ORDER : 1. The present First Appeal is filed by the appellant under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as ‘the Act’). 2. Heard learned advocate Ms. Devanshi K. Patel for learned advocate Mr. Jigar P. Raval for appellant and learned advocate Mr. Rituraj M. Meena for the respondent No.2. Though served, none appeared for respondent No.1. 3. The plaintiff-appellant filed Civil Suit No.708 of 1988 before the City Civil and Sessions Court, Ahmedabad for a relief of damages of Rs.2,70,000/- from the respondents-defendants. The learned City Civil and Sessions Court, Ahmedabad dismissed the suit vide judgment and decree dated 31.01.2003. 3.1. Being aggrieved and dissatisfied with the judgment and decree, the present appellant is before this Court. 4. The brief facts of the case are as under:- 4.1 The plaintiff was an employee of defendant No.2. As plaintiff suffered some eye problem in the month of August, 1986, plaintiff approached defendant No.1, who is working as a Senior Medical Officer in the dispensary run by defendant No.2. On consultation, defendant No.1 prescribed “Zinco-Sulpha” (hereinafter to be referred as ‘the eye drops’) to the plaintiff on 29.08.1986. As the plaintiff complained about more trouble in his right eye, consulted defendant No.1 on 02.09.1986. Dr. Anterkar examined the plaintiff and advised him to consult ophthalmologist Dr. Bavishi at Ahmedabad. The plaintiff was referred to Nagri Hospital at Ahmedabad, where on 19.09.1986, right eye of the plaintiff was operated and right eye was removed. The suit was filed by the plaintiff for recovery of the damages of Rs.2,70,000/- on account of negligence of defendant No.1. Defendant No.1 appeared and filed Written Statement at Exhibit-14 and denied all the allegations levelled against him. Defendant No.2 adopted the Written Statement of the Defendant No.1. 4.2 Issues were framed by the learned trial Court at Exhibit 16, which are as under:- “1. Whether the plaintiff proves that defendant No.1 was negligent in providing medical treatment as ophthalmologist to him? 2. Whether the plaintiff proves that the defendant No.1 was not qualified to treat the eye sickness and in spite of that had prescribed medicine for the eyes of the plaintiff? 3. Whether the plaintiff proves that on account of faulty diagnosis and also on account of negligence shown by the defendant No.1, he has lost vision of one eye? 4. Whether the plaintiff proves that the defendant No.1 was not qualified to treat the eye sickness and in spite of that had prescribed medicine for the eyes of the plaintiff? 3. Whether the plaintiff proves that on account of faulty diagnosis and also on account of negligence shown by the defendant No.1, he has lost vision of one eye? 4. Whether the defendant No.1 is liable to pay compensation to the plaintiff? 5. Whether the defendant No.2 is vicariously liable to pay the compensation to the plaintiff? If yes, what amount? 6. What order and decree?” 4.3 The plaintiff examined himself at Exhibit-25, but did not produce any documentary evidence in support of his case. The defendant No.1 examined himself at Exhibit-28. Defendant also examined another witness, namely, Umeshchandra R. Jain at Exhibit-38. After considering oral as well as documentary evidence, the suit came to be dismissed on 31.01.2003. 5. Learned advocate for the appellant submitted that the plaintiff was an employee of defendant No.2 and had a degree of Engineer. In the month of August, 1986, plaintiff suffered some eye problem and approached the defendant No.1, who is working as a Medical Officer with defendant No.2. The plaintiff was suffering from pain and watering from his right eye and therefore, the defendant No.1 prescribed “Zinco Sulpha” eye drop to the plaintiff. However, the problem continued and increased. Resultantly, the plaintiff again visited defendant No.1 on 30.08.1986. Defendant No.1 directed plaintiff to continue with the same treatment which was given on 29.08.1986. On increasing the problem, on 02.09.1986, defendant No.1 was again approached by the plaintiff. However, in absence of defendant No.1, Dr. Anterkar examined plaintiff and advised the plaintiff to approach the ophthalmologist Dr. Bavishi, Ahmedabad. Upon such advice, when plaintiff approached Dr. Bavishi who is also a penal Doctor of defendant No.2. The said doctor opined that the plaintiff had approached late in consulting an ophthalmologist. The plaintiff was referred to Nagri Hospital at Ahmedabad and plaintiff was admitted on 19.09.1986. Surgery was performed on plaintiff’s right eye and the right eye of the plaintiff was removed. It is submitted that the loss of right eye of the plaintiff is a result of sheer negligence on the part of the defendant No.1. It is further submitted that though defendant No.1 was not a qualified doctor, he prescribed “Zinco Sulpha” eye drop. Surgery was performed on plaintiff’s right eye and the right eye of the plaintiff was removed. It is submitted that the loss of right eye of the plaintiff is a result of sheer negligence on the part of the defendant No.1. It is further submitted that though defendant No.1 was not a qualified doctor, he prescribed “Zinco Sulpha” eye drop. Resultantly, the plaintiff has lost his right eye. It is further submitted that “Zinco