MRS. REKHA YADAV, Aged about 33 Defendant years, W/o Mr. Ravi Kumar Yadav, D/o Mr. Sahendra Prasad, Occupation : Housewife, R/o House No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh) Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri (Daulatganj), District – Patna (Bihar). Videocon : 9074705975

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :                               MRS. REKHA YADAV

VERSUS

NON-APPLICANT/           :                       RAVI KUMAR YADAV

        I N D E X

Sno	Description of documents	Annexure	Pages
1.	Index		1
2.	Chronology of events		2 TO 4
3.	Memo of Application Under Order 39 Rule 2-A Of The Code Of Civil Procedure, 1908 (No. 5 Of 1908) Read With Section 15 In The Hindu Marriage Act, 1955 alongwith affidavit		5 TO 18
4.	List of documents		19
5.	Certified Copy of the Order dated 21.07.2015 passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR YADAV in the file of First Appeal No. 636 of 2015	A-1	20
6.	Copy of the legal notice dated 30.07.2015	A-2	21
7.	Copy of the postal receipt dated 01.08.2015	A-3	22
8.	Copy of the returned Envelope	A-4	23
9.	Copy of the postal receipt dated 04.09.2015	A-5	24
10.	Copy of the returned Envelope	A-6	25
11.	Copy of Public Notice on 15.09.2015 in a local daily newspaper “Nai Dunia” Bhopal Edition	A-7	26
12.	Copy of the reply dated 13.04.2016	A-8	27 TO 29
13.	Copy of the Card of Marriage and wedding Photographs alongwith reply	A-9	30 & 31
14.	Vakalatnama		32
15.	Court Fee		33

PLACE : JABALPUR

DATE :                                     ADVOCATE FOR APPLICANT

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :                               MRS. REKHA YADAV

VERSUS

NON-APPLICANT/           :                       RAVI KUMAR YADAV

       

CHRONOLOGY OF EVENTS

S.No	Date	Events
1.	09.03.2008	Marriage of both the parties was solemnized on 09.03.2008 in the City of Bhopal according to Hindu rites and ceremonies in the presence of friends, relatives and family members.
2.	November, 2008	It was alleged by the plaintiff that marriage was not consummated since November, 2008 and they are living separately since then.
3.	28.06.2011	Non-applicant/ plaintiff had filed a Regular Civil Suit on 28.06.2011 for Decree of dissolution of marriage solemnized on 09.03.2008 in the City of Bhopal according to Hindu rites and ceremonies in the presence of friends, relatives and family members of both the parties as enumerated under the provisions of Section 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act, 1955 (No. 25 of 1955) on the ground that the marriage was not consummated since November, 2008 and they are living separately since then.
4.	22.04.2015	Defendant filed a suit on 22.04.2015 under Section 9 of the Hindu Marriage Act, 1955 (No. 25 of 1955) for restitution of conjugal rights before the Principal Judge, Family Court, Bhopal forming subject matter of Regular Civil Suit No. 435-A of 2015 which is still pending for final adjudication.
5.	18.06.2015	Judgment and Decree dated 18.06.2015 passed by the Court of IInd Additional Principal Judge, Mr. D. K. Paliwal, Family Court, Bhopal, District – Bhopal (Madhya Pradesh) in the matter of Ravi Kumar Yadav V/s Mrs. Rekha Yadav, in the file of Regular Civil Suit No. 460-A of 2011.
6.	13.07.2015	Defendant preferred a First Appeal Under Section 19 Of The Family Courts Act, 1984 (No. 66 Of 1984) against the Judgment and Decree dated 18.06.2015 passed by the Court of IInd Additional Principal Judge, Mr. D. K. Paliwal, Family Court, Bhopal, District – Bhopal (Madhya Pradesh) in the matter of Ravi Kumar Yadav V/s Mrs. Rekha Yadav, in the file of Regular Civil Suit No. 460-A of 2011 before the Hon’ble High Court of Madhya Pradesh Principal Seat at Jabalpur.
7.	21.07.2015	Order dated 21.07.2015 passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR YADAV in the file of First Appeal No. 636 of 2015
8.	28.07.2015	Accordingly a Process Fee NO. 7759/2015 was paid on 28.07.2015.
9.	30.07.2015	Applicant sent a legal notice 30.07.2015 through her counsel Mr. Shyam Bihari Singh, Advocate Bhopal informing him the temporary mandatory injunction granted by this Hon’ble High Court.
10.	01.08.2015	Postal receipt dated 01.08.2015 showing legal notice sent.
11.		It was returned back for the reason not known to the applicant.
12.	04.09.2015	Since this notice retuned back, applicant again sent the same notice to the non-applicant.
13.		It was also retuned back with a false endorsement that nobody is residing on the address given.
14.	15.09.2015	Applicant also published a Public Notice on 15.09.2015 in a local daily newspaper “Nai Dunia” Bhopal Edition.
15.	29.02.2016	Since the notice issued by this Hon’ble Court was returned un-served. Therefore a fresh Process Fee No. 2732/2016 was paid on 29.02.2016 and the same was also returned un-served.
16.	22.03.2016	Non-applicant thereafter appeared before this Hon’ble High Court on 22.03.2016 by filing Vakalatnama No. 2955/2016.
17.	13.04.2016	While submitting the reply vide Document No. 2807/2016 to application under Order 39 Rule 1 & 2 CPC non-applicant categorically stated that he had solemnized his second marriage on 08.07.2015 at Durga Mandir, J. K. Road, Bhopal allegedly according to Hindu Rites and Rituals.
18.		Affidavit in support of this reply shows the address is same as reflected in cause title above. Non-applicant also submitted Card of Marriage and wedding Photographs alongwith reply as Annexure R-1.
19.		Applicant preferred an Application Under Order 39 Rule 2-A Of The Code Of Civil Procedure, 1908 (No. 5 Of 1908) Read With Section 15 In The Hindu Marriage Act, 1955 before Hon’ble High Court of Madhya Pradesh Principal Seat at Jabalpur Arising Out of an Order dated 21.07.2015 passed by this Hon’ble High Court in the matter of Mrs. Rekha Yadav V/s Ravi Kumar Yadav, in the file of First Appeal No. 636 of 2015.

