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CASE NO.:

Appeal (civil) 4024 of 2003

PETITIONER:

Smt. Savita Garg

RESPONDENT:

The Director, National Heart Institute.

DATE OF JUDGMENT: 12/10/2004

BENCH:

B.N.AGRAWAL & A.K.MATHUR

JUDGMENT:

J U D G M E N T

A.K. MATHUR, J.

This appeal is directed against the order passed by the

National Consumer Disputes Redressal Commission (hereinafter to

be referred to as 'the Commission'), New Delhi whereby the

Commission has dismissed the original petition of the appellant on

the ground of non-joinder of necessary parties.

Brief facts which are necessary for disposal of this appeal are

as follows.

The appellant is the wife of one deceased A.K.Garg who was

admitted to the National Heart Institute (hereinafter referred to as 'the

Institute') for medical treatment and because of the negligence of the

doctors of the Institute he could not get proper medical treatment and

ultimately he died. The deceased A.K.Garg was employed as

Electrical Engineer in I.D.P.L., Vir Bhadra (Rishikesh). The deceased

was drawing a salary of Rs.8000/- per month at the time of his death.

He left behind his family members namely; (i) Smt.Savit Garg (wife),

(ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg (son), (iv) Miss.

Ruchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop Garg

(brother). Prior to the admission of the deceased, A.K.Garg in the

Institute he was being treated at G.B. Pant Hospital and he did not

improve there, therefore, his case was referred to the Institute by his

employer, IDPL. The deceased was admitted for angiography on

4.7.1994 and a sum of Rs.14,000/- was deposited for his treatment.

He was discharged on 5.7.1994 after angiography. Again he was

admitted on 2.8.1994 at 11.15 A.M. and remained there till 9.8.1994

and ultimately died at the Institute. It was alleged that on 3.8.1994 he

was operated and was brought to the Intensive Care Unit of the

Institute. No attendant was allowed to see the patient except

through the glass windows of I.C.U. The deceased was operated

twice by Dr.O.P. Yadav of the Institute for his treatment. It is further

alleged that Dr.O.P.Yadav was too much worried and perturbed after

the deceased's operation. On the said day i.e. on 3.8.1994, 8 bottles

of blood were transfused in the body of the deceased and even on

4.8.1994 another 8 bottles of blood were demanded by the Doctors of

the Institute and the same was somehow arranged. The deceased is

said to have developed jaundice may be because of wrong

transfusion or extra transfusion of blood. It is further alleged that the

deceased developed septic and as the septic in the bone became

incurable, therefore a Doctor from Batra Hospital was called for to

amputate one leg of the deceased A.K.Garg. Thereafter , as it was

reported to be case of kidney failure, the deceased was put on

dialysis. However, on 9.8.1994 at 2.30 hours the deceased was

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declared dead. Therefore, a complaint was filed before the

Commission claiming a sum of Rs.45 lacs, the details of which have

already been given in the complaint. The appellant has detailed the

reasons for the negligence in her original petition filed before the

Commission. An affidavit in opposition was filed by the Institute and

they denied the allegations of negligence and pointed out that all

proper care was taken, there is no negligence on the part of the

Institute. An objection was also taken that the provisions as contained

in the Consumer Protection Act, 1986 do not satisfy the requirement

of a complaint as defined under the Act as it does not disclose any

deficiency. The Institute also challenged the jurisdiction of the

Commission to entertain the said original petition.

A rejoinder was also filed by the appellant and it is alleged that

septic was developed because of the negligence which shows lack of

care on the part of the doctors. However, when the matter came up

for hearing on 12.4.2002, the Commission directed both the parties to

file brief notes of submissions on the question of maintainability of the

complaint as well as the effect of non-impleading the attending

doctors against whom the medical negligence has been alleged and

the matter was posted to 2.5.2002 for directions. Thereafter,

ultimately the matter was disposed of by the Commission by its order

dated 6.2.2003 holding that the original petition is not maintainable in

the absence of the treating doctors being impleaded as party. It was

also observed that no effort was made by the appellant to implead

the concerned doctors at any stage of the proceedings. Therefore,

the Commission held that there is no alternative but to dismiss the

complaint for non-joinder of parties. The Commission however

observed that considering the age of the deceased and the number of

dependents upon her, the Institute will consider the matter

sympathetically and make some ex-gratia payment to the family

members of the deceased.

The question is whether non-impleading the treating doctor as

party could result in dismissal of the original petition for non-joinder of

necessary party.