Sulpha” is not the proper drug to cure the sickness, which plaintiff was suffering. It is further submitted that the plaintiff was diagnosed by Dr. Bavishi and also Doctor of the Nagri Hospital as having suffered from a corneal ulcer in his right eye. It is further submitted that because of the negligent act of defendant No.1, the plaintiff has lost his right eye and because of such a defect, the plaintiff has permanently lost three dimension vision, which causes great discomfort in his day to day activities as well as in performing his duty. It is further submitted that since the plaintiff has lost his right eye, he is not able to draw drawings, which is part of his duty. The plaintiff has also lost chances of promotion because of loosing of right eye. It is submitted that learned trial Court has committed an error by not holding defendant No.1 as negligent in providing medical treatment. Learned trial Court has committed an error by misreading oral evidence of defendant No.1. The fact that defendant has lost eye is sufficient to draw an inference of negligent treatment being provided by defendant No.1. 6. Per contra, learned advocate for the respondent No.2 has submitted that the learned trial Court has considered the evidence and thereafter has come to the conclusion that the plaintiff has failed to establish the fact of negligent in providing medical treatment to the plaintiff. Learned advocate for the respondent No.2 has mainly relied upon the averments made in the Written Statement at Exhibit-14 and it is submitted that the plaintiff was suffering from conjunctivitis and after examining the plaintiff, the defendant No.1 prescribed “Zinco Sulpha” eye drop. Defendant No.1 is holding a degree of MBBS and is said to have good knowledge and expertise in prescribing the said eye drop. In treating conjectivitis, Zinco Sulpha is the right and proper drug. Defendant No.1 is holding a degree of MBBS and is said to have good knowledge and expertise in prescribing the said eye drop. In treating conjectivitis, Zinco Sulpha is the right and proper drug. It is further contended that the defendant No.1 advised plaintiff to take proper rest and was advised not to visit in field. However, the plaintiff, instead of taking rest, resumed duty on 02.09.1986 and exposed himself in the field. The plaintiff did not have any complaint for the period from 30.08.1986 to 02.09.1986 evening. It is submitted that “Zinco Sulpha” eye drop is the proper drugs to cure the conjectivitis. After the incidence, defendant No.2 constituted an Inquiry Committee consisting of 4 Officers of the ONGC and one independent Eye Specialist of Ahmedabad Dr. C. K. Patel and the said Committee, after examining the record, came to the conclusion that “Zinco Sulpha” eye drop could not cause any reaction leading to loss of right eye of the plaintiff. The said Committee also came to the conclusion that the long exposure of the plaintiff’s eyes as he went on his duty, might have aggravated his condition, which resulted into loss of his right eye. Plaintiff was solely responsible in damaging his eye which resulted into removal of his right eye. 7. I have considered the rival submissions and also considered the papers available on record. The plaintiff was prescribed “Zinco Sulpha” eye drop by defendant No.1 on 29.08.1986, when the plaintiff came with the problem of the conjunctivitis. On 2nd September, 1986, the plaintiff was referred to Dr. Bavishi, who is a panel Doctor of defendant No.2, referred the plaintiff to Nagri Hospital at Ahmedabad. As Dr. Bavishi found that the plaintiff had approached very late. On 19.09.1986, plaintiff was operated and his right eye was removed. Plaintiff was discharged from the Nagri Hospital on 25.09.1986. The plaintiff resumed his duty on 04.10.1986. The case of the plaintiff is that defendant No.1 is not a qualified ophthalmologist and does not possess expertise in treating eye sickness and has treated plaintiff in a negligent manner which has resulted into lose of right eye. It is also alleged that “Zinco Sulpha” eye drop is not the proper drug to treat the sickness which plaintiff was suffering from. It is also alleged that “Zinco Sulpha” eye drop is not the proper drug to treat the sickness which plaintiff was suffering from. It is note worthy that except the bare allegations made in the plaint and in the examination-in-chief, no medical expert evidence is produced by the plaintiff in discharging the burden of proof with regard to the negligency. When a positive assertion is made by plaintiff that the “Zinco Sulpha” eye drop is not the proper drug for curing the conjectivitis, the plaintiff ought to have been examined by any expert ophthalmologist. It is really surprising to note that though plaintiff had taken treatment in Nagri Hospital and his right eye was removed on 19.09.1986 by the Doctor of said Hospital, no case papers from Nagri Hospital were called upon by the plaintiff to prove the allegations of negligence. Even Dr. Bavishi was not examined by the plaintiff, whom plaintiff consulted and was diagnosed with corneal ulcer in right eye. The submission canvassed by the learned advocate for the appellant that Dr. Bavishi being a panel doctor of defendant No.2 could not have deposed true facts is not acceptable when specific case is made out by the plaintiff in the plaint that Dr. Bavishi and the Doctors of Nagri Hospital diagnosed the plaintiff with corneal ulcer in his right eye. The burden of proving negligence was on the plaintiff. Even the Doctors of Nagri Hospital, who performed surgery on plaintiff on 19.09.1986 could have been examined by the plaintiff. 