating the deceased. It is further submitted that the learned trial Court has misread the oral evidence of Dr. Apurva Narhari Vora at Exhibit 43 and has not properly considered the explanations and answers given during the cross-examination. The learned trial Court has only adopted pick and choose method from the cross-examination of Dr. Apurva Narhari Vora in partly allowing the suit. Learned advocate for the appellants has also taken this Court through the cross-examination of the said Dr. Apurva Narhari Vora. 6. Per contra, learned advocate for the respondents has submitted that the learned trial Court has properly considered the evidence and the treatment-sheet which is produced at Exhibit-44 and has rightly arrived at the conclusion that Dr. Apurva Narhari Vora was a junior doctor and the defendants have not examined any senior doctors. It is further urged by the learned advocate for the respondents that the treatment- sheet produced at Exhibit-44 clearly indicates that the deceased was never treated with due care and the deceased was never treated by senior doctors of the Hospital. From the treatment-sheet, it is noticeable that initially the deceased was responding well to the treatment. It is further submitted that the undisputed fact which is coming out from the record that Dr. Apurva Narhari Vora was a resident doctor and he attended deceased at 5 a.m. on 09.08.1990 and thereafter, till 7:45 p.m. on 09.08.1990, deceased was never attended by the said doctor. This admitted position clearly proves the fact that defendant No.1-Hospital and doctors have remained negligent and careless, which had caused death of deceased. It is further submitted that the noting dated 19.02.1991 on the post mortem report at Exhibit-45 also proves the fact that the cause of death has been subsequently added. It is further submitted that defendants have not examined any senior doctors in substantiating their claim of non-negligence. It is further submitted that the noting dated 19.02.1991 on the post mortem report at Exhibit-45 also proves the fact that the cause of death has been subsequently added. It is further submitted that defendants have not examined any senior doctors in substantiating their claim of non-negligence. The fact of non- examining the senior doctors of the Hospital also gives a clear indication that doctors have remained negligent and no proper and due care was taken in treating the deceased. It is further submitted that the fact to the effect that endorsement on post mortem report at Exhibit-45, at a later point of time, also creates doubts about the bonafides of the defendant No.1- Hospital. 6.1. Learned advocate for the respondents has placed reliance upon para Nos.6, 7, 10, 12, 14 and 16 of the case of State of Haryana Vs.Smt. Santra reported in 2000 (3) GLR 2309 , which are reproduced hereinunder; “6. The trial Court as also the lower appellate Court both recorded concurrent findings of fact that the sterilisation operation performed upon Smt. Santra was not 'complete' as in that operation only the right Fallopian tube was operated upon while the left tube was left untouched. The Courts were of the opinion that this exhibited negligence on the part of the Medical Officer who performed the operation. Smt. Santra, in spite of the unsuccessful operation, was informed that sterilisation operation was successful and that she would not conceive any child in future. The plea of estoppel raised by the defendants was also rejected. The trial Court has recorded the following findings on the question of negligence: "The birth of the female child by plaintiff Smt. Santra after operation for sterilisation is not disputed and the case of the defendants is that there was no negligence and carelessness on the part of the defendant but on going through the documents placed on the file as well as testimony of PWs that the Medical Officer who conducted the operation has threw the care and caution to the winds and focused attention to perform as many as operations as possible to build record and earn publicity. It is in such setting that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the lurch to suffer agony and burden which she was made to believe was avoidable. It is in such setting that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the lurch to suffer agony and burden which she was made to believe was avoidable. Therefore, the act of the DW 2-Dr. Sushil Kumar shows that he did not perform his duty to the best of his ability and with due care and caution and due to the above said act, the plaintiff has to suffer mental pain and agony and burden of financial liability." 7. The findings of the lower appellate Court on this question are as under: "In the instant case, admittedly, plaintiff Santra was operated for right tube and not for left tube. Dr. Sushil Kumar Goel while appearing as DW 2 has categorically stated so. He has specifically stated that Santra, plaintiff was not traceable. I am of the considered opinion that if Santra, plaintiff was not operated for left side, in that event, the doctor should not have issued certificate of sterilisation to her. The doctors who operated plaintiff Santra should have advised her to come for second time for her operation of left side. The plaintiff has placed family sterilisation case card Exh. P-2 on the file. The defendant-State has admitted in its written statement that she was successfully operated on 4-2-1988 in General Hospital, Gurgaon. When admittedly Santra, plaintiff was not operated, as discussed above, for her left tube in that event issuance of certificate to her of her sterilisation amounts to gross negligence." 