It is the common experience that when a patient goes to a

private clinic, he goes by the reputation of the clinic and with the hope

that proper care will be taken by the Hospital authorities. It is not

possible for the patient to know that which doctor will treat him. When

a patient is admitted to a private clinic/ hospital it is hospital/ clinic

which engages the doctors for treatment. In the present case, the

appellant's husband was admitted to the best of the hospital and it is

not possible for the appellant to find out that who is the best doctor

and who is not. Normally, the private clinics go by the reputation and

people look forward for best treatment when they are run

commercially. It is the responsibility of the clinic that they must

provide best of the services when they charge for the services

rendered by them. In case it is found that services rendered by the

clinic or hospital, as the case may be, is not up to the mark and it

involves some negligence on their part, for which the patients suffer,

then they are bound to reimburse them. They charge fee for the

services rendered by them and they are supposed to bestow the best

care. Looking at the present appeal, the whole claim petition was

dismissed simple on the ground that the treating doctor was not

impleaded as a party. The question is therefore, whether in the

absence of the treating doctor could the original petition be

dismissed on the ground of non-joinder of necessary party. As per the

provisions of Section 22 of the Consumer Protection Act, 1986

(hereinafter referred to as 'the Act') the Commission has to regulate

its business. Section 22 lays down the power of and procedure

applicable to the National Commission. It reads as under:

" 22. Power of and procedure applicable to the

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National Commission.- The National

Commission shall, in the disposal of any

complaints or any proceedings before it, have-

(a) the power of a civil court as specified in sub-

sections (4), (5) and (6) of section 13;

(b) the power to issue an order to the opposite

party directing him to do any one or more of the

things referred to in clauses (a) to (i) of sub-

section (1) of section 14,

and follow such procedure as may be prescribed

by the Central Government.".

According to Section 22 whatever procedures which have

been prescribed under Section 13 for the District Forum shall be

applicable. Sub-sections (4), (5) & (6) of Section 13 which are

relevant for our purpose read as under:

" 13. Procedure on receipt of complaint.-

xx xx xx

(4) For the purposes of this section, the District

Forum shall have be same powers as are

vested in a civil court under Code of Civil

Procedure, 1908 while trying a suit in respect

of the following matters, namely:-

(i) the summoning and enforcing the attendance

of any defendant or witness and examining

the witness on oath,

(ii) the discovery and production of any document

or other material object producible as

evidence,

(iii) the reception of evidence on affidavits,

(iv) the requisitioning of the report of the

concerned analysis or test from the

appropriate laboratory or from any other

relevant source,

(v) issuing of any commission for the examination

of any witness, and

(vi) any other matter which may be prescribed.

(5) Every proceeding before the District Forum

shall be deemed to be a judicial proceeding

within the meaning of section 193and 228 of

the Indian Penal Code (45 of 1860), and the

District Forum shall be deemed to be a civil

court for the purposes of section 195, and

Chapter XXVI of the Code of Criminal

Procedure, 1973 (2 of 1974).

(6) Where the complainant is a consumer

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referred to in sub-clause (iv) of clause(b) of

sub-section (1) of section 2, the provisions of

rule 8 of Order 1 of the First Schedule to the

Code of Civil Procedure, 1908 ( 5 of 1908)

shall apply subject to the modification that

every reference therein to a suit or decree

shall be construed as a reference to a

complaint or the order of the District Forum

thereon."

Sub-sections (4), (5) & (6) of Section 13 lay down that the

Forum shall have the power to summon and enforce the

attendance of any defendant or witness as laid down in the Code

of Civil Procedure. Likewise, it shall have the power to direct for

production of material object producible as evidence, reception

of evidence on affidavit; requisitioning of the report of the

concerned analysis or test from the appropriate laboratory or

from any other relevant source; issuing of any commission for

the examination of any witness and any other matter which may

be prescribed. Sub-section (5) says that every proceeding

before the District Forum shall be judicial proceeding within the

meaning of sections 193 and 228 of the Indian Penal Code and

the District Forum shall be deemed to be a Civil Court for the

purposes of section 195 and Chapter XXVI of the Code of Civil

Procedure. Sub-section (6) says that when there are more than

one consumer, then one of them can sue as required under

Order 1 Rule 8 of the Code of Civil Procedure. Therefore, if

there are number of consumers, one of them can represent the

interest of all. Therefore, as far as the Commission is

concerned, the provisions of the Code of Civil Procedure are

applicable to the limited extent and not all the provisions of the

Code of Civil Procedure are made applicable to the proceedings

to the National Forum. Rules have also been framed under the

Act, known as the Consumer Protection Rules, 1987, where Rule

14 has prescribed the procedure to be followed by the

Commission. Rule 14 says that the name, description and the

address of the complainant and the opposite parties, as the case

may be, so far as they can be ascertained, should be given.

