2026 Supreme(Online)(NCDRC) 286

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
A.P. Sahi, President, Bharatkumar Pandya, Member
Vijaya Health Centre – Appellant
Versus
K. Karibeeran – Respondent
NC/FA/424/2010|NC/FA/427/2010

In medical negligence, res ipsa loquitur applies to unexplained post-surgical perforations shifting burden to prove non-negligence; doctor's death abates personal liability against heirs; hospital vicariously liable for visiting consultant's integrated services.

Headnote:(A) Consumer Protection Act, 1986 - Medical negligence - Res ipsa loquitur - Perforation of large intestine following laparoscopic surgery - State Commission applied res ipsa loquitur to hold doctor and hospital liable for Rs.10 lakhs compensation despite absence of expert opinion - National Commission partly upheld negligence for initial 5mm oval perforation unexplained and possibly linked to surgery despite doctor's defence of spontaneous colitis perforation, noting failure to disprove complainant's prima facie case - Subsequent perforations (after 23 days) dissociated from initial surgery due to time gap and ongoing treatment records showing regular peritoneal toileting - No convincing evidence of chronic constipation for stercoral perforation nor instrument reach (6-8 inches below umbilicus) - Partial negligence inferred from continuous pus formation, infections leading to septicaemia (Paras 99-104).

(B) Actio Personalis Moritur Cum Persona - Doctor died during pendency without final decree - Liability against deceased doctor abates; legal heirs substituted but not liable beyond estate for personal professional duties under consumer claim - Binding precedent limits claims against heirs absent intervening decree (Paras 17-21).

(C) Vicarious liability of hospital - Visiting consultant doctor (paying for facilities, no master-servant relation) - Hospital vicariously liable as integrated service provider in surgeries/hospitalization despite independent status; non-delegable duty to ensure patient care - Distinguished from pure independent contractor scenarios; services cumulative (Paras 40-51).

Facts of the case:
Patient admitted for abdominal tumour removal via laparoscopy; post-discharge complications led to readmission, enterctomy for adhesions, sigmoid colon perforation treatment, multiple peritoneal toiletings; discharged against advice; died later - State Commission awarded Rs.10 lakhs against hospital and doctor.

Findings of Court:
Partial negligence on initial perforation/treatment; hospital vicariously liable; doctor's personal liability abated on death; compensation reduced to interim deposits (Rs.2.5 lakhs each).

Issues: (1) Cause of intestinal perforations (surgical injury vs. spontaneous colitis); (2) Applicability of res ipsa loquitur sans expert opinion; (3) Liability against deceased doctor's heirs; (4) Hospital's vicarious responsibility for visiting consultant.

Ratio Decidendi: Unexplained oval perforation post-laparoscopy with delayed symptoms shifts burden to doctor/hospital under res ipsa loquitur; abatement applies to personal medical negligence claims pre-decree; hospitals bear vicarious/non-delegable liability for treatment ecosystem even with visiting specialists.

Result: Appeals partly allowed - Compensation modified to Rs.2.5 lakhs each (as interim deposits) with interest; doctor's appeal abated re personal liability.

Table of Content
1. appeals from state commission medical negligence order. (Para 1 , 2)
2. parties argue over surgical perforation cause. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16)
3. actio personalis moritur cum persona abates doctor liability. (Para 17 , 18 , 19 , 20 , 21)
4. hospital vicarious liability for visiting consultant. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32)
5. hospitals vicariously liable for integrated medical services. (Para 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51)
6. patient treatment timeline and procedures detailed. (Para 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70)
7. res ipsa loquitur applies to unexplained perforation. (Para 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85)
8. subsequent perforations likely idiopathic, not negligent. (Para 86 , 87 , 88 , 89 , 90 , 91 , 92 , 93 , 94 , 95 , 96 , 97 , 98)
9. partial negligence in initial perforation treatment. (Para 99 , 100 , 101 , 102 , 103 , 104 , 105)
10. compensation reduced to interim deposit amounts. (Para 106 , 107 , 108 , 109 , 110 , 111 , 112 , 113 , 114 , 115 , 116 , 117 , 118 , 119 , 120)

ORDER

JUSTICE A. P. SAHI, PRESIDENT

1. These two appeals arise out of a complaint of medical negligence and have been filed questioning the order of the State Commission dated 05.10.2010 in CC No. 76 of 1998. The complaint has been allowed by the SCDRC, Chennai allowing the complaint in part and awarding a sum of Rs. 10 lakhs against both the appellants towards medical expenses and compensation for negligence along with a cost of Rs. 10,000/-.

2. F.A. No. 427/2010 has been filed by Dr. Hariharan, who passed away on 14.04.2024 during the pendency of these appeals and applications were moved by the legal heirs of Dr. Hariharan for substitution. The same was allowed on 03.12.2024 by the following order:

These are three appeals arising out of a common order passed by the State Commission in a case of medical negligence. Appeal No.424 of 2010 has been filed by the hospital, namely, Vijaya Health Centre whereas appeal No.427 of 2010 has been filed by Dr. Hariharan, the treating doctor.

It appears that later on the complainants also filed Appeal No.8 of 2011.

From the order sheet, it appears that the appeal filed by the complainants was admitted on 14.07.2011 and was directed to be connected alongwith other two appeals where the complainants were arrayed as respondents. From the order sheet of first appeal No.8 of 2011, it is apparent that no one has been appearing on behalf of the complainants/appellants for the past several occasions nor anyone has appeared to press this appeal. Accordingly, first appeal No.8 of 2011 is dismissed for want of prosecution and shall be delinked henceforth. In the other two appeals, notices had been issued. Yet, in spite of service of notice, no one appeared for the respondents/complainants even after service. Vide order dated 16.12.2014, this Commission directed the matter to be proceeded ex-parte against the respondent No.2/complainant. The order to proceed ex-parte against the complainant is confirmed as none appears for the complainant.

It has been pointed out by the learned counsel that the treating doctor, Dr. Hariharan has expired on 14.04.2024 and IA/15567/2024 & IA/15568/2024 have been filed on behalf of the legal heirs of Dr. Hariharan praying that the delay in filing the substitution application be condoned and the legal representatives of the appellant in FA/427/2010 and as respondent in FA/424/2010 be brought on record.

We have heard the learned counsel for the appellants in both the appeals and we are satisfied that sufficient cause has been shown for condoning the delay in filing the substitution application. Accordingly, the delay condonation application as well as the substitution applications are allowed.

The legal representatives of late Dr. Hariharan are taken on record

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