1

Name: Raaghav Sapra

Roll no. 312/20
Exam Roll No. 18664
Section: F

UNIVERSITY INSTITUTE OF LEGAL STUDIES- COMPULSORY MOOT

9TH SEMESTER, 2024

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION

IN THE MATTER:

BETWEEN

RAHUL

Versus

DYAL HOSPITAL, LUDHIANA

CASE NO.- / _ /24

(Under Section 34 of the Consumer Protection Act, 2019)

UPON SUBMISSION TO THE HON’BLE JUDGES OF THE DISTRICT CONSUMER DISPUTE REDRESSAL
COMMISSION

WRITTEN SUBMISSIONS ON BEHALF OF THE DEFENDANTS

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TABLE OF CONTENTS

S.NO. TABLE OF CONTENTS PG.NO.

1. LIST OF ABBREVIATIONS 4
2. INDEX OF AUTHORITIES 7
3. STATEMENT OF JURISDICTION 10
4. STATEMENT OF FACTS 11
5. STATEMENT OF ISSUES 12
6. SUMMARY OF ARGUMENTS 13
7. ARGUMENTS ADVANCED 15

7(A). ISSUE-I:
WHETHER THE MANAGEMENT OF DYAL HOSPITAL,
LUDHIANA COMMITTED ANY ACT OF MEDICAL
NEGLIGENCE?

[1.1] Adherence to Standard Medical Procedure and applicability of

Bolam Test in Medical Negligence Cases.
[1.2] Emergency situation and consent and knowledge of risk
[1.3] Post surgery complications and availability of proper medical
care and equipment

ISSUE-II:
WHETHER THERE WAS ANY DEFICIENCY OF SERVICE
FROM THE MANAGEMENT OF DYAL HOSPITAL,
LUDHIANA AS PER CONSUMER PROTECTION ACT, 2019

[2.1] No deficiency in service

[2.2] Justification of hospital charges

[2.3] Availability of proper medical care and equipment.

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8 PRAYER 25

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LIST OF ABBREVIATIONS

S. NO. ABBREVIATIONS EXPANSION

1. & And

2. A.I.R All India Reporter

3. @ At

4. Anr. Another

5. Bom. Bombay

6. Cr.P.C Code of Criminal Procedure

7. Cri.L.J Criminal Law Journal

8. Art. Article

9. Assoc. Association

10. Guj. Gujarat

11. HP Himachal Pradesh

12. Ed. Edition

13. ILR Indian Law Reporter

14. IPC Indian Penal Code

15. Comm’n Commission

Jharkhand
16. Jhar.

17. Crim. Criminal

18. Doc. Document

Extraordinary Chambers in the Courts of
19. No. Cambodia
European Commission of
20. Ors. Human Rights

21. Econ. Economic

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22. Edn. Edition

23. No. Number

24. Pat. Patna

25. Pg. Page No.

26. r/w Read with

Supreme Court
27. SC
Supreme Court Cases
29. SCC

28. SCR Supreme Court Reporter

29. S. Section

30. Tri. Tripura

Under Article
31. u/a

32. Id. Ibidem

33. u/s Under Section

34. Intl. International

35. UOI Union OF India

36. No. Number

37. Ors. Others

38. UP Uttar Pradesh

39. Para. Paragraph

40. Vol. Volume

41. r/w Read with

42. Rep. Report

National Anti Doping Agency
43. NADA

44. Sess. Session

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45. TC Trial Chamber

46. Trib. Tribunal

47. WADA World Anti Doping Agency

48. U.N.T.S. United Nations Treaty Series

49. u/a Under article

50. u/s Under Section

51. UDHR Universal Declaration on Human Rights

52. UN United Nations

53. UNCAT United Nations Convention Against Torture

United Nations Convention on the Rights of
54. UNCRC the Child

55. UNDHR United Nations Declaration on Human Rights

United Nations High Commissioner for
56. UNHCHR Human Rights

57. UNSC United Nations Security Council

58. UNSCR United Nations Security Council Resolution

59. VCLT Vienna Convention on the Law of Treaties

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INDEX OF AUTHORITIES

S. NO. CASES
1 Bolam v. Friern Hospital Management Committee

2 Jacob Mathew v. State of Punjab

3 Achutrao Haribhau Khodwa v. State of Maharashtra

4 Samira Kohli v. Prabha Manchanda

5 Kanchan Singh v. Maa Sharda Hospital and Anr

6 Ravi Kumar and Anr. V. Dr. M. Syam Sundar

7 Kusum Sharma v. Batra Hospital and Medical Research Centre

8 Mrityunjay Kumar and Ors v. Pushpanjali Crosslay Hospital and Ors

9 Dr. Harish Kumar Khurana v. Joginder Singh and Others

10 Kusum Sharma v. Batra Hospital

11 Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka

12 Indian Medical Association v. V.P. Shantha

13 The State Of West Bengal vs Anwar All Sarkarhabib Mohamed

14 Kle society’s hospital & medical research centre, belgaum & anr. v. Master
shivaraj @ shivakumar. 2015;(IV) CPJ 206 (NC), Karnataka