10. 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. Friern Hospital Management Committee (1957) 2 All ER 118, McNair, J., summed up the law as under: "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; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. 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. ...t here may be one or more perfectly proper standards; and if he conforms with one of these proper standards, then he is not negligent." 12. In two decisions rendered by this Court, namely, Laxman Balakrishna Joshi V/s. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128 and A. S. Mittal V/s. State of U.P., AIR 1989 SC 1570 : 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) 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 (4) SCC 332 : AIR 1996 SC 2111 , where the question of medical negligence was considered in the context of treatment of a patient, it was observed as under : "42. Negligence has many manifestations - it may be active negligence, collateral 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 Black's Law Dictionary 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 dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes." 14. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes." 14. In Spring Meadows Hospital v. Harjol Ahluwalia, 1998 (4) SCC 39 : JT 1998 (2) SC 620 : AIR 1998 SC 1801 , it was observed as under: “9. In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exerted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country." 16. In this judgment, reliance was placed on the decision of the House of Lords in Whitehouse v. Jordan 1981 (1) All ER 267. Lord Fraser, while reversing the judgment of Lord Denning (sitting in the Court of Appeal), observed as under : "The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. Lord Fraser, while reversing the judgment of Lord Denning (sitting in the Court of Appeal), observed as under : "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 holds himself out as having, and acting with ordinary care, then it is negligence. 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." 6.2. Learned advocate for the respondent has further placed reliance upon para Nos.2, 4, 5, 9, 10, 13, 14 in the case of M/s. Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K.S. Ahluwalia and another reported in AIR 1998 SC 1801 , which are reproduced hereinunder; 2. A Complaint Petition was filed by minor Harjot Ahluwalia through his parents Mrs. Harpreet Ahluwaliaand and Mr. Kamaljit Singh Ahluwalia before the Commission alleging that the minor was being treated at a Nursing Home in Noida in December, 1993. As there was no improvement in his health the said minor was brought to M/s. Spring Meadows Hospital, appellant in Civil Appeal No. 7708 of 1997 of 24th of December 1993. In the hospital the patient was examined by the Senior Consultant Paediatrician, Dr. Promila Bhutaniand and on the advice of the said doctor the patient was admitted as an in-patient in the hospital. The doctor made the diagnosis that the patient was suffering from typhoid and intimated the parents that medicines have been prescribed for the treatment of the typhoid fever. On the 30th of Dec. 1993 at 9.00 a.m. Miss Bina Matthew, nurse of the hospital asked the father of the minor patient to get the injection - Inj Lariago -to be administered intravenously to the minor patient. The father of the minor child purchased the medicine which was written down by the nurse and gave it, whereupon the nurse injected the same to the minor patient. The patient, immediately on being injected collapsed while still in the lap of this mother. The father of the minor child purchased the medicine which was written down by the nurse and gave it, whereupon the nurse injected the same to the minor patient. The patient, immediately on being injected collapsed while still in the lap of this mother. It was further alleged that before administering the injection the nurse had not made any sensitive test to find out whether there would be any adverse reaction on the patient. Seeing the minor child collapse the parents immediately called for help and the Resident Doctor Dr. Dhananjay attended the patient. Said Dr.Dhananjay told the parents that the child had suffered a cardiac arrest and then by manually pumping the chest the Doctor attempted to revive the heartbeat. The hospital authorities then summoned an Anaesthetist, Dr. Anil Mehta who arrived within half an hour and then started a procedure of manual respiration by applying the oxygen cylinder and manual Respirator. In the meantime Dr. Promila Bhutanialso reached the hospital and the minor child was kept on a device called manual Respirator. Though the child was kept alive on the manual ventilator but the condition of the child did not show any improvement. In course of treatment as the minor's platelets count fell, a blood transfusion was given but still no improvement could be seen. Dr. Mehta, therefore, intimated the parents that the hospital does not have the necessary facilities to manage the minor child