Clause (b) of sub-section (1) which is relevant for our purposes

reads as under:

" (b) the name, description and address of the

opposite party or parties, as the case may be, so far

as they can be ascertained"

Therefore, according to the procedure laid down by the

Rules a complainant has to give the name, description and

address of the opposite party or parties so far as they can be

ascertained.

So far as the filing of complaint directly before the

Commission because of higher valuation, the procedures laid

down in Rule 14 of the Rules have to be followed and in that

case, the name of the opposite party has to be given so far as

they can be ascertained. In the present case, the appellant filed

original petition impleading the Institute where her husband was

admitted as a party but she did not implead the treating doctors

and nurses who were attending on her husband. Though the

Commission directed that necessary parties may be impleaded

and it appears that no effort was made to implead the treating

surgeon or the nursing staff as a party. Therefore, the question is

whether non-impleading the treating surgeon or a nursing staff

can be said to be necessary party and if they are not impleaded

then in that case, the original petition can result into dismissal on

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account of non-joinder of necessary party. So far as the law with

regard to the non-joinder of necessary party under Code of Civil

Procedure, Order 1 Rule 9 and Order 1 Rule 10 of the CPC there

also even no suit shall fail because of mis-joinder or non-joinder

of parties. It can proceed against the persons who are parties

before the Court. Even the Court has the power under Order 1

Rule 10(4) to give direction to implead a person who is a

necessary party. Therefore, even if after the direction given by

the Commission the concerned doctor and the nursing staff who

were looking after the deceased A.K.Garg have not been

impleaded as opposite parties it can not result in dismissal of

the original petition as a whole.

The Consumer Forum is primarily meant to provide better

protection in the interest of the consumers and not to short circuit

the matter or to defeat the claim on technical grounds. Reverting

back to the facts of the present case, whether non-joinder of the

treating doctor, nursing staff can result into dismissal of the claim

petition. As a matter of fact, when a patient is admitted to the

highly commercial hospital like the present institute, a thorough

check up of the patient is done by the hospital authorities, it is

the Institute which selects after the examination of the patient

that he suffers from what malady and who is the best doctor

who can attend, except when the patient or the family members

desire to be treated by a particular doctor or the surgeon as the

case may be. Normally, the private hospitals have a panel of

doctors in various specialities & it is they who chooses who is to

be called. It is very difficult for the patient to give any detail that

which doctor treated the patient and whether the doctor was

negligent or the nursing staff was negligent. It is very difficult for

such patient or his relatives to implead them as parties in the

claim petition. It will be an impossible task and if the claim is to

be defeated on that ground it will virtually be frustrating the

provisions of the Act, leaving the claimant high and dry. We

cannot place such a heavy burden on the patient or the family

members/ relatives to implead all those doctors who have

treated the patient or the nursing staff to be impleaded as party.

It will be a difficult task for the patient or his relatives to

undertake this searching enquiry from the Hospital and

sometimes hospital may not co-operate. It may give such details

and sometimes may not give the details. Therefore, the

expression used in Rule 14 (1) (b), " so far as they can be

ascertained", makes it clear that the framers of the Rules

realized that it will be very difficult specially in the case of

medical profession to pinpoint that who is responsible for not

providing proper and efficient service which gives rise to the

cause for filing a complaint and specially in the case like the one

in hand. The patients once they are admitted to such hospitals,

it is the responsibility of the said hospital or the medical

institutions to satisfy that all possible care was taken and no

negligence was involved in attending the patient. The burden

cannot be placed on the patient to implead all those treating

doctors or the attending staff of the hospital as a party so as to

substantiate his claim. Once a patient is admitted in a hospital it

is the responsibility of the Hospital to provide the best service

and if it is not, then hospital cannot take shelter under the

technical ground that the concerned surgeon or the nursing staff,

as the case may be, was not impleaded, therefore, the claim

should be rejected on the basis of non-joinder of necessary

parties. In fact, once a claim petition is filed and the claimant has

successfully discharged the initial burden that the hospital was

negligent, as a result of such negligence the patient died, then in

that case the burden lies on the hospital and the concerned

doctor who treated that patient that there was no negligence

involved in the treatment. Since the burden is on the hospital,

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they can discharge the same by producing that doctor who

treated the patient in defence to substantiate their allegation that

there was no negligence. In fact it is the hospital who engages

the treating doctor thereafter it is their responsibility. The burden

is greater on the Institution/ hospital than that of the claimant.