15 Bsr Cancer Hospital Pvt. Ltd. & Ors. v. P. Raju Lyer. 2015;(IV) CPJ 691 (NC),
Chhattisgarh Court verdicts

16 New India assurance co. Ltd. & anr. v. Suraj bhan khangwal & ors. 2015;(IV) CPJ 509 (NC),
Haryana

17 N. Laxmi v. Mahesh Hospital & Research Foundation & Ors. 2015;(IV) CPJ 555 (NC), Andhra
Pradesh

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S.NO. BOOKS

POLLOCK & MULLA, THE INDIAN CONTRACT ACT (16th ed. LexisNexis
1. 2021).

RITU GUPTA, LAW OF CONTRACT (1st ed. LexisNexis 2015).

2.

RITU GUPTA, LAW OF CONTRACT (1st ed. LexisNexis 2015).

3.

CONSTITUTION OF INDIA BY DURGA DAS BASU

4.

H.K. SAHARAY, DUTT ON CONTRACT: THE INDIAN CONTRACT ACT,

5. 1872 (11th ed. Eastern Law House, 2018).

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S. NO. DICTIONARIES

BRYANA. GARNER, BLACK’S LAW DICTIONARY (8thed.West

1.
Thompson2004).

DR. A. R. LAKSHMAN AJ, WHARTON’S LAW LEXICON (15thed.Universal

2.
Law Publishing Co., 2011)

3. P. RAMANATH AIYER, THE LAW LEXICON (2nded. Lexis Nexis 2002)

SHORTER OXFORD ENGLISH DICTIONARY (5thed.Oxford University Press

4.
2002).

THE CHAMBERS DICTIONARY (15thed.Reprint Allied Chambers (India) Pvt

5.
Ltd. 2011).

S. NO. ONLINE DATABASE

1. EBC

2. Hein Online

3. JSTOR

4. Lexis Nexis

5. Manupatra

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STATEMENT OF JURISDICTION

The plaintiffs have approached this court u/s 34 of The Consumer Protection Act, 2019 which states
as follows:
SECTION 34: JURISDICTION OF DISTRICT COMMISSION.
(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to
entertain complaints where the value of the goods or services paid as consideration does not
exceed one crore rupees:
Provided that where the Central Government deems it necessary so to do, it may prescribe such
other value, as it deems fit.
(2) A complaint shall be instituted in a District Commission within the local limits of whose
jurisdiction—
a. the opposite party or each of the opposite parties, where there are more than
one, at the time of the institution of the complaint, ordinarily resides or carries
on business or has a branch office or personally works for gain; or
b. any of the opposite parties, where there are more than one, at the time of the
institution of the complaint, actually and voluntarily resides, or carries on
business or has a branch office, or personally works for gain, provided that in
such case the permission of the District Commission is given; or
c. the cause of action, wholly or in part, arises; or
d. the complainant resides or personally works for gain.

(3) The District Commission shall ordinarily function in the district headquarters and may perform
its functions at such other place in the district, as the State Government may, in consultation
with the State Commission, notify in the Official Gazette from time to time.

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STATEMENT OF FACTS

Rahul, a businessman from Patiala, filed a complaint against Dyal Hospital in Ludhiana, alleging
medical negligence that led to the death of his wife, Monika. Monika, originally from Ludhiana,
became pregnant in November 2021. According to her attending physician, she was expected to
deliver her baby in the first week of August 2022. At the time, both Rahul and Monika were living at
their permanent residence in Patiala, where Monika received prenatal care from Dr. Rohit Sharma, a
specialist in Obstetrics and Gynecology. Following the doctor's advice, Rahul had Monika undergo
various pregnancy tests at Chhabra Clinical Laboratory and Riya X-Ray and Imaging Centre, both in
Patiala. The test results showed that Monika was experiencing a normal pregnancy, with a single
fetus, and that she was physically and mentally healthy.