and he should be shifted to an Intensive Care Unit equipped with the Auto Respirator. On the advice of Dr. Mehta the parents brought the child and admitted him in the Paediatric Intensive Care Unit of the All India Institute of Medical Sciences on the 3rd January, 1994. In the institute the doctors examined the minor child thoroughly and informed the parents that the child is critical and even if he would survive, he would live only in a vegetative state as irreparable damage had been caused to his brain and there was no chance of revival of the damaged parts. The minor was then kept in the Paediatric Intensive Care Unit of the AIIMS till 24th of January 1994 and was thereafter discharged after informing the parents that no useful purpose would be served by keeping the minor child there. Dr. Anil Mehta as well as Dr. The minor was then kept in the Paediatric Intensive Care Unit of the AIIMS till 24th of January 1994 and was thereafter discharged after informing the parents that no useful purpose would be served by keeping the minor child there. Dr. Anil Mehta as well as Dr. Naresh Juneja, Chief Administrator of Spring Meadows Hospital, however, offered to admit the minor child at their hospital and to do whatever was possible to stabilise the condition of the child and accordingly the minor child was again admitted to the hospital. The complainant alleged that the child on account of negligence and deficiency on the part of the hospital authorities suffered irreparable damages and could survive only as a mere vegetative and accordingly claimed compensation to the tune of Rs. 28 lacs. 4. Miss Bina Mathew the nurse who injected the Lariago injection to the child, who was opposite party No.2 before the Commission filed her objections stating therein that she is a qualified nurse and had exercised all diligence and care in discharging her duties. It was further stated that the patient was under the treatment of Dr. Bhutani who had the duty to decide the course of treatment and as nurse she was only working under her control and direction. She also stated that as the patient was already taking lariago syrup and when the doctor advised that injection should be given she thought that the same lariago injection to be given and it was the duty of the doctor to give the injection and take all care. 5. The insurer-opposite party No. 3 which is appellant in Civil Appeal No. 7858 of 1997 contested the claim and took the defence that there has been no deficiency in service on the part of the insurance company and the provisions of the Consumer Protection Act could not be invoked against the insurer. 5. The insurer-opposite party No. 3 which is appellant in Civil Appeal No. 7858 of 1997 contested the claim and took the defence that there has been no deficiency in service on the part of the insurance company and the provisions of the Consumer Protection Act could not be invoked against the insurer. According to the insurer the insurance company issued medical establishment professional negligence errors and omissions insurance policy and the terms and conditions of the policy would indicate that the liability of the insurer, if any, is to the extent of 12,50,000/- and not beyond the same and further the insurer cannot be made liable when the liability in question has arisen on account of negligence or deliberate non-compliance of any statutory provisions or intentional disregard of the insured's administrative management of the need to take all reasonable steps to prevent the claim. According to the insurer the nurse Miss Bina Mathew was not a qualified nurse at all and she was not authorised to take up the employment as a nurse not having been registered with any Nursing Council of any State. It was also stated that the present state of affairs of the minor child is on account of negligence of an unqualified nurse and therefore the insurer cannot be made liable to pay for any loss or damage sustained. In course of the proceedings before the Commission to assess the minor's condition and rehabilitation requirement the Commission referred the matter to the Medical Superintendent, Safdarjung Hospital by order dated 28th January 1997, and in pursuance to such order the said minor was examined and a report was received by the Commission from the Medical Superintendent, Safdarjung Hospital, New Delhi. The Commission also examined witnesses including Dr. J. S. Nanra and Dr. A. S. Ahluwalia who testified that on account of a medicine having been injected the minor suffered from cardiac arrest on account of which the brain has been damaged. On the basis of the oral and documentary evidences on record the Commission came to the conclusion that the child had suffered from cardiac arrest and cause of such cardiac arrest was intravenous injection of lariago of high dose. The Commission also came to the conclusion that there has been considerable delay in reviving the heart of the minor child and on account of such delay the brain of the minor child got damaged. The Commission also came to the conclusion that there has been considerable delay in reviving the heart of the minor child and on account of such delay the brain of the minor child got damaged. On the question of the negligence of services the Commission came to the conclusion that there was a clear dereliction of duty on the part of the nurse who was