PLACE : JABALPUR

DATE :                                     ADVOCATE FOR APPLICANT

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :      MRS. REKHA YADAV, Aged about 33

Defendant                         years, W/o Mr. Ravi Kumar Yadav, D/o Mr. Sahendra Prasad, Occupation : Housewife, R/o House No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh) Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri (Daulatganj), District – Patna (Bihar). Videocon : 9074705975

VERSUS

NON-APPLICANT/   :       RAVI KUMAR YADAV, Aged about 35

Plaintiff                              years, S/o Late Mr. Ram Charitra Singh Yadav, R/o F- 179, C-Sector, Minal Residency, J. K. Road, Bhopal (Madhya Pradesh).

APPLICATION UNDER ORDER 39 RULE 2-A OF THE CODE OF CIVIL PROCEDURE, 1908 (NO. 5 OF 1908) READ WITH SECTION 15 IN THE HINDU MARRIAGE ACT, 1955

Arising Out of an Order dated 21.07.2015 passed by this Hon’ble High Court in the matter of Mrs. Rekha Yadav V/s Ravi Kumar Yadav, in the file of First Appeal No. 636 of 2015, the applicant/ defendant named above most humbly and respectfully begs to prefer the instant application on following facts amongst the others :

Material facts of the case

1.   Applicant/ Defendant had preferred a First Appeal on 13.07.2015 Under Section 19 Of The Family Courts Act, 1984 (No. 66 Of 1984) against the Judgment and Decree dated 18.06.2015 passed by the Court of IInd Additional Principal Judge, Mr. D. K. Paliwal, Family Court, Bhopal, District – Bhopal (Madhya Pradesh), in the matter of Ravi Kumar Yadav V/s Mrs. Rekha Yadav, in the file of Regular Civil Suit No. 460-A of 2011 whereby and whereunder a Decree for dissolution of marriage solemnized on 09.03.2008 was granted.

2.   This Hon’ble High Court was pleased to kind enough in admitting the First Appeal and passed the following Order :

“FA-636-2015

(MRS. REKHA YADAV Vs RAVI KUMAR YADAV)

21-07-2015

Shri V.R. Singh, learned counsel for the appellant.

Admit.

Issue notice to the respondent on payment of process fee within one week.

Notice be also issued on I.A. No.8648/2015.

Call for the records.

List for hearing alongwith records.

Till the next date, respondent shall not contract second marriage.

C.C. as per rules.

(RAJENDRA MENON)                           (SUSHIL KUMAR GUPTA)

JUDGE                                                       JUDGE”

Certified Copy of the Order dated 21.07.2015 passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR YADAV in the file of First Appeal No. 636 of 2015 is filed herewith and marked as Annexure A-1.

