The burden of proving negligence lies on the complainant in medical negligence cases.

Mrs. Davinder Kaur Bhamrah, Member—This is an appeal under Section 15 of the Consumer Protection Act, 1986, against the order dated 20.11.1998 passed by the District Consumer Disputes Redressal Forum, Ferozepur, whereby the complaint of the appellant for damages was dismissed. Aggrieved by the order, he has filed the appeal for allowing the claim of the appellant to the extent of full amount as mentioned in the complaint with costs throughout.

2. Brief facts of the case are :

Shanker Singh aged 80 years, father of the complainant Amar Singh, was admitted in the Frances Newton Hospital for his treatment by the opposite parties on 19.7.1996. As per allegations of the complainant, the death of his father Shanker Singh caused due to the carelessness of the opposite party No. 2. FIR under Section 304, I.P.C. was registered against the O.P. No. 2 with the orders of the Hon’ble Punjab and Haryana High Court. It is stated that the Investigation Officer of Police approached the Civil Surgeon, Ferozepur Ex. R-3 for obtaining the opinion of the Board of Doctors. The Civil Surgeon, Ferozepur vide Ex. R-1 constituted a Board of Doctors to examine the medical record of the deceased Shanker Singh. As per the report of the Board of Doctors, Ex. R-2, the death of the father of the complainant was due to “Cardio-respiratory arrest” which caused to the “Coronary Artery disease and Cerebrovascular accident” and the drugs which were given for treatment were justified. After obtaining the said report of the Board of Doctors, the Investigating Officer of police sought opinion of the D.A. (Legal), Ferozepur vide Ex. R-4. The Deputy D.A. (Legal), Ferozepur made his report Ex. R-5 dated 27.11.1997 vide which he opined that the treatment and medicines given to Shanker Singh, father of complainant were justified and death of Shanker Singh was natural death being an old man of 80 years and he recommended the case for cancellation.

2. After perusing the record, the District Forum reached to the conclusion that there was not any negligence or recklessness or departure from accepted and established rules of treatment, on the part of opposite party No. 2. As such, the complainant has badly failed to prove his case by leading any cogent and convincing evidence and dismissed the complaint.

3. In the appeal before us, it has been stated that the death of the father of the complainant after two days of admission in the hospital with no serious ailment itself goes to show that the patient died due to the utter rashness and negligence on the part of opposite party No. 2 and hence it is deficiency in rendering service and the prayer is to compensate the appellant for the amount claimed by him.

4. The question which arises for consideration in this appeal is whether opposite party No. 2 can be held liable for any negligence in discharge of his duty as a physician ?

5. The Supreme Court of India in Dr. Laxman Bala Krishna Joshi v. Dr. Trimbak Bapu Godbole & Anr., AIR 1969 SC 128, has laid down that doctor when consulted by a patient owes him certain duties, namely : (a) a duty of care in deciding whether to undertake the case; (b) a duty of care in deciding what treatment to give; (c) a duty of care in administration of that treatment. A breach of any of these duties gives a cause of action for negligence to the patient.

6. It is in the light of the above principles that it is to be seen now whether there was a breach of duty of care on the part of opposite party-2 in the process of treatment of Shri Shanker Singh.

7. The patient Shanker Singh was brought to the hospital on 19.7.1996 at 5.00 p.m. with complaint of weakness of left side of body two hours prior to admission. On admission his pulse was 80/min. regular, B.P. 160/86 m.m. Hg., Respiration rate 20/min. A diagnosis of cerebrovascular accident with left side hemiparesis was made. The appropriate treatment was given and investigations were carried out. Chest X-ray showed normal lungs and heart shadows consistent w