The institution is private body and they are responsible to

provide efficient service and if in discharge of their efficient

service there are couple of weak links which has caused

damage to the patient then it is the hospital which is to justify the

same and it is not possible for the claimant to implead all of

them as parties.

In this connection, learned counsel appearing for the

respondent ably tried to make a distinction between 'contract for

service' and 'contract of service'. He submitted that those

persons who are on contract for service are different from those

persons who are on contract of service. He submitted that in a

contract for service there is a contract whereby one party

undertakes to render service e.g. professional or technical

service, to or for another in the performance of which he is not

subject to detailed direction and control but exercises

professional or technical skill and uses his own knowledge and

discretion. A 'contract of service' implies relationship of master

and servant and involves an obligation to obey orders in the work

to be performed and as to its mode and manner of performance.

By this learned counsel submitted that so far as the

permanent staff of the hospital is concerned, there is a contract

of service and negligence thereof the hospital can be made liable

and for that they need not be impleaded as parties in respect of

any negligence of service but the doctors who come on visit,

they are on contract for service over which the hospital has no

control and therefore, unless they are impleaded as parties, no

relief can be given. He also based his submission with reference

to some of the English decisions given in the case of Gold & Ors

v. Essex County Council reported in [1942] 2 All E.R.237 and

Collins v. Hertfordshire County Council & Anr. reported in [1947]

1 All E.R. 633. So far as Gold & Ors. v. Essex County Council is

concerned, in that case, the infant plaintiff was treated by a

radiographer, an employee of the respondents at one of their

county hospitals. By reason of his failure to provide adequate

screening material in giving Grenz-ray treatment the infant

plaintiff suffered injury to her face. It was proved that the

radiographer was fully competent to administer the treatment

given to the infant plaintiff. However, it was held that as the

radiographer was under a contract of service of the respondents,

they were liable for his negligence under the doctrine of

respondeat superior. It was further held that if a local authority

had exercised power under the Public Health Act, 1936, the

obligation undertaken is an obligation to treat and the authority is

liable if the person employed by it to perform the obligation on

its behalf acts without due care. This was a case in which the

radiographer was under regular employment with the county

council. This is a case in which a person was on contract of

service and not on contract for service. Therefore, this case does

not provide any assistance to the present case.

In the case of Collins v. Hertfordshire County Council &

Anr, while undergoing an operation, a patient in a county council

hospital was killed by an injection of cocaine which was given by

the operating surgeon in the mistaken belief that it was procaine.

The operating surgeon had ordered procaine on the telephone,

but the resident house surgeon ( who was then unqualified) had

mis-heard "procaine" as "cocaine", and had told the pharmacist

to dispense a mixture which was, in fact, lethal. The pharmacist

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dispensed the mixture without making further inquiry and without

requiring the written instruction of a qualified person, and the

operating surgeon had given the injection without checking that

it was what he had ordered. The operating surgeon, the house

surgeon, and the pharmacist were all three in the full-time or

part-time employment of the council. In an action by the patient's

widow against the county council and the operating surgeon

alleging that the death was the result of (a) the council's

negligence in the conduct of their hospital, and (b) the operating

surgeon's failure to exercise reasonable care. It was held as

follows:

" (i) The county council, in managing the

hospital, was permitting a dangerous and

negligent system to be in operation, and the

operating surgeon and the house surgeon had

failed to exercise reasonable skill and care.

(ii) the council were able to control the

manner in which the resident medical officer

performed her work and, therefore, the acts of

the house surgeon done in the course of her

employment were acts for which the council

was responsible,

(iii) although the operating surgeon was

a part-time employee on the staff of the

council, the council could not control how he

was to perform his duties and was not

responsible for his want of care."