3.   This Order has been passed on these circumstances : Non-applicant/ plaintiff had filed a Regular Civil Suit on 28.06.2011 for Decree of dissolution of marriage solemnized on 09.03.2008 in the City of Bhopal according to Hindu rites and ceremonies in the presence of friends, relatives and family members of both the parties as enumerated under the provisions of Section 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act, 1955 (No. 25 of 1955) on the ground that the marriage was not consummated since November, 2008 and they are living separately since then.

4.   By filing the written statement Applicant/ defendant denied all the adverse allegations and contentions raised against her by submitting that the she was being harassed by the plaintiff for bringing less dowry inspite of the fact that her father, according to his capacity gave sufficient dowry at the time of solemnization of marriage. A demand of car was also made by the plaintiff inspite of the fact that Rs.2 Lacs was given cash with household articles worth Rs.1 Lac was given at the time of solemnization of marriage. It was also submitted that once she was conceived but her feoteous was aborted at Vijay Laxmi Hospital, Gautam Nagar, Bhopal at the instance of the plaintiff on the ground that he does not need the child. It was also submitted that the marriage is still subsisting as she is residing joint family in her matrimonial home along with Maternal Father, Maternal Mother,  Jeth, Jethani & their children and the plaintiff frequently visits this place to consummate the marriage.

5.   Defendant filed a suit on 22.04.2015 under Section 9 of the Hindu Marriage Act, 1955 (No. 25 of 1955) for restitution of conjugal rights before the Principal Judge, Family Court, Bhopal forming subject matter of Regular Civil Suit No. 435-A of 2015 which is still pending for final adjudication. The Court below failed to consider the various submissions made by the defendant and have mechanically without applying of the mind granted the Decree of dissolution of marriage solemnized on 09.03.2008.

6.   Accordingly a Process Fee NO. 7759/2015 was paid on 28.07.2015. Applicant sent a legal notice 30.07.2015 through her counsel Mr. Shyam Bihari Singh, Advocate Bhopal informing him the temporary mandatory injunction granted by this Hon’ble High Court. Copy of the legal notice dated 30.07.2015 is filed herewith and marked as Annexure A-2. Copy of its postal receipt dated 01.08.2015 is filed herewith and marked as Annexure A-3. It was returned back for the reason not known to the applicant. Copy of the Envelope is filed herewith and marked as Annexure A-4. Since this notice retuned back, applicant again sent the same notice to the non-applicant. Copy of the postal receipt dated 04.09.2015 is filed herewith and marked as Annexure A-5. It was also retuned back with a false endorsement that nobody is residing on the address given. Copy of the returned Envelope is filed herewith and marked as Annexure A-6. Applicant also published a Public Notice on 15.09.2015 in a local daily newspaper “Nai Dunia” Bhopal Edition. Copy of Public Notice on 15.09.2015 in a local daily newspaper “Nai Dunia” Bhopal Edition is filed herewith and marked as Annexure A-7.

7.   Since the notice issued by this Hon’ble Court was returned un-served. Therefore a fresh Process Fee No. 2732/2016 was paid on 29.02.2016 and the same was also returned un-served. Non-applicant thereafter appeared before this Hon’ble High Court on 22.03.2016 by filing Vakalatnama No. 2955/2016. While submitting the reply vide Document No. 2807/2016 to application under Order 39 Rule 1 & 2 CPC non-applicant categorically stated that he had solemnized his second marriage on 08.07.2015 at Durga Mandir, J. K. Road, Bhopal allegedly according to Hindu Rites and Rituals. Copy of the reply dated 13.04.2016 is filed herewith and marked as Annexure A-8. Affidavit in support of this reply shows the address is same as reflected in cause title above. Non-applicant also submitted Card of Marriage and wedding Photographs alongwith reply as Annexure R-1. Copy of the Card of Marriage and wedding Photographs alongwith reply as Annexure A-9.

8.   It is humbly submitted that as per Section 15 of the 1955 Act, no person can re-marry even if a marriage has been dissolved by a decree of divorce, till the period of filing an appeal has expired without an appeal having been presented or the appeal having been dismissed. Section 15 in The Hindu Marriage Act, 1955 is quoted below :

“15. Divorced persons when may marry again. —When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again”. 