In May 2022, Monika's maternal family requested that she move to Ludhiana so her mother could
take better care of her during the late stages of her pregnancy. Rahul agreed and made arrangements
for the move. Before transferring Monika from Patiala, Rahul visited Dyal Hospital in Ludhiana to
ensure that the hospital had the necessary facilities for the delivery. After being reassured by the
hospital management that all necessary provisions were available, Rahul and Monika shifted to
Ludhiana. On 30th July 2022, Monika was admitted to Dyal Hospital in good health, showing no
signs of complications.

However, on 5th August 2022, around 2 p.m., the hospital management informed Rahul that a
normal delivery was not possible and that they had already taken Monika to the operating room for
an emergency cesarean section. This sudden decision, made without prior consultation, surprised
Rahul, and he rushed to the hospital. While he anxiously waited for updates, the hospital
management informed him at 3 p.m. that the surgery was successful and that a healthy baby boy had
been delivered. However, they also told him that Monika was still unconscious due to the effects of
anesthesia, but assured him that she would regain consciousness soon.

Unfortunately, Monika remained unconscious for the next several hours. Despite still being in this
state, she was shifted to the general ward at around 8:30 p.m. Her condition did not improve
overnight, and at approximately 4 a.m. on 6th August 2022, Monika was declared dead by the
attending doctors. The hospital management then issued a bill for Rs. 55,000, dated 6th August
2022, and allowed Rahul to take Monika's body only after he had paid the full amount.

Deeply aggrieved, Rahul decided to pursue legal action. On 8th April 2023, he filed a formal
complaint with the Consumer Forum, accusing Dyal Hospital of negligence and carelessness in
providing medical care, treatment, and attention to his wife. He claimed that the hospital's
inadequate care and deficient service resulted in Monika's death. In his complaint, Rahul sought Rs.
50 lakhs in monetary compensation for the emotional distress, loss, and hospital's failure to fulfill its
responsibilities.

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STATEMENT OF ISSUES

ISSUE NO. 1

WHETHER THE MANAGEMENT OF DYAL HOSPITAL, LUDHIANA COMMITTED ANY

ACT OF MEDICAL NEGLIGENCE?

ISSUE NO. 2

WHETHER THERE WAS ANY DEFICIENCY OF SERVICE FROM THE MANAGEMENT OF

DYAL HOSPITAL, LUDHIANA AS PER CONSUMER PROTECTION ACT, 2019

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SUMMARY OF ARGUMENTS

ISSUE NO.1: WHETHER THE MANAGEMENT OF DYAL HOSPITAL,

LUDHIANA COMMITTED ANY ACT OF MEDICAL NEGLIGENCE?

It is humbly submitted that the management of Dyal Hospital has not committed any act of medical
negligence and therefore the present complaint is filed only degrade the reputation of the hospital
and the doctors. The doctors applied there correct knowledge and skill to treat the patient and
followed proper set standards given by the Indian Medical Council. The above stated issue will be
dealt in the following sub-issues: [1.1] Adherence to Standard Medical Procedure and applicability
of Bolam Test in Medical Negligence Cases. [1.2] emergency situation and consent and knowledge
of risk, [1.3] post surgery complications and availability of proper medical care and equipment

ISSUE NO. 2: WHETHER THERE WAS ANY DEFICIENCY OF SERVICE

FROM THE MANAGEMENT OF DYAL HOSPITAL, LUDHIANA AS PER
CONSUMER PROTECTION ACT, 2019

It is humbly submitted that there was no such act committed by the management of Dyal Hospital,
Ludhiana which could be termed as ‘Deficiency of Service’ as per the provisions of Consumer
Protection Act, 2019. The above said issue will be dealt in detail in the following sub-issues: [2.1] no
deficiency in service, [2.2] justification of hospital charges, [2.3] availability of proper medical care
and equipment.

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ARGUMENTS ADVANCED

ISSUE NO. 1: WHETHER THE MANAGEMENT OF DYAL

HOSPITAL, LUDHIANA COMMITTED ANY ACT OF MEDICAL
NEGLIGENCE?

“The good physician treats the disease; the great physician treats the patient who has the disease.”

