SAVITA GARG versus THE DIRECTOR, NATIONAL HEART INSTITUTE

Citation: [2004] SUPP. 5 S.C.R. 359 · Decided: 12-10-2004 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

SAVITA GARG 
A 
v. 
THE DIRECTOR, NATIONAL HEART INSTITUTE 
OCTOBER 12, 2004 
[B.N. AGRA WAL AND A.K. MATHUR, Jl] 
B 
Consumer Protection Act 1986/Rules made there under 
Medical negligence in private hospital/institution-Original petition not 
impleading treating doctor a11d nurses as party-Effect of-Held; It will not C 
result in dismissal of petition for non-joinder of necessary parties-When 
petitioner has successfally discharged initial burden that hospital was negligent, 
the" heavy burden of giving details as to which doctor gave treatment and 
whether it was doctor or nursing staff who was negligent, and implead them 
as parties, cannot be placed on patient or their relatives-In view of the D 
expression used in Rule 14 (b) of Consumer Protection Rules, 'so far as they 
can be ascertained', hospital has anyhow to produce those doctors/nurses to 
substantiate their claim that there was no negligence--Code of Civil Procedure, 
Order 1 Rules 9 and Rules 10. 
Medical. negligence in hospital/institution by doctors/nurses taken E 
temporarily for 'treatment of patients-Held; Hospital as controlling authority 
was responsible for their negligence-It could not escape its liability by maki,ig 
a distinction between 'contract of service' and 'contract for service'. 
Hpsband of appellant died .while undergoing medical treatment in 
the respondent institute. Alleging that death was due to negligence of F 
respondent, she filed a complaint before. National Consumer Dispute 
Redressal Commission claiming compensation. The Commission observed 
that despite its direction to implead necessary partie~, no effort was made 
by the appellant toimple~d the treating doctors and nurses, and dismiss~d 
the complaint as non-maintainable for non-joinder of parties. Hence the G 
present appeal. . 
Allowing the appeal, the Court 
HELD: t. Summary dismissal of the original by the Commission on 
· the question of non-joinder of necessary parties was not proper. In case, H 
359 
, 
360 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A the complainant fails to subtantiate the allegation, the complaint will fail, 
but not on the ground of non-joinder of parties. [374-EJ 
2.1. When a patient is admitted to the highly commercial hospital 
like the respondent institute, a thorough check up of the patient is done 
by the authorities. It is the institute which selects after examination of the 
B patient that he suffers from what malady and who is the best doctor who 
can attend, except when the patient or the family member desire to be 
treated by a particular doctor or surgeon as the case may be. Normally, 
the private hospitals have a panel of doctors, in various specialities and it 
is they who choose who is to be called. It is very difficult for the patient 
C to give any details that which doctor treated the patient and whether the 
doctor was negligent or the nurshing 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 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. Such a heavy burden canno.t be placed on the 
D patient or the family member/relatives to implead all those doctor who 
have treated the patient or the nursing staff to be impleaded as party . It 
will be 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. 
E 
(367-G, H; 368-A-BI 
2.2. The expression used in Rule in 14 (b) of Consumer Protection 
Rules, 1987 'so far as they can be ascertained', makes it clear that the 
framers of the Rules realised that it will be very difficult specially in the 
case of medical profession to pinpoint that who is responsible for not 
F providing proper and efficient service which gives rise to the cause for 
filing a complaint and spe<;ially in the case like the one in hand. (368-CJ 
2.3. Once a claim petition is filed and the claimant has successfully 
discharged the initial burden that the hospital was negligent, as a result 
G of such negligence the patient died, then in that case the burden lies on 
the hospital and the concerned doctor who treated the patient that there 
was no negligence involved in the treatment. Since the burden is on the 
hospital, they can discharge the same by produ

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