9.   Hence this application seeking punishment for disobedience and/ or willful breach of temporary mandatory injunction on the following grounds amongst the others :

GROUNDS URGED :

A.   For that the expression 'other process of the Court' must be taken to mean that any obstruction either by a party to litigation or anyone else would constitute civil contempt within the meaning of Section 2(b) of the Act. Any act on the part of a litigant or any other person which result in interference or flouting the course of justice by his or her overt or covert acts must be regarded as a civil contempt. In support of his submission, learned Counsel has placed reliance on para 13 of the judgment of Hon'ble the Supreme Court in the case of Savitri Pandey v. Prem Chandra Pandey . It is further submitted that the intention of the parry contacting second marriage in violation of Section 15 of the 1955 Act could be easily to ascertained by his conduct because a duty is cast on such a party to make inquiries about the filing of appeal, by the losing party, especially when it is first appeal. It is humbly submitted that to err is human and right of one appeal is recognized in all civilized judicial systems world over. In support of his submission she places reliance on para 4 of the Division Bench judgment of Calcutta High Court in the case of Smt. Kajal Chowdhury v. Dilip Chowdhury .

B.   For that, in such like cases it would be consistent with the policy of law to lay down that it is undue interference in the process of a court and would constitute a civil contempt. if a winning party is allowed to contract second marriage without allowing the process of law to come to its logical end then no re-conciliation and patch up between the parties at stage of first appeal before the High Court would be possible. If such a course is permitted then it world thwart the interest of justice. Law must effectively check the designed tendency of a married person by bringing such person within 'civil contempt' to contract second marriage after the presentation of appeal by the losing party because it would advance larger public interest.

C.   For that a bare perusal of Section 2(c)(iii) of the Act would show that once the act of a party are found to prejudice or interfere with due course of any judicial proceedings or obstruct or tends to obstruct the administration of justice in any other manner then it would constitute a criminal contempt. The act of re-marriage may be considered such an act as would obstruct and interfere with due course of judicial proceedings.

D.  For that, It would be appropriate first to notice the provisions of Section 2(a) and (b) of the Act and Sections 15 and 23(2)(3)(4) of the 1955 Act, which are reproduced as under:

Section 2(a) & (b) of Contempt of Courts Act, 1971:

2(a) "contempt of court" means civil contempt or criminal contempt;

(b) "civil contempt" means wilful disobedience to any judgment, decree, direction, order, that writ or other process of a court or wilful breach of an undertaking given to a court;

(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;

Sections 15 and 23(2)(3) & (4) of the Hindu Marriage Act, 1955:

15. Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without any appeal having been presented, or an appeal has been presented but has been dismissed it shall be lawful for either party to the marriage to marry again.

 x              x             x             x

 23. Decree in proceedings.- (1) xxx      xxx      xxx      xxx

 (2) Before proceeding to grant any relief under this Act, it shall be the duty of the court in the first instance, in every case where it is possible to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties:

 Provided that nothing contained in this Sub-section shall apply to any proceeding wherein relief is sought on any of the grounds specified in Clause (ii), Clause (iii), Clause (iv), Clause (v), Clause (vi) or Clause (vii) of Sub-section (1) of Section 13.

 (3) For the purpose of aiding the court in bringing about such reconciliation, the court may, if the parties so desire or if the court thinks it just and proper so to do, adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person named by the parties in this behalf or to any person nominated by the court if the parties fail to name any person, with directions to report to the court as to whether reconciliation can be and has been, effected and the court shall in disposing of the proceeding have due regard to the report.

(4) In every case where a marriage is dissolved by a decree of divorce, the court passing the decree shall give a copy thereof free of cost to each of the parties.

E.   For that, A perusal of Sub-section (b) and (c) of affection 2 of the Act makes it evident that in order to constitute civil contempt there has to be a wilful disobedience to any judgment or 'other process of a court'. The expression 'process of a court' would necessarily include the right to file an appeal within the period of limitation. The conduct of getting the marriage solemnized further shows the conduct and demeanor of the husband-respondent.

F.   For that, A perusal of Section 23(2) and (3) of the 1955 Act would show that a statutory duty has been imposed on the Trial Courts to make an Endeavour to bring about the re conciliation between the parties. By virtue of Sub-section (3) of Section 23 of the 1955 Act, the Court has been expressly empowered even to adjourn be proceedings for a period not exceeding 15 days and refer the matter to any person suggested by the parties in that behalf or any person nominated by the Court with the direction to report as to whether re-conciliation has taken place or could be effected. A further obligation has been imposed on the Court to have due regard to the report while disposing of the proceedings. Although no such express provision has been made imposing similar obligation on the-first Appellate Court by Section 28 of the 1955 Act, yet, the Appellate Court is enjoined upon performing such functions which are required to be performed by the Court that has passed the decree. In that regard statutory guidance is available in Section 96 of the Code of Civil Procedure, 1908. Section 96 has been interpreted repeatedly by their Lordships' of Hon'ble the Supreme Court in the cases of H.K.N. Swami v. Irshad Basith (2005)10 S.C.C. 243; Tarak Nath Sha v. Bhutoria Bros. Pvt. Ltd. ; and Narbada Devi Gupta v. Drendra Kumar Jaiswal . It has been repeatedly held in the aforementioned judgments that the Court hearing the first appeal is competent to interfere in questions of facts and law. It is a duty enjoined upon on the first Appellate Court to undertake all the endeavours by examining the evidence in detail. It follows that in matrimonial cases the first Appellate Court would also be duty bound to undertake reconciliation process.