Learned counsel submitted that in view of the above

decisions since the doctor was on part-time employment, as

such he was not responsible. With respect this distinction which

is tried to be advanced by learned counsel for the respondent,

does not find favour in subsequent decision rendered by the

English Court in the case of Cassidy v. Ministry of Health

reported in [1951] 2 K.B. 343. In this case, the earlier decision in

the case of Gold & Ors. v. Essex County Council reported in

[1942] 2 All E.R.237 came up for consideration. Lord Denning,

J. speaking for himself observed that a hospital authority is

liable for the negligence of doctors and surgeons employed by

the authority under a contract for service arising in the course of

the performance of their professional duties. It was observed as

follows:

" The hospital authority is liable for the

negligence of professional men employed by

the authority under contracts for service as

well as under contracts of service. The

authority owes a duty to give proper treatment

\026 medical, surgical, nursing and the like- and

though it may delegate the performance of

that duty to those who are not its servants, it

remains liable if that duty be improperly or

inadequately performed by its delegates.

The plaintiff entered a hospital for an

operation on his left hand, which necessitated

post-operational treatment. While undergoing

that treatment he was under the care of the

surgeon who performed the operation, who

was a whole-time assistant medial officer of

the hospital, the house surgeon and members

of the nursing staff of the hospital, all of whom

were employed under contracts of service. At

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the end of the treatment it was found that his

hand had been rendered useless. The trial

judge dismissed his action for damages for

negligent treatment which he brought against

the hospital on the ground that he had failed

to prove any negligence. On appeal it was

held that in the circumstances, the doctrine of

res ipsa loquitur applied, and the onus lay on

the hospital authority to prove that there had

been no negligence on its part or on the part

of anyone for whose acts or omission it was

liable, and that onus had not been

discharged."

Therefore, as per the English decisions also the distinction

of 'contract of service' and 'contract for service', in both the

contingencies the courts have taken the view that the hospital is

responsible for the acts of their permanent staff as well as staff

whose services are temporarily requisitioned for the treatment of

the patients. Therefore, the distinction which is sought to be

pressed into service so ably by learned counsel cannot absolve

the hospital or the institute as it is responsible for the acts of its

treating doctors who are on the panel and whose services are

requisitioned from time to time by the hospital looking to the

nature of the diseases. The hospital or the institute is

responsible and no distinction could be made between the two

classes of persons i.e. the treating doctor who was on the staff

of the hospital and the nursing staff and the doctors whose

services were temporarily taken for treatment of the patients. On

both, the hospital as the controlling authority is responsible and it

cannot take the shelter under the plea that treating physician is

not impleaded as a party, the claim petition should be dismissed.

In this connection, a reference may be made to a decision of this

Court in the case of Indian Medical Association v. V.P. Shantha

& ors. reported in AIR 1996 SC 550. There the question had

come up before this Court with regard to the provisions of the

Consumer Protection Act, 1986 vis-`-vis the medical profession.

This Court has dealt with all aspects of medical profession from

every angle and has come to the conclusion that the doctors or

the institutes owe a duty to the patients and they cannot get

away in case of lack of care to the patients. Their Lordships have

gone to the extent that even if the doctors are rendering services

free of charge to the patients in the Government hospitals, the

provisions of the Consumer Protection Act will apply since the

expenses of running the said hospitals are met by appropriation

from the Consolidated Fund which is raised from the taxes paid

by the tax payers. Their Lordships have dealt with regard to the

definition of "service" given in Section 2(1)(o) of the Consumer

Protection Act, 1986, and have observed as follows:

" The service rendered free of charge to

patients by doctors/ hospitals whether non-

Govt. or Govt. who render free service to

poor patients but charge fee for services

rendered to other patients would, even though

it is free, not be excluded from definition of

service in S.2(1)(o). The Act seeks to protect

the interests of consumers as a class. To hold

otherwise would mean that the protection of

the Act would be available to only those who

can afford to pay and such protection would

be denied to those who cannot so afford,

though they are the people who need the

protection more. It is difficult to conceive that

the legislature intended to achieve such a

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result. Another consequence of adopting a

construction, which would restrict the

protection of the Act to persons who can

afford to pay for the services availed by them

and deny such protection to those who are not

in a position to pay for such services, would

be that the standard and quality of services

rendered at an establishment would cease to

be uniform. It would be of a higher standard

and of better quality for persons who are in a

position to pay for such service while the

standard and quality of such service would be

inferior for person who cannot afford to pay for

such service and who avail the service without

payment. Such a consequence would defeat

the object of the Act. All persons who avail the

services by doctors and hospitals who give

free service to poor patients but charge fee for

others, are required to be treated on the same

footing irrespective of the fact that some of

them pay for the service and others avail the

same free of charge. Most of the doctors and

hospitals work on commercial lines and the

expenses incurred for providing services free

of charge to patients who are not in a position

to bear the charges are met out of the income

earned by such doctors and hospitals from

services rendered to paying patients. The

Government hospitals may not be commercial

in that sense but on the overall consideration

of the objectives and the scheme of the Act it

would not be possible to treat the

Government hospitals differently. In such a

situation the persons belonging to "Poor class"