not even a qualified nurse and the hospital is negligent having employed such unqualified people as nurse and having entrusted a minor child to her care. The Commission also came to the conclusion that Dr. Dhananjay was negligent in the performance of his duties inasmuch as while Dr. Bhutani had advised that the injection should be given by the doctor but he permitted the nurse to give the injection. The Commission, ultimately came to the finding that the minor patient had suffered on account of negligence, error and omission on the part of nurse as well as Dr. Dhananjay in rendering their professional services and both of them were negligent in performing their duties in consequences of which the minor child suffered and since the doctor and the nurse were employees of the hospital the hospital is responsible for the negligence of the employees and the hospital is liable for the consequences. The Commission then determined the quantum of compensation and awarded 12.5 lacs as compensation to the minor patient. In addition to the aforesaid sum of Rupees 12.5 lacs, the Commission also awarded Rs. 5 lacs as compensation to be paid to the parents of the minor child for the acute mental agony that has been caused to the parents by reason of their only son having been reduced to a vegetative state requiring life long care and attention. On the question of the liability of the insurance company the Commission came to hold that the said insurance company is liable to indemnify the amount of Rs. 12,37,500/-- in terms of the policy on account of the liability of the hospital as the case is fully covered under the indemnity clause. The Commission then considered the question as to how the amount of compensation should be disbursed for being spent for the welfare of the child and then issued certain directions with which we are not concerned in this appeal. 9. The Commission then considered the question as to how the amount of compensation should be disbursed for being spent for the welfare of the child and then issued certain directions with which we are not concerned in this appeal. 9. In the case in hand we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exhorted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficulty to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. With the emergence of the Consumer Protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same is very few in number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably skill of a competent doctor. In the case of Whitehouse V/s. Jordan and Anr.[1981] 1 ALL ER 267, an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff 's head to become wedged with consequent asphyxia and brain damage. The Trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus: "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 holds himself out as having, and acting with ordinary care, then it is negligence. 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." 10. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us. 13. So far as the second question is concerned, the contention of the learned Counsel for the appellant is that Section 14 being the provision authorising the Commission to pass appropriate orders under one or more of the clauses (a) to (i) and clause (d) alone being a provision for award of compensation, the Commission is entitled to award compensation for any loss or injury suffered by the consumer due to the negligence of the person whose services had been hired and that being the position it would be open for the Commission to award compensation to the minor child who has suffered injury and not the parents. In other words, the learned Counsel urged that clause (d) of Section 14 may not be interpreted enabling the Commission to award compensation both to the minor child and his parents. We see absolutely no force in the aforesaid contention inasmuch as the Commission would be entitled to award compensation under clause (d) to a consumer for any loss or injury suffered by such consumer due to the negligence of the opposite party. If the parents of the child having hired the services of the hospital are consumer within the meaning of Section 2(1)(d)(ii) and the child also is consumer being a beneficiary of such services hired by his parents in the inclusive definition in Section 2(1) (d) of the Act, the Commission will be fully justified in awarding compensation to both of them for the injury each one of them has sustained. In the case in hand the Commission has awarded compensation in favour of the minor child taking into account the cost of equipments and the recurring expenses that would be necessary for the said minor child who is merely having a vegetative life. The compensation awarded in favour of the parents of the minor child is for their acute mental agony and the life long care and attention which the parents would have to bestow on the minor child. The award of compensation in respect of respective consumers are on different head. We see no infirmity with the order of the Commission awarding different amount of compensation on different head, both being consumers under the Act. Accordingly, the Commission in our considered opinion rightly awarded compensation in favour of the parents in addition to the compensation in favour of the minor child. 