It is humbly submitted that the management of Dyal Hospital has not committed any act of medical
negligence and therefore the present complaint is filed only degrade the reputation of the hospital
and the doctors. The doctors applied there correct knowledge and skill to treat the patient and
followed proper set standards given by the Indian Medical Council. The above stated issue will be
dealt in the following sub-issues: [1.1] Adherence to Standard Medical Procedure and applicability
of Bolam Test in Medical Negligence Cases. [1.2] emergency situation and consent and knowledge
of risk, [1.3] post surgery complications and availability of proper medical care and equipment

[1.1] ADHERENCE TO STANDARD MEDICAL PROCEDURE AND APPLICABILITY OF

BOLAM TEST IN MEDICAL NEGLIGENCE CASES
[1.1.1] It is humbly submitted that the doctors and physicians of Dyal Hospital have followed the
standard medical protocols applicable to obstetrics and gynecology in performing the cesarean section
(C-section). According to medical guidelines, the decision to perform a C-section is based on clinical
indications like fetal distress, maternal complications, or failure of labor to progress. It is therefore
most humbly submitted that proper set standards were followed by the hospital and no act of medical
negligence has been conducted by them.
[1.1.2] It is humbly submitted that Indian courts have conformed to the test aid down in the Bolam
case and have adhered to the same in all medical negligence litigation. It was a test whereby the
defendants conduct is tested against the normal usage of his professional calling. This test is one that
is applied to all kinds of negligence and not only medical negligence. In the case of Bolam v. Friern
Hospital Management Committee1, “McNair J set out the test for determining the standard of care
owed by medical professionals to their patients (sometimes referred to as the ‘Bolam test’). The
professional will not be in breach of their duty of care if they acted in a manner which was in
accordance with practices accepted as proper by a responsible body of other medical professionals
with expertise in that particular area. If this is established, it does not matter that there are others
with expertise who would disagree with the practice.”

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1
[1957] 1 WLR 583
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[1.1.3] It is humbly submitted that in a similar case of Jacob Mathew v. State of Punjab2, the Bolam
Test was adopted by the Supreme Court of India and stated that, “Negligence is the failure to uphold
a responsibility due to doing something that a sensible and reasonable person would avoid doing or
failing to do something that a reasonable person would do under the circumstances. Negligence in the
setting of the medical profession necessitates a unique approach to therapy. In civil and criminal law,
the idea of carelessness is construed differently. What is carelessness under civil law may not always
be carelessness under criminal law. A lawyer never assures clients that they will prevail in their legal
matters. A doctor will not always guarantee that the patient will recover fully. A surgeon cannot
promise that the procedure's results will always be in their best interests and ultimately benefit the
individual who underwent the procedure. The only assurance that such a professional may provide
explicitly or implicitly is that he has the necessary training in the area of the profession in which he
works and that he completes the tasks assigned to him with the necessary efficiency. Use to hone your
abilities. This is what the whole person contacting a professional can expect. Given this standard, a
professional may be liable for negligence on one of two conclusions: either he did not possess the
requisite skills that he had accepted or had not exercised, given appropriate merit in the case. The
skills he had. The standard to be applied for doing justice, whether or not the person accused has been
negligent, would be an ordinary competent person exercising ordinary skills in that profession. It is
not necessary for every professional in this branch to have the best level of experience”
[1.1.4] It is humbly submitted that Bolam test has broadly been accepted as the general rule also
in the case of Achutrao Haribhau Khodwa v. State of Maharashtra 3 in which Supreme Court of
India held that, “The skill of medical practitioners differs from doctor to doctor. The 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.”

2
AIR 2005 SUPREME COURT 3180
3 -
1996 SCC (2) 634
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[1.2] EMERGENCY SITUATION AND CONSENT AND KNOWLEDGE OF RISK

[1.2.1] It is humbly submitted that the decision of the doctors of Dyal Hospital to perform the C-
section was based on the medical necessity and urgency of the situation. A sudden complication during
labor may have posed a risk to both the mother i.e. Monika and child, requiring immediate action by
the attending doctors of the hospital. Therefore, it is most humbly submitted that delaying the operation
to wait for the family's consent could have endangered Monika’s life and that of the child. The
emergent condition warranted the immediate C-section, and informing the husband afterward was
appropriate under the circumstances. Under Indian law, doctors are permitted to take necessary actions
in emergency situations to protect the life and health of the patient without prior consent, especially
when delay could lead to harm
[1.2.2] It is humbly submitted that in the case of Samira Kohli v. Prabha Manchanda4, the
Supreme Court stated that, “Consent is an essential part of any medical procedure and is a requisite
before performing any procedure on an individual. If there was no real consent and then the surgery
by Dr. Prabha Manchanda will be unlawful, thus it might attract liability under tortious act of
negligence or assault and battery. In an emergency medical situation, specific consent for each
procedure may not be required if there is implied consent or when the delay could harm the patient.”
[1.2.3] It is humbly submitted that the plaintiff was informed of the hospital’s facilities
beforehand, and Monika was admitted with the understanding that the hospital would provide the
necessary care during delivery. In an emergency medical situation, specific consent for each procedure
may not be required if there is implied consent or when the delay could harm the patient. Cesarean
section is a common procedure with inherent risks, and the fact that Monika unfortunately succumbed
to complications does not automatically mean there was any act of medical negligence committed by
the physicians of Dyal Hospital.
[1.2.4] It is humbly submitted that in the case of Kanchan Singh v. Maa Sharda Hospital and
Anr.5, the National Consumer Dispute Redressal Commission held that, “A mere deviation from
normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere
accident is not evidence of negligence. So also an error of judgment on the part of a professional is
not negligence per se. Higher the acuteness in emergency and higher the complication, more are the
chances of error of judgment. At times, the professional is confronted with making a choice between
the devil and the deep sea and he has to choose the lesser evil. The 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 a procedure involving lesser risk but
higher chances of failure. So long as it can be found that the procedure which was in fact adopted was