who are provided services free of charge are

the beneficiaries of the service which is hired

or availed of by the "paying class". Service

rendered by the doctors and hospitals who

render free service to poor patients and

charge fees for others irrespective of the fact

that part of the service is rendered free of

charge, would nevertheless fall within the

ambit of the expression "service" as defined in

Section 2(1)(o) of the Act."

Therefore, the distinction between the 'contract of service'

and 'contract for service' has been very elaborately discussed in

the above case and this Court has extended the provisions of

the Consumer Protection Act, 1986, to the medical profession

also and included in its ambit the services rendered by private

doctors as well as the Government Institutions or the non-

Governmental institutions, be it free medical services provided

by the Government Hospitals. In the case of Achutrao Haribhau

Khodwa & Ors. v. State of Maharashtra & Ors. reported in (1996)

2 SCC 634, Their Lordships observed that in cases where the

doctors act carelessly and in a manner which is not expected of

a medical practitioner, then in such a case an action on torts

would be maintainable. Their Lordships further observed

that if the doctor has taken proper precaution and despite that if

the patient does not survive then the Court should be very slow

in attributing negligence on the part of the doctor. It was held as

follows:

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" A medical practitioner has various

duties towards his patient and he must act

with a reasonable degree of skill and

knowledge and must exercise a reasonable

degree of care. This is the least which a

patient expects from a doctor. The skill of

medical practitioners differs from doctor to

doctor. The very nature of the profession is

such that there may be more than one course

of treatment which may be advisable for

treating a patient. Courts would indeed be

slow in attributing negligence on the part of a

doctor if he has performed his duties to the

best of his ability and with due care and

caution. Medical opinion may differ with

regard to the course of action to be taken by

a doctor treating a patient, but as long as a

doctor acts in a manner which is acceptable

to the medical profession and the court finds

that he has attended on the patient with due

care, skill and diligence and if the patient still

does not survive or suffers a permanent

ailment, it would be difficult to hold the doctor

to be guilty of negligence. But in cases where

the doctors act carelessly and in a manner

which is not expected of a medical

practitioner, then in such a case an action in

torts would be maintainable."

Similarly, our attention was invited to a decision in the case of

Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S.

Ahluwalia & Anr. reported in (1998) 4 SCC 39. Their Lordships

observed as follows:

" 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 skill of a reasonably

competent doctor."

Therefore, as a result of our above discussion we are opinion

that summary dismissal of the original petition by the

Commission on the question of non-joinder of necessary parties

was not proper. In case, the complainant fails to substantiate the

allegation, then the complaint will fail. But not on the ground of

non-joinder of necessary party. But at the same time the

hospital can discharge the burden by producing the treating

doctor in defence that all due care and caution was taken and

despite that patient died. The hospital/Institute is not going to

suffer on account of non-joinder of necessary parties and

Commission should have proceeded against hospital Even

otherwise also the Institute had to produce the concerned

treating physician and has to produce evidence that all care and

caution was taken by them or their staff to justify that there was

no negligence involved in the matter. Therefore, nothing turns in

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not impleading the treating doctor as a party. Once an allegation

is made that the patient was admitted in a particular hospital and

evidence is produced to satisfy that he died because of lack of

proper care and negligence, then the burden lies on the hospital

to justify that there was no negligence on the part of the treating

doctor/ or hospital. Therefore, in any case, the hospital which is

in better position to disclose that what care was taken or what

medicine was administered to the patient. It is the duty of the

hospital to satisfy that there was no lack of care or diligence. The

hospitals are institutions, people expect better and efficient

service, if the hospital fails to discharge their duties through their

doctors being employed on job basis or employed on contract

basis, it is the hospital which has to justify and by not

impleading a particular doctor will not absolve the hospital of

their responsibilities.

In the result, we allow this appeal, set aside the order

dated 6.2.2003 passed by the National Consumer Disputes

Redressal Commission, New Delhi in Original Petition No.121 of

1995 and remit back the original petition to the National

Consumer Disputes Redressal Commission to be decided in

accordance with law. No order as to costs.