14. The learned Counsel for the appellants in course of his argument has contended that not only the hospital authorities had immediately on their own taken the assistance of several specialists to treat the child but also even after the child was discharged from the All India Institute of Medical Sciences, humanitarian approach has been taken by the hospital authorities and child has been taken care of by the hospital even without charging any money for the services rendered and consequently in such a situation the award of damages for mental agony to the parents is wholly unjustified. We, however, fail to appreciate this argument advanced on behalf of the learned Counsel for the appellants inasmuch as the mental agony of the parents will not be dismissed in any manner merely seeing the only child living a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents.” 7. I have considered the submissions and paper-book placed on record by the learned advocates for the parties. The undisputed fact which can be culled out from the record is that deceased consumed Hydrochloric Acid and was admitted in defendant No.1-Hospital on 06.08.1990 at 3:40 p.m. under Medical Unit No.1. Deceased was examined and was referred to a Gastroenterologist Department and Dr. The undisputed fact which can be culled out from the record is that deceased consumed Hydrochloric Acid and was admitted in defendant No.1-Hospital on 06.08.1990 at 3:40 p.m. under Medical Unit No.1. Deceased was examined and was referred to a Gastroenterologist Department and Dr. Amrish Parikh, being a Gastroenterologist Surgeon examined deceased and prescribed drugs and outlined the treatment. Once the senior doctor of the Hospital outlines the treatment, it is for the resident doctors and nurses of the Hospital to see that drugs and the line of treatment which has been prescribed by the head doctor is being properly administered to the patient. From the treatment-sheet and also from the averments made in the plaint, it is clear that deceased was given different drugs and medicines, which included blood transfusion and intravenous fluid by the Doctors of defendant No.1-Hospital. 8. It is pertinent to observe here that it is not the case of plaintiffs that deceased was never being treated by doctors, but what has been harped upon by the plaintiffs is with regard to the negligence in treating the deceased. Even the admitted fact which can be gathered from the plaint and the oral evidence of plaintiffs that deceased was admitted in the Hospital on 06.08.1990 in the general ward, where his wife was treated and on 07.08.1990 deceased was shifted to semi special ward. The plaintiff’s husband was also informed by the Doctors that the condition of his wife was critical. Plaintiff has admitted in the plaint that from 06.08.1990 till 3.00 p.m. of 09.08.1990, condition of his wife was improving because of the treatment of doctors of defendant No.1 Hospital. The process of blood transfusion was started on 09.08.1990 at 3:00 p.m. and when the first bottle of blood was being transfused to the patient, there was no sign of deteriorating of condition of the patient. On 09.08.1990. Dr. Apurva Narhari Vora at 5:00 a.m. examined the patient and prescribed necessary drugs. At this stage, the cross-examination of Dr. Apurva Narhari Vora is very vital in deciding the controversy. Said doctor deposed that the intestine stopped functioning in the morning of 09.08.1990. It was also deposed by the said doctor that deceased has consumed huge quantity of Acid. 9. Apurva Narhari Vora at 5:00 a.m. examined the patient and prescribed necessary drugs. At this stage, the cross-examination of Dr. Apurva Narhari Vora is very vital in deciding the controversy. Said doctor deposed that the intestine stopped functioning in the morning of 09.08.1990. It was also deposed by the said doctor that deceased has consumed huge quantity of Acid. 9. Learned trial Court has not considered the cross- examination of the said doctor as a whole but has only picked up few answers given by the said doctor in the cross- examination. Dr. Apurva Narhari Vora in his cross- examination has stated that after admitting the patient on 06.08.1990, the same line of treatment was not being continued but some modifications and alterations were made in the line of treatment and such decision was taken by Dr. Amrish Parikh, who was a Unit Doctor and who was specialist in Gastroenterologist Surgeon. From the treatment-sheet, such fact can be gathered that Dr. Amrish Parikh suggested the drugs and as per the line of treatment suggested by Dr. Amrish Parikh, deceased was being treated. 