4
AIR 2008 SUPREME COURT 1385
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5
CONSUMER CASE NO. 1282 OF 2015, New Delhi
 17
one which was acceptable to medical science as on that date, the medical practitioner cannot be held
negligent merely because he chose to follow one procedure and not another and the result was a
failure. No sensible professional would intentionally commit an act or omission which would result in
loss or injury to the patient as the professional reputation of the person is at stake. A single failure
may cost him dear in his career.”
[1.2.5] It is humbly submitted that in the matter of Ravi Kumar and Anr. V. Dr. M. Syam
Sundar6, an adult female was undergoing regular antenatal checkups at the hospital. About nine
months into her pregnancy, she was admitted to the hospital with severe abdominal pain. She
underwent an emergency LSCS and delivered a dead fetus. The allegations were that the regular
checkup was inadequate and the doctor had failed to take an expert opinion for better treatment leading
to the baby's death. The National Commission observed that the hospital where the patient was
admitted was in a remote area with limited resources and facilities to carry out investigations and
treatment. The doctor was a qualified gynecologist with 20 years of experience and sufficient skill in
dealing with the case. Her condition was diagnosed as threatened rupture of the uterus, and the
operation was conducted with the primary objective of saving her life.

[1.3] POST SURGERY COMPLICATIONS AND AVAILABILITY OF PROPER MEDICAL

CARE AND EQUIPMENT
[1.3.1] It is humbly submitted that Monika’s tragic death post-surgery was due to unforeseeable
complications and not the result of medical negligence. Post-operative complications, such as
reactions to anesthesia, are known risks that can occur despite the best medical care and attention. It
is most humbly submitted that the hospital ensured Monika’s vitals were monitored, and she was
transferred to the ward only when deemed stable.
[1.3.2] It is humbly submitted that in the matter of Kusum Sharma v. Batra Hospital and
Medical Research Centre7, The Supreme Court of India held that, “the medical professionals are
entitled to get protection so long as they perform their duties with reasonable skill and competence
and in the interest of the patients. The interest and welfare of the patients have to be paramount for
the medical professionals. As long as the doctors have performed their duties and exercised an
ordinary degree of professional skill and competence, they cannot be held guilty of medical
negligence. The National Commission was justified in dismissing the complaint of the appellants. No
interference is called for. The appeal being devoid of any merit is dismissed. In view of the peculiar
facts and circumstances of this case the parties are directed to bear their own costs.”
[1.3.3] It is humbly submitted that the hospital provided adequate facilities and care as required
by law. Rahul was assured that the hospital had all necessary infrastructure for safe childbirth, and