8. Principles of res ipsa locutor is a well known principle in cases of medical negligence. To hold a medical practitioner liable for negligence, a higher threshold of limit must be met. Medical negligence occurs when care medical providers fail to fulfill their professional obligations. 9. It would be apt to refer the case of M. A. Biviji V/s. Sunita and others reported in (2024) 2 SCC 242 , wherein the Hon’ble Apex Court has considered the decision of Jacob Mathew V. State of Punjab reported in (2005) SCC 1. Relevant para Nos.35, 38 and 39 of the said decision are reproduced hereunder:- “35. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. Relevant para Nos.35, 38 and 39 of the said decision are reproduced hereunder:- “35. (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Sing), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: duty, breach, and resulting damage. (2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor additional considerations apply. A case of occupational negligence is different from the one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of the knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional maybe held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. 38. Due to the unique circumstances and complications that arise in different individual cases, coupled with the constant advancement in the medical field and its practices, it is natural that there shall always be different opinions, including contesting views regarding the chosen line of treatment, or the course of action to be undertaken. In such circumstances, just because a doctor opts for a particular line of treatment but does not achieve the desired result, they cannot be held liable for negligence, provided that the said course of action undertaken was recognized as sound and relevant medical practice. This may include a procedure entailing a higher risk element as well, which was opted for after due consideration and deliberation by the doctor. Therefore, a line of treatment undertaken should not be of a discarded or obsolete category in any circumstance. 39. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. 39. To hold a medical practitioner liable for negligence, a higher threshold limit must be met. This is to ensure that these doctors are focused on deciding the best course of treatment as per their assessment rather than being concerned about possible persecution or harassment that they may be subjected to in high-risk medical situations. Therefore, to safeguard these medical practitioners and to ensure that they are able to freely discharge their medical duty, a higher proof of burden must be fulfilled by the complainant. The complainant should be able to prove a breach of duty and the subsequent injury being attributable to the aforesaid breach as well, in order to hold a doctor liable for medical negligence. On the other hand, doctors need to establish that they had followed reasonable standards of medical practice” 10. In cases of medical negligence, in discharging the burden of proving negligence oral as well as materials on the subject is the best evidence. Once that expert evidence is led by plaintiff, Court has to weigh such evidence in the context of the case and thereafter draw a conclusion on negligence. Unless a contrary evidence of any Doctor who is expert and possesses a degree of treating such or similar diseases, no negligence can be attributed to a Doctor. Negligence can be a matter of proof and cannot be presumed in absence of any cogent evidence. The allegations of negligence in ordinary cases and the allegations of negligence by a Medical Practitioner cannot be viewed in the same line. 11. The learned trial Court has considered the oral evidence of the parties and from the oral testimony of defendant No.1 at Exhibit-28, it has been found that the plaintiff was given treatment for conjectivitis by prescribing conjectivitis “Zinco Sulpha” eye drop. Though, defendant No.1 in his deposition said that two other drugs or eye drops are available in the market. In my view, when a Doctor is treating his patient, merely because other drugs are available in the market, cannot attract the negligent action in prescribing drug which accordingly him was best drug in his opinion. Omission to prescribe alternate drug is no negligence. 12. Thus, in the totality of the facts, the learned trial Court has not committed any error of interpreting either oral evidence or documentary evidence, I do not find any infirmity in the findings of fact. Omission to prescribe alternate drug is no negligence. 12. Thus, in the totality of the facts, the learned trial Court has not committed any error of interpreting either oral evidence or documentary evidence, I do not find any infirmity in the findings of fact. Resultantly, the First Appeal is dismissed. No order as to costs 13. R & P, if lying here, be sent to the reference Court concerned forthwith.