The main legal point established in the judgment is the application of the principles of professional negligence and the doctrine of res ipsa loquitur in determining liability in cases of medical malpractice.

ORDER

Piare Lal Garg, Member - This is an appeal filed by Roshan Lal Garg (in short the appellant ) against the order dated 19.5.2003 of the District Consumer Disputes Redressal Forum, Patiala (in short the District Forum ) by which the complaint of the appellant was dismissed by the District Forum.

2. Brief facts of the case are that the appellant met with an accident at Cheeka on 11.12.1999. He was taken to M/s. Aggarwal Orthopaedic Clinic, opposite party No. 3 (in short respondent No. 3 ) so as to obtain the services of Dr. N.D. Aggarwal, opposite party No. 1 (since deceased) (in short respondent No. 1 ) in order to get the appellant's left leg femur XXX operated upon by him on payment of consideration. The appellant was admitted in the said clinic on 11.12.1999 and was discharged on 23.12.1999. Allegedly the operation was performed not by Dr. N.D. Aggarwal but by Dr. Rajeev Aggarwal, opposite party No. 2 (in short respondent No. 2 ), who had no right nor consent of the appellant or his relations to do the operation was taken. Dr. Rajeev Aggarwal was also a State Govt. employee working as Assistant Professor in the Department of Orthopaedics, Govt. Rajindra Hospital, Patiala. For the operation, the appellant was taken to the operation theatre on 14.12.1999 at 5.30 a.m. The appellant, his relations and well wishers were kept under the impression by the staff member of respondent No. 3 that the operation shall be done by Dr. N.D. Aggarwal himself but Dr. N.D. Aggarwal remained sitting in his office while the operation was done by Dr. Rajeev Aggarwal. During the operation, one attendant who was inside the operation theatre came out the theatre and approached the relations of the appellant to bring an injection from the chemist shop. When the relation of the appellant reached in the operation theatre as to pass the injection inside the operation theatre he was shocked and stunned to see that operation was being done by Dr. Rajeev Aggarwal. The relations of the appellant approached Dr. N.D. Aggarwal who told that during those days he himself performed operations rarely due to his old age and major operative work was being done by his son Dr. Rajeev Aggarwal, though this fact was not disclosed to the appellant/his relations earlier. While performing the operation a rod was put inside the leg of the appellant. The leg was plastered for a period of 4 weeks but a severe pain continued in the operated leg and he had suffered physically as well as mentally due to the above said severe pain and he was put on medicines including pain killers and injections. He was discharged on 23.12.1999 despite the fact that the said pain continued to exist. A sum of Rs. 29,200 was paid to the respondent M/s. Aggarwal Orthopaedic Clinic by the relation of the appellant. However, a receipt for a sum of Rs. 9,200 only was issued by respondent No. 3. The appellant claimed to have spent about Rs. 60,000 on his treatment in the said Clinic. The appellant, however, continued visiting the clinic as he had been feeling severe pain. At the time of operation he was assured that the operation was successful. On 1.5.2000, the appellant went to the Department of Orthopaedics C.M.C., Ludhiana for a thorough check up and was told that the rod had been inserted with great negligence without requisite care and caution and a piece of effected bone had fallen somewhere and for this reason the fracture had not joined/cured. He was admitted in the C.M.C. on 5.5.2000 for treatment and remained there upto 13.5.2000. Thereafter too he had visited C.M.C. for regular thorough check up treatment so as to avoid further operation. He spent Rs. 30,000 on this. The appellant and his relations took up the matter with the respondents who showed their willingness to pay expenses and fresh fee for operation but claimed that as the appellant had not turned up quite for a long time so they were not in a position to advice qua further treatment. The appellant then went to Orthopaedic Depart