6
2017;(I) CPJ 248 (NC)
7 -
2010 (3) SCC 480
 18
they fulfilled their promise by conducting the surgery with qualified professionals and in appropriate
medical conditions. The medical team took all steps to ensure the health of the child and the mother.
It is most humbly submitted that according to consumer protection laws, a hospital is obligated to
provide services that meet a reasonable standard of care but is not expected to guarantee positive
outcomes in every case. The Consumer Protection Act, 2019, requires a claimant to prove deficiency
in service, which in this case, was not present.
[1.3.4] It is humbly submitted that in the matter of Mrityunjay Kumar and Ors v. Pushpanjali
Crosslay Hospital and Ors8, Aparna Singh, an Advocate, aged about 33 years, consulted OP-2, Dr.
Shubha Saxena - Gynecologist & Obstetrician for her pregnancy. Her expected date of delivery (EDD)
was 22.09.2011. It was alleged that the OP-2 examined her casually. She did not record weight or BP
as mandatory. Few tests including an ultrasonography (USG) examination found to be normal.
Thereafter, the patient was under regular Antenatal check up (ANC) under the OP-2 till 09.09.2011.
Total 18 OPD/ANC consultations were held. In the month of August, 2011, she was diagnosed as case
of 'gestational diabetes'. The OP-2, for the first time, on 06.09.2011, examined the BP and found it
was high, therefore, she advised delivery by Lower Segment Caesarian Section (LSCS) before EDD.
The OP-2 examined the patient on 09.09.2011, and recorded BP 160/100 mm of Hg in her own hand
writing and prescribed injection Betnesol 12 mg IM (steroid). Complainant No. 1 got his wife admitted
in Pushpanjali Crosslay Hospital at Ghaziabad (hereinafter referred to as the 'OP-1 / Hospital'. The
National Consumer Dispute Redressal Commission held that OP-1 is not liable for medical negligence
as the wife was not checked properly by the previous doctor i.e. OP-2. The commission relied on
various medical literature/articles to come to a conclusion such as Stoelting's anesthesia - 5th edition,
Journal of American College of Cardiology, Extract from Dr Mukul Kapoor - peripartum
cardiomyopathy - Year book of Anesthesia, and etc.
[1.3.5] It is further submitted that there is no clear causal link between the hospital’s actions and
Monika’s death. Petitioner’s claim of medical negligence lacks medical evidence to prove that the
hospital’s actions or omissions directly caused the death. It is most humbly submitted that Dyal
Hospital provided necessary and competent medical care under the given circumstances. It adhered to
medical standards, acted in good faith, and managed the emergency situation appropriately, which
does not amount to negligence under Indian law.
[1.3.6] It is further submitted that during the initial days of pregnancy, all the necessary medical
advice and treatment was given to the wife of plaintiff by Dr. Rohit Sharma, a specialist in Obstetrics
and Gynecology in Patiala. That on the advice of the said doctor, petitioner got his wife’s pregnancy
test done mostly at Chhabra Clinical Laboratory and Riya X-Ray and Imaging Centre at Patiala and
as per the tests conducted by them the wife was carrying normal pregnancy with single fetus. It is
submitted that the tests and process adopted by the previous doctors and hospital might have been

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8
CC 292/2012
 19
wrong due to which the patient might have died. Therefore, there is no act of medical negligence done
by the physicians and doctors of Dyal Hospital, Ludhiana.

ISSUE NO. 2: WHETHER THERE WAS ANY DEFICIENCY OF

SERVICE FROM THE MANAGEMENT OF DYAL HOSPITAL,
LUDHIANA AS PER CONSUMER PROTECTION ACT, 2019

It is humbly submitted that there was no such act committed by the management of Dyal Hospital,
Ludhiana which could be termed as ‘Deficiency of Service’ as per the provisions of Consumer
Protection Act, 2019. The above said issue will be dealt in detail in the following sub-issues: [2.1] no
deficiency in service, [2.2] justification of hospital charges, [2.3] availability of proper medical care
and equipment.

[2.1] NO DEFICIENCY IN SERVICE

[2.1.1] It is submitted that deficiency is defined under Section 2(11) of Consumer

Protection Act, 2019[3], Section 2(11) reads as;
"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service and includes:

1. any act of negligence or omission or commission by such person which causes

loss or injury to the consumer; and
2. deliberate withholding of relevant information by such person to the consumer;

[2.1.2] The respondent further brings to the notice of the court that the claim that the hospital
provided deficient service is unfounded. The hospital ensured that Monika received all necessary
medical care, from admission to surgery, and post-operative monitoring. The doctors and staff
acted responsibly and in line with their professional duties. That to claim compensation for
medical negligence under the Consumer Protection Act, 2019, the burden of proof lies with the
complainant to show a clear deficiency in service. Without evidence that the hospital or doctors
acted negligently, this claim should not hold. The unfortunate outcome of her death was not
caused by any negligence or shortcoming on their part, but by unforeseen medical complications.
The hospital’s- adherence to established standards of care, prompt decision-making in an
 20
emergency, and provision of proper facilities, combined with the absence of any evidence of
gross negligence, support their case that no deficiency in service occurred.

[2.1.3] The respondent humbly submits that in the case of Dr. Harish Kumar Khurana
v. Joginder Singh and Others9, the Supreme Court of India stated that,” Negligence means
absence of due care and caution. It is a very subjective terminology and varies from fact to fact.
In the cases of medical negligence, the principle of res ipsa loquitor has been followed. The
meaning of this latin maxim means that "things speak for itself" i.e. the occurrence of some
accident assumes negligence. The Apex Court of India interpreted this maxim and designed a
test for its application. The Supreme Court held that the doctrine of res ipsa loquitor can be
applied when the negligence alleged is so glaring and not based on the perception.

