Mr. Justice Lokeshwar Prasad, President— Smt. Jaiwati, the complainant in the present case, has filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) averring that after paying the necessary charges, she, on 26.5.1992, had undergone MTP and Sterilisation at the Shahdara Clinic of opposite party (hereinafter referred to as the opposite party No. 1). The operation in question, as per the case of the complainant, was performed by OP-2 and after the operation, a certificate of sterilisation was issued to the complainant. It is further averred that on 15.10.1992, the complainant was found to be pregnant. The complainant, thereafter, went for medical check-up in Swami Dayanand Hospital, Shahdara on 3.1.1993 and after checking the complainant, the concerned doctor, in her report, stated that the complainant had conceived on 1st July, 1992 and the probable date of delivery was stated as 8th April, 1993. For the above alleged negligence on the part of the OPs, the complainant, in the present complaint, has claimed a sum of Rs. 3,00,000/- on account of compensation and medical expenses. The complainant has also prayed that the opposite parties be directed to provide treatment to the complainant free of charge at the time of delivery and thereafter till the complainant becomes normal.

2. Opposite party-1 has contested the claim of the complainant. In the written version, filed on behalf of opposite party-1, certain preliminary objections have been taken with regard to the maintainability of the complaint. It is stated in the reply/written version of opposite party-1 that the complaint filed by the complainant is false, grossly misconceived as there has been no negligence on the part of the OPs. It is stated in the reply that the present case virtually is a case of sterilisation failure for which the OPs cannot be held responsible as the OPs had taken all due care and caution. No reply/written version has been filed on behalf of opposite party-2.

3. The complainant and also opposite party- 1 have filed their respective affidavits by way of evidence.

4. After the completion of the pleadings and filing of affidavits by the parties by way of evidence, the case was fixed for final arguments. On 19th March, 1999 when the case was fixed for final arguments, none appeared on behalf of the complainant. However, Mr. Rajiv Sharma, Advocate was present on behalf of the OPs. He commenced his arguments on that very day but the same could not be concluded on that day and the case was adjourned to 23rd March, 1999 for remaining arguments. On 23.3.1999, none was present on behalf of the parties as a result of which this Commission could not have the benefit of the valuable views of the Counsel for the parties and was left with no other alternative but to close the case for orders.

5. We have carefully gone through the documents/material on record and the submissions made by the learned Counsel for the OPs before us on 19th March, 1999. Before discussing the merits of the present case, we would like to examine the legal position with regard to the duties and obligations of a medical practitioner towards his patients.

6. The Civil liability of medical men towards their patients is perhaps compendiously stated in R v. Bateman, (1925) 94 LJ KB 791, as follows :

“If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward.….The law requires a fair and reasonable standard of care and compe