G.  For that, It is in the aforementioned context that the expression 'other process of the Court', as used in Section 2(b) of the Act, has to be construed. Once there is a duty cast on the Court to make all endeavour to forge re-conciliation between the parties and if the party obtaining decree enters into second marriage in a hurried way displaying such a conduct which would defeat the purpose 'of filing first appeal or nullifying the right of the losing spouse then it would be covered by the expression 'wilful disobedience to other process of the Court.

H.  For that, The principles governing contempt jurisdiction do not require that disobedience of the 'other process of the Court' is required to be proved beyond reasonable doubt. The right of appeal is a substantive right granted to the losing spouse by Section 28 of the 1955 Act, which is presumed to be known to the holder of a decree of divorce. If any element of that right is defeated by the acts of holder of a decree of divorce then it would constitute wilful disobedience of 'other process of the Court'. The fact of entering into second marriage by the holder of a decree of divorce beyond the period of limitation would not constitute a basis for him or her to argue that provisions of Section 15 of the 1955 Act alone may be attracted because Section 15 of the 1955 Act does not take into account wilful disobedience of the other process of the Court, which include the right of filing an appeal. Once the right of filing appeal is conceded as a substantive right then reconciliation proceedings have to be construed as part of the right of appeal. the excuse of entering into second marriage after the period of limitation cannot be put forward as a valid excuse for testing the conduct of a spouse in the light of the disobedience of other process of the Court. Suppose, an appeal has been filed within the period of limitation and it is heard by the Court a week after the expiry of the period of limitation, the Court after hearing the appeal also issues an interim order restraining the holder of a decree of divorce to remarry, the process of the Court is likely to take some time. Is it possible for the holder of decree of divorce to argue that since he/she has married after the expiry of the period of limitation as provided under Section 28 of the 1955 Act, he/she should not be held guilty of violating the other process of the Court.

I.    For, that such an approach would be consistent with the policy of law as reflected in Section 23(2) and (3) of the 1955 Act. If the law be otherwise then a game of hide and seek would follow, which may result in defeating basic principles of law aimed at re-conciliation. It is well known that a 'family' comprised of husband, wife and their children, is a unit of the society and if a 'family' is disintegrated on account of minor differences between the spouses, which could be avoided by a reconciliation, then the spouses themselves would suffer. They may not be able to ever overcome the physical and mental agony which could bring them back the same world of their first marriage. The reconciliation proceedings, therefore, is one such stage where the Court could play a vital role. The significance attached to reconciliation cannot be over-emphasised. It is, however, suffice to observe that many marriages have been saved by the interference of the Courts. The role allocated to the Courts is something more than what Section 15 of the 1955 Act declares. According to Section 15 of the Act, a party to the dissolved marriage could marry again if period of filing an appeal has expired or the appeal has been dismissed. It necessarily implies that the decree holder has to make inquiries that no appeal has been filed within the period of limitation or that the appeal has been dismissed. Such a spouse cannot sit at home and wait the summons to come because service of summons may not necessarily be effected on the winning spouse within the period of limitation.

J.    For that, Once the act of entering into another marriage by successful party is unlawful within the meaning of Section 15 of the 1955 Act, it would have consequences as per the provisions of Section 11 and 17 of the 1955 Act but those proceedings has nothing to do with the proceedings to be initiated under Section 2(b) of the Act because Sections 5, 11 and 17 of the 1955 Act operate in entirely different area and do not contemplate wilful disobedience of 'process of a Court' as provided by Section 2(b) of the Act. It is true that any violation of a substantive law would result into penal and other consequences and action is to be taken as per provisions of such a substantive law. But every breach of substantive law would not necessarily result into wilful disobedience of 'other process of the Court'. The peculiarity in the proceedings under the 1955 Act involving role of the Court is distinct in support of this view applicant place reliance of para 16 of the judgment of Hon'ble the Supreme Court in the case of Savitri Pandey (supra), which reads thus:

“16. To appreciate such a submission some facts have, to be noticed and the interest of public and society to be borne in mind. It appears that the marriage between the parties was dissolved by a decree of divorce vide the judgment and decree of the Family Court dated 18.7.1996. The respondent-husband filed appeal against the judgment and decree on 19.1.1997. As no stay was granted, the appellant solemnised the second 29.5.1997, admittedly, during the pendency of the appeal before the High Court. There is no denial of the fact that right of at least one appeal is a recognised right under all systems of civilised legal jurisprudence. If despite the pendency of the appeal, the appellant chose to solemnise the second marriage, the adventure is deemed to have been undertaken at her own risk and the ultimate consequences arising of the judgment in the appeal pending in the High Court. No person can be permitted to flout the cause of justice by his or her overt and covert acts. The facts of the cases relied upon by the learned Counsel for the appellant are distinct having no proximity with the facts of the present case. In all the cases relied upon by the appellant and referred to hereinabove, the marriage between the parties was dissolved by a decree of divorce by mutual consent in terms of application under Section 13B of the Act. This Court while allowing the applications filed under Section 13B took into consideration the circumstances of each case and granted the relief on the basis of compromise. Almost in all cases the other side was duly compensated by the grant of lumpsum amount and permanent provision regarding maintenance”.

K.   For that, It is well settled that when the contempt alleged is with respect to wilful disobedience of 'other process of a Court which has been provided for the benefit of both the parties and larger public interest then it would plainly be civil contempt and there is no criminality in the disobedience of such a process. The below mentioned questions are required to be examined in the light of the facts which are evident from this application :

1. Whether performance of a marriage after filing of appeal, an unlawful act in terms of Section 15 of the Hindu Marriage Act, 1955, amounts to willful disobedience to the "other process of the Court" disclosing a civil contempt within the meaning of Section 2(b) of the Act?

2. Whether the act of marriage by the respondent after the filing of the appeal interferes or obstructs the administration of justice and thereby amounts to a criminal contempt within the meaning of Section 2(c) of the Act?

L.   For that, In order to answer the second question we may first notice Section 2(c) of the Act, which reads thus:

2(c) "criminal contempt" means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalizes or tends to scandalize, or lowers (i) or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial the majesty of law and undermine the dignity of the Court.

M. For that, In cases where a contemner adds defiance of the Court to disobedience of the order or process and/or he continues himself in a manner which amounts to obstruction or interference with the course of justice then the contempt committed by him/her is of a mixed character. Between him and his opponent it may be a civil contempt and between the contemner and the Court it may be in the nature of a criminal contempt.

N. For that, The provision under Order 39, Rule 2-A(1) relates to the consequence of disobedience for breach of injunction. The remedy available in case of disobedience or breach of injunction is provided therein itself, which in this view, has been made to provide a speedy inexpensive and effective forum and to avoid multiplicity of litigation before different forums. The legislative policies and intendment should necessarily weigh with us in giving meaningful interpretation to the provision.

2A.Consequence of disobedience or breach of injunction.- (1) In the case of disobedience of any injunction granted or other Order made under rule 1 or 2 or breach of any of the terms on which the injunction was granted or the Order made, the court granting the injunction or making the order, or any court to which the Suit or proceeding is transferred, may Order the property of the person guilty of such disobedience or breach to be attached, and may also Order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

10.                Non-applicant has no respect and regard to the authority of this Hon’ble High Court. he has willfully flouted the orders and directions passed by this Hon’ble Court.  Inspite of appeal was filed, the non-applicant entered into second marriage.

11.                It is expedient in the larger interest of justice that Non-applicant be punished in the accordance with law for default of breach of injunction order of this Hon’ble Court.

12.                No Special Leave Petition has been filed, challenging the order, in respect of which breach of injunction order has been averred.

Caveat :

13.                That, no notice of lodging a caveat by the opposite party is received.

An affidavit in support of this application is being filed herewith.

                        P R A Y E R

It is therefore, most humbly and respectfully, prayed that Non-applicant may kindly be punished in the accordance with law for disobedience and/ or breach of injunction order of this Hon’ble High Court, in the larger interest of Justice with costs throughout.

PLACE : JABALPUR

DATED:                                    ADVOCATE FOR APPLICANT

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :                               MRS. REKHA YADAV

VERSUS

NON-APPLICANT/           :                       RAVI KUMAR YADAV

AFFIDAVIT

I, MRS. REKHA YADAV, Aged about 33 years, W/o Mr. Ravi Kumar Yadav, D/o Mr. Sahendra Prasad, R/o House No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh) Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri (Daulatganj), District – Patna (Bihar), the above named deponent, solemnly affirm and state on oath as under:

1.    That I am the Applicant in the above mentioned application and am fully conversant with the facts deposed to in the application.