It further said that, regards to the present case that the material evidences on record showcases
that the advice by the appellant is in the course of medical practice and the best possible recourse
has been adopted. The Court said that merely consent was not obtained explicitly separately for
second surgery cannot be presumed to be medical negligence; moreover, when the consent for
first surgery was obtained and also the modus operandi was discussed with the patient and the
respondent, the consent for second surgery was implied. The first surgery was merely the
prerequisite for the main surgery i.e. the second one.

Regarding, medical negligence the court properly held that despite following due medical
procedure, if the patient dies or treatment rendered found to be unsuccessful, medical negligence
cannot be presumed because the treatment is basically the methods followed with due caution to
cure the patient but it is subjective from person to person.

Therefore, in the present case medical negligence was not attributed upon the appellant.”

[2.1.4] It is humbly contended to the wisdom of the court that in the case of Kusum Sharma v.
Batra Hospital10, it was held by the Supreme Court that a doctor often adopts a procedure which
involves a higher element of risk, but in doing so he honestly believes that it will provide greater
chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of his/her
suffering and it did not yield the desired result, this may not amount to medical negligence.

9
AIR 2021 SUPREME COURT 4690
10 -
2010 (3) SCC 480
 21

[ 2.2 ] JUSTIFICATION OF HOSPITAL CHARGES

[2.2.1] It is humbly submitted that the amount charged (Rs. 55,000) was for the services
rendered, which included the cesarean operation, post-operative care, and other medical
treatments. The charges were appropriate for the services provided, and withholding the
body for unpaid bills is within the rights of the hospital, as per hospital policy. As long as
the charges were reasonable and within standard rates for the services, it can be said that
there was no exploitation. Hospitals are entitled to recover costs associated with treatment.
Under the Consumer Protection Act, a claim of excessive billing must be substantiated with
evidence showing that the hospital overcharged beyond the standard rates for services
rendered. Without such evidence, this aspect of the complaint would not hold up.

[2.2.2] It is further submitted that in the case of Nizam's Institute of Medical Sciences
v. Prasanth S. Dhananka11, the court held that, “The evidence in the present case has to
be evaluated in the background of the above observations. It is clear that a mere
misjudgment or error in medical treatment by itself would not be decisive of negligence
towards the patient and the knowledge of medical practice and procedure available at the
time of the operation and not at the date of trial, is relevant. It is also evident that a doctor
rendering treatment to a patient is expected to have reasonable competence in his field.”

[2.2.3] The respondent further brings to the notice of the Hon’ble Court that Monika
was monitored continuously after surgery and was only shifted to the general ward when
deemed medically stable. The fact that she remained unconscious due to anesthesia is not
necessarily a sign of negligence but a recognized medical complication. The hospital staff
continued to monitor her, and despite these efforts, she tragically passed away due to
unforeseen post-operative complications. Courts have recognized that not every unfortunate
outcome is the result of negligence. In Kusum Sharma v. Batra Hospital12, it was held
that in the event of an unfortunate outcome, it is essential to prove that the medical
professional acted with gross negligence or violated accepted standards of care.

[2.2.4] The respondent hereby submits that Monika’s death was not directly caused by
any fault or imperfection in the care provided. Post-surgical complications, especially related
to anesthesia, can sometimes result in adverse outcomes despite the hospital's best efforts.
The hospital took all necessary steps to prevent such a tragedy, but unforeseen medical events

11
CIVIL APPEAL - NO.4119 OF 1999
12
2010 (3) SCC 480
 22
can still occur.

[2.3] AVAILABILITY OF PROPER MEDICAL CARE AND EQUIPMENT

[2.3.1] The respondent humbly submits that Dyal Hospital had all the necessary medical
infrastructure and equipment to handle childbirth, including complicated cases requiring a
cesarean section. The fact that Monika was admitted to the hospital in normal condition and
underwent a successful delivery via C-section indicates that the hospital had appropriate
facilities in place, such as a well-equipped operation theatre, neonatal care facilities, and
post-operative monitoring equipment. The hospital was prepared to handle both natural
delivery and emergency surgical procedures. The equipment used during Monika’s surgery,
such as anesthesia equipment, surgical instruments, and fetal monitoring devices, were in
proper working condition. Under Indian law, hospitals are required to provide a standard of
care that is consistent with that of any reasonably competent hospital. As per the Consumer
Protection Act, 2019, a hospital may be liable for negligence or deficiency in service if it
fails to provide adequate equipment or maintain necessary facilities. However, in this case,
the fact that the surgery was conducted successfully and the child was delivered safely
demonstrates that proper equipment and infrastructure were in place.