10. From the further perusal of the cross-examination of the said doctor, it is found that the deceased consumed acid which is being used for toilet cleaning and from the X-rays which were taken, it was found that on 09.08.1990, the intestine of deceased stopped working, such fact was noticed at 5:00 a.m. on 09.08.1990. The said doctor has also stated that drugs other than antibiotics were also prescribed by doctors. From the cross-examination, it is also noticed that the intention of the doctors was to curb the ill effect of the consumption of acid. Even injections were also administered to the patient to reduce the secretion of the acid. The said doctor has also stated about the duration of dozes of injections to be given to reduce the secretion and he has also answered about the pattern and method of creation of acid in the body. It is also noticed from the cross-examination that the said doctor has also deposed that the process of creation of natural acid increases when the acid is being consumed orally. From the post mortem report, it was found that the layer of the stomach of deceased was burnt. When Dr. Amrish Parikh examined the deceased, Dr. It is also noticed from the cross-examination that the said doctor has also deposed that the process of creation of natural acid increases when the acid is being consumed orally. From the post mortem report, it was found that the layer of the stomach of deceased was burnt. When Dr. Amrish Parikh examined the deceased, Dr. Apurva Narhari Vora was present and as per the guidance and the line of treatment decided by Dr. Amrish Parikh, the deceased was being treated with due care and caution. These important evidences of Dr. Apurva Narhari Vora have been completely overlooked by the learned trial Court. 11. The law on medical negligence has been discussed in the case of Jyoti Devi vs. Suket Hospital and Others reported in 2024 SCC OnLine SC 581, where the Hon’ble Apex Court has held in para Nos.12.2.2 and 12.2.3, which are reproduced hereinbelow:- “12.2.2 To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v.Dr. M.A. Methusethupati observed: - “…. a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.” (Emphasis supplied) 12.2.3 Observations in Harish Kumar Khurana v. Joginder Singh are also instructive. Bopanna J., writing for the Court held: “…It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. Bopanna J., writing for the Court held: “…It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion.” (Emphasis supplied) These observations, although made in the context of a patient having passed away in the course of, or as a result of treatment, nonetheless are essential even in cases where the claimant has suffered an injury.” 12. While discussing the law on medical negligence, the Hon’ble Apex Court has also considered the landmark decision of Jacob Matthew vs. State of Punjab, wherein the guidelines have laid down by the Hon’ble Apex Court in determining of medical negligence. In attributing negligence upon a doctor, the person who alleges negligence must establish the failure in discharging duty of care extended to the patient, breach of the duty of care and lastly the resulting effect of damage, injury or harm caused to the complainant attributable to the said breach. It is equally necessary for the person who alleges medical negligence to establish by way of a sufficient material in terms of medical evidence before adjudicating the negligence. 13. Coming back to the present case, the plaintiffs have not established by leading any medical evidence in attributing negligence in performing the duty by the doctors. What has been harped upon by the plaintiffs is only the bare averments in the plaint and the same are reiterated in the examination-in-chief. From the cross-examination of Dr. Apurva Narhari Vora, learned advocate for the respondent could not point out any glaring aspect which can attribute negligence and lead to a conclusion that doctors have failed in performing their duties. From the cross-examination of the Dr. Apurva Narhari Voraas well as treat sheet, it is established that the Hospital as well as the treating doctors have followed reasonable standards of medical practice. Plaintiffs have not been able to establish any breach of duty caused by omission to do something. From the cross-examination of the Dr. Apurva Narhari Voraas well as treat sheet, it is established that the Hospital as well as the treating doctors have followed reasonable standards of medical practice. Plaintiffs have not been able to establish any breach of duty caused by omission to do something. A medical professional is often called upon to adopt a procedure which involves higher element of risk but which he honestly believes as providing greater chances of success for the patient rather than procedure invoking lesser risk but higher chances of failure. Just because a professional, looking to the gravity of illness takes higher ailment of risk to redeem the patient out of her sufferings, which did not yield the desired result may not be called negligence. 14. From the evidence produced on record, I do not find any material to lead to a conclusion that the doctors have failed in performing their duties of care to the patient. From the treatment-sheet and from the Xrayes of the deceased, it was found by the medical professionals that the layer of stomach was burnt because of consumption of acid. Furthermore, in absence of expert medical evidence being led by the plaintiffs in attributing to the medical negligence or failure in discharging duty by the doctors. I am of the view that the learned trial Court has committed a grave error in assessing the evidence. The decision which has been relied upon by the learned advocate for the respondents are not helpful to the case of the respondents and resultantly, the present First Appeal succeeds and the Judgment and Decree passed by the learned City Civil Court, Ahmedabad in Civil Suit No.4329 of 1991 on 30.11.2005 is hereby quashed and set aside. Civil Suit No.4329 of 1991 is hereby dismissed. No order as to costs. 15. R & P be sent back to the concerned Court below forthwith.