2.    That the contents of paragraphs 1 to 13 of the accompanying application are true to my personal knowledge and the contents of paragraphs are based on legal advice, which I believe to be true. No material has been concealed and no part is false.

3.    That the Annexure No(s). to the accompanying application are true copies of the originals and I have compared the said Annexures with their respective originals and certify them to be true copies thereof.

PLACE : JABALPUR

DATED :                                                           DEPONENT

                                        VERIFICATION

I, MRS. REKHA YADAV, the above named deponent do hereby verify on oath that the contents of the affidavit above are true to my personal knowledge and nothing material has been concealed or falsely stated. Verified at ______this______day of _______

 

 

DEPONENT

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :                               MRS. REKHA YADAV

VERSUS

NON-APPLICANT/           :                       RAVI KUMAR YADAV

 

LIST OF DOCUMENTS

S.No	Description of document	Date of document	Original / copy	Number of page
1.	Order passed by this Hon’ble High Court in the matter of MRS. REKHA YADAV Vs RAVI KUMAR YADAV in the file of First Appeal No. 636 of 2015	21.07.2015	Certified Copy	1 (One)
2.	Legal notice sent by applicant through her counsel	30.07.2015	Xerox	1 (One)
3.	Postal receipt	01.08.2015	Xerox	1 (One)
4.	Returned Envelope		Xerox	1 (One)
5.	Postal receipt	04.09.2015	Xerox	1 (One)
6.	Returned Envelope		Xerox	1 (One)
7.	Public Notice in a local daily newspaper “Nai Dunia” Bhopal Edition	15.09.2015	Xerox	1 (One)
8.	Reply submitted by non-applicant	13.04.2016	Xerox	3 (Three)
9.	Card of Marriage and wedding Photographs alongwith reply		Xerox	2 (Twos)

PLACE : JABALPUR

DATE :                                     ADVOCATE FOR APPLICANT

APPENDIX 1-A

FORMAT OF V A K A L A T N A M A

[Rules 4 (1) of the Rules framed under the Advocates Act, 1961]

IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CIVIL CASE NO.                  OF 2017

APPLICANT/            :                               MRS. REKHA YADAV

VERSUS

NON-APPLICANT/           :                       RAVI KUMAR YADAV

I, the Applicant/defendant named below do hereby appoint, engage and authorize advocate (s) named below   to appear, act and plead in aforesaid case / proceeding, which shall include applications for restoration, setting aside for ex - parte orders, corrections, modifications, review and recall of orders assed in these proceedings, in this Court or in any other Court in which the same may be tried / heard / proceeded with and also in the appellate, revisional or executing Court in respect of the proceedings arising from this case / proceedings as per agreed terms and conditions and authorize them to sign and file   pleadings , appeals, cross objections, petitions, applications, affidavits, or the other documents as may be deemed necessary and proper for the prosecution  / defence of the said case in all its stages and also agrees to ratify and confirm acts done by them as if done by us.

In witness whereof we do hereby set our hands to these presents, the contents of which have been duly understood by us, this – day of ----------------- 201

Particulars (in block letters) of each Party Executing Vakalatnama

Name and father s / Husband s Name	Registered Address	E-Mail Address (if any)	Telephone Number (if any)	Status in the case	Full Signature/  **Thumb Impression
(1)	(2)	(3)	(4)	(5)	(6)
MRS. REKHA YADAV, Aged about 31 years, W/o Mr. Ravi Kumar Yadav, D/o Mr.  Sahendra Prasad,	R/o House No. 91, Vikas Nagar, N-1, D-Sector, Govindpura, Bhopal (Madhya Pradesh) Permanent R/o Village Dhalkochak, Post – Dualatpur, Police Station – Masauri (Daulatganj), District – Patna (Bihar)			APPLICANT