[2.3.2] The respondent further brings to the wisdom of the Hon’ble Bench that the
availability of properly qualified and experienced medical personnel at Dyal Hospital
strengthens the argument that adequate care was provided. The cesarean section was
performed by qualified obstetricians and gynecologists, with the necessary support from
anesthesiologists and nursing staff. The decision to proceed with the cesarean section was
made by experienced medical professionals who acted based on their clinical judgment. The
presence of an experienced surgical team during the C-section and skilled post-operative
care staff ensured that Monika received proper attention throughout her stay. The doctors
and nurses were trained in handling pregnancy-related complications, ensuring that
Monika’s surgery and post-operative monitoring were handled according to medical
guidelines.

[2.3.4] It is humbly submitted that Monika was admitted to Dyal Hospital in a stable
condition and was monitored regularly. Her pregnancy was categorized as normal, but
complications arose on the day of delivery, requiring an emergency cesarean section. The
hospital’s quick and effective response in initiating surgery shows that they were equipped
to handle -such a situation, ensuring both the mother and baby were treated in a timely
 23
manner. The hospital recognized that a normal delivery was no longer viable based on
clinical observations, and a C-section was necessary to ensure the safety of both Monika
and the baby. This shows the hospital’s preparedness to act decisively, with the appropriate
facilities in place to conduct a major surgery immediately. The surgery was performed
without unnecessary delays, reflecting the hospital's readiness to manage unexpected
medical situations.
[2.3.5] The respondent further contends to the wisdom of the court that in the matter of
Indian Medical Association v. V.P. Shantha 13: This case established the concept of
'informed consent,' which means that a patient must be fully informed of the risks involved
in a medical procedure before giving consent. The Supreme Court held that failure to obtain
informed consent from a patient can amount to medical negligence.

[2.3.6] In the case of The State Of West Bengal vs Anwar All Sarkarhabib
Mohamed14, the Hon’ble Apex Court contended the differentia which is the basis of
classification and the object of the Act are two different things. It is necessary that there
must be a connection between the basis of classification and the object of the Act. This
landmark case underscored the importance of reasonable classification and adherence to
constitutional principles in legislation.

[2.3.7] It is humbly submitted that there is no evidence linking any deficiency in

medical equipment or facilities to Monika’s unfortunate death. While Monika’s death is
tragic, post-surgical complications such as prolonged unconsciousness or reactions to
anesthesia are recognized medical risks. There is no indication that faulty equipment or
inadequate facilities contributed to her death. In cases involving medical negligence, the
complainant must prove a direct causal link between the deficiency in medical care (or
equipment) and the harm caused. Under the Kusum Sharma ruling, hospitals are not liable
for every adverse outcome unless it can be demonstrated that there was a specific failure to
meet standard care that led directly to the harm. Dyal Hospital can argue that the death was
due to unforeseen medical complications rather than inadequate equipment or service.

[2.3.8] It is humbly submitted that they provided proper medical care and had adequate
equipment to handle Monika's case. From the time she was admitted to the hospital to the
emergency cesarean section and post-operative care, the hospital maintained a high standard
of medical practice, with qualified staff and functional equipment. While the outcome was
tragic, there is no evidence to suggest that Monika's death resulted from a deficiency in

13
1996 AIR 550
-
14
1952 SCR 284
 24
service, equipment, or medical care. The hospital acted in line with accepted medical
standards and can assert that no negligence or deficiency occurred in handling her treatment

-
 25

PRAYER

Wherefore, may it please the Hon’ble District Consumer Redressal Commission, in the
lights of facts and circumstances of the case, issues raised, arguments advanced and
authorities citied, the respondent prays that this Hon’ble Court may be pleased to
adjudge, rule upon, and determine the following:

1. Dismiss the complaint as Dyal Hospital adhered to established medical

standards and protocols during Monika's treatment, with no negligence or
deficiency in service

2. Recognize that the procedure undertaken was justified under the given
circumstances, with the prescribed standard of care being
meticulously maintained

3. And, hospital not liable to pay compensation as there is no

deficiency in services

AND

Pass any other order it may deem fit in the interest of Justice, Equity and Good
Conscience.