Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
AVM J. Rajendra, AVSM VSM (Retd.), Presiding Member and Anoop Kumar Mendiratta, Member
Dr. Yogesh Bavishi (since deceased) Through LRs: Kavita Bavishi and Ors. —Appellant
Versus
Tanima Bandyapadhyay and Ors. —Respondents
First Appeal No. 2148 of 2018, First Appeal No. 75 of 2019, First Appeal No. 76 of 2019
Decided on 29.5.2026

Advocates:
Counsel for the Parties:
For the Dr. Yogesh Bavishi:Mr. Rabin Majumder, Advocate (VC)
For the Tanima Bandyapadhyay: In person (VC)
For the Tapan Sarkar and:Mr. Srijan Nayan, Advocate
For the Belle Vue Clinic:Mr. Vikas Nautiyal, Advocate

IMPORTANT POINTS
(1) The “Bolam Test” for Medical Negligence: A doctor is not negligent simply because a treatment did not result in a 100% perfect outcome or because a second surgery was required. As long as the doctor exercised the ordinary skill of a competent professional and chose a recognized medical procedure (in this case, prioritizing the patient’s safety over total gallbladder removal), they cannot be held legally liable for negligence.
(2) Importance of Expert Evidence: Consumer courts cannot determine medical negligence solely based on arguments or subsequent medical complications. If a doctor provides unrefuted expert testimony validating their surgical decisions, courts are bound to consider that evidence rather than substituting their own medical judgment.

Headnote:
The Consumer Protection Act, 1986 – Section 2(1)(g) – Deficiency – Section 2(1)(o) – Service – Complainant underwent a laparoscopic gallbladder surgery (cholecystectomy) performed by OP-1 (Dr. Yogesh Bavishi) to remove gallstones – Due to severe inflammation and risk of injuring the common bile duct, the doctor performed a “Fundus First Cholecystectomy,” deliberately leaving a part of the gallbladder intact – Doctor noted that no stones were found during the procedure and presumed they had passed – Complainant continued to experience pain and later consulted Apollo Hospital, where scans revealed a remnant gallbladder containing stones – She underwent a second surgery to remove it – Complainant sued for medical negligence – State Commission ruled in her favor, awarding compensation – The doctor appealed to the NCDRC but died during the pendency of the appeal, prompting his legal heirs to file for substitution – NCDRC allowed the substitution of the legal heirs – Relying on Supreme Court precedent, they held that because an executable decree (the State Commission’s order to pay compensation) already existed against the doctor prior to his death, the liability survives against his estate – NCDRC overturned the State Commission’s order and ruled in favor of the doctors – Relying on expert testimony, the Commission found that the doctor’s decision to perform a partial removal to prevent severe organ damage was a standard, medically recognized approach – State Commission had erred by ignoring the expert evidence and solely relying on the fact that a second surgery was needed.

ORDER

Anoop Kumar Mendiratta, Member.—Three separate appeals FA No.2148 of 2018, FA No.76 of 2019 and FA No.75 of 2019, preferred on behalf of the Opposite Party No.1 (Dr. Yogesh Bavishi, since deceased); Opposite Party No.2 (Dr. Tapan Sarkar) and Opposite Party No.3 (Belle Vue Clinic) assail Order dated 02.11.2018 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal whereby CC No.120/2013 preferred on behalf of the Complainant (Tanima Bandyapadhyay) was allowed as under:-

“OP-1 Doctor is directed to pay Rs.10 lakhs(Rupees ten lakhs), OP-2 Rs.3 lakhs (Rupees three lakhs), OP-3 Rs.2 lakhs(Rupees two lakhs) to the complainant within 45 days from the date of the order, failing which the OPs shall be liable to pay to the complainant interest @ 9% per annum for the entire period of default.”

2. Appellants and Respondents are hereinafter referred to as Opposite Parties and complainant as appearing in the complaint filed before the learned State Commission for sake of convenience.

IA No.10031/2021 (Application for substitution of Legal Heirs) & IA No.10030/2021 (Application for Directions)

3. An application for substitution of Legal Heirs along with application seeking directions has been filed on behalf of Legal Heirs of Dr. Yogesh Bavishi.

Perusal of record reveals that during the pendency of the proceedings I.A. No.10031 of 2021 was preferred on behalf of Kavita Bavishi wife of Dr. Yogesh Bavishi (OP-1) informing that during the pendency of appeal before this Commission Dr. Yogesh Bavishi expired on 24.05.2021 and as such she be substituted as the legal heir of the deceased. Relying upon the maxim actio personalis moritur cum persona, she submitted that the personal right of action dies with the person and as such right to sue stands extinguished. Reference was also made in the application to Order passed by this Commission in Balbir Singh Makol v. Chairman, Sir Ganga Ram Hospital, 2001 (1) CPR 45 (NC).

4. The maxim actio personalis moritur cum persona as a general rule is applicable to action in torts and the cause of action against a party, against whom an action in tort is brought, is extinguished on his death. However, right to sue survives in case the trial has been completed and a decree/judgment has been passed against the said deceased as held by five-Member Bench of this Commission in Balbir Singh Makol (supra).

5. The principles of law regarding substitution of LRs in action in torts has been further considered by the Hon ble Apex Court in Kumud Lall v. Suresh Chandra Roy (Dead) through LRs and Others, 2026 SCC OnLine SC 797, wherein the issue for consideration was “Whether, upon death of the doctor during pendency of proceedings at appellate stage, the legal heirs can be impleaded and held liable for the alleged act of medical negligence of the deceased doctor? If yes, to what extent?”

In the aforesaid case, the doctor was held negligent by learned District Forum, while the complaint was dismissed by SCDRC thereby allowing the appeal preferred by the doctor. During pendency of the Revision Petition before NCDRC, Dr. Lall passed away, resulting in substitution of legal heirs on the prayer of the complainant and it was further observed that the legal heirs shall be liable to satisfy the decretal amount to the extent of estate left behind, on conclusion of the proceedings.

The observations and legal position as enunciated by the Hon ble Apex Court in paras 64 to 73 may be beneficially reproduced for reference:-

“64. What falls from the above discussion are as under-

i. The common law maxim „actio personalis moritur cum persona in India has been statutorily modified by various statutory instruments such as Fatal Accidents Act of 1855, Legal representatives Suits Act of 1855, Indian Succession Act of 1925, etc.;

ii. That the legal representative of the deceased can institute a fresh suit or be sued afresh in terms Legal Representatives Suits Act, 1855 or in terms of Section 306 of Indian Succes

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Cases Referred (2)