Accepted 

Particulars (in block letters) of each Advocate Accepting Vakalatnama

	Full Name & Enrollment No. in State Bar Council	Address for Service	E-mail Address  (if any)	Telephone Number (if any)	Full Signature
	(1)	(2)	(3)	(4)	(5)
1.	VIJAY RAGHAV SINGH EN. No. M. P. / ADV  / 1554 / 2003	SEAT NO. 93, GOLDEN JUBILEE BUILDING, CHAMBER NO. 317, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482 001	vijayraghav_singh@rediffmail.com	IDEA 98261-43925
2.	AMIT KUMAR KHARE, EN. No. M. P. / ADV  / 1291/ 2006	HOUSE NO. 1483 / 17, SARASWATI COLONY, BEHIND PARIJAT BUILDING, CHERITAL, JABALPUR 482 001	NIL	BSNL 94258 66726  LAND LINE 0761  - 2345 005
3.	VIJAY KUMAR SHRIVASTAVA, EN. No. M. P. / ADV  / 949/ 2006	SEAT NO. 81, HALL NO. 1, FIRST FLOOR, VIDHI BHAWAN, HIGH COURT PREMISES, JABALPUR 482 001	NIL	RIM 93015 04927 AIRTEL 97554 82448

*Score out which is not applicable

** The thumb impression shall be attested by a literate person giving above particulars.

II (2006) CPJ 242 (SS) Rajkumar Khilwani Vs.DR. Pankaj Gupta and Ors.

MANU/SS/0012/2005

Equivalent Citation: II(2006)CPJ242(SS)

BEFORE THE MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION
BHOPAL

Appeal No. 380 of 2005

Decided On: 24.11.2005

Appellants: Rajkumar Khilwani
Vs.
Respondent: Pankaj Gupta and Ors.

Judges/Coram:
N.K. Jain, J. (President) and Pramila S. Kumar, Member
Counsels:
For Appellant/Petitioner/Plaintiff: P.R. Bhave, Senior Advocate and Jitendra Rai, Advocate
For Respondents/Defendant: Subhash Gupta, Advocate
Subject: Consumer

ORDER

N.K. Jain, J. (President)

1. This appeal under Section 15 of the Consumer Protection Act, 1986 arises from the order dated 28.1.2005 of the District Consumer Disputes Redressal Forum Jabalpur in Case No. 797/2003 dismissing complaint of appellant against respondent-Dr. Pankaj Gupta and his hospital Uday Nursing Home, Jabalpur claiming damages for the alleged medical negligence on the part of respondents in the matter of performance of operation of his right car. The facts as unfolded by the evidentiary material on record and which could not be disputed before us at the time of hearing of the appeal are these:

Complainant suffered with loss of hearing power. While there was absolutely no hearing power in his left ear, his right ear was also greatly affected with foul smelling and pus discharge in that ear. On 9.9.2002 he consulted Dr. R.K. Pathak, who diagnosed it to be a case of Acute Suppurative Otitis Media (for short "ASOM"). He also got himself examined on 14.9.2002 at Frontier ENT Hospital where he was examined by Dr. K.K. Mishra who diagnosed it to be a case of Chronic Suppurative Otitis Media (for short "CSOM"). On 12.11.2002 he consulted respondent No. 1-Dr. Pankaj Gupta who runs a ENT Hospital in the name Uday Nursing Home. He also confirmed the said diagnosis. It appears that the complainant did not then opt for surgery and it was only on 4.2.2003 when he again approached Dr. Gupta and on his advice got himself admitted at respondent No. 2-Hospital on 6.2.2003. On 7.2.2003 tympanomastoid surgery was performed on his right ear by Dr. Gupta. He was discharged on 11.2.2003. Complainant on February 20, 2003 consulted Dr. Anand K. Shah, ENT Specialist and then Dr. A. Pusalkar on some latter date (not mentioned) at Mumbai. They both diagnosed it to be a case of labyrinthine damage and advised for cochlear implantation which according to them was the last and the only option for him to improve his hearing. He finally got the requisite surgery done and cochlear implanted in the right ear, at KKR ENT Hospital & Research Institute, Chennai on 2.3.2004. There he remained admitted from 28.2.2004 to 18.3.2004 and was required to spend Rs. 6,30,000.

2. The grievance of the complainant before the District Forum was that respondent No. 1-doctor was negligent in performing operation of his right ear which resulted into total loss of hearing of that ear. It was alleged that damage to the labyrinthine was caused during operation as also for want of post-operative care at respondent No. 2-hospital. The complainant thus claimed compensation of Rs. 10,50,000 from respondents. Respondents in their reply denied any negligence in performance of the operation or in the matter of post-operative care of the complainant. It was contended that while the left ear of the complainant was totally dead, the Audiogram of the right ear revealed severe to profound loss of hearing of that ear. There was pus formation and discharge from the ear and the tympanomastoid surgery of that ear was performed with limited purpose to clear that ailment and repaired the fistula at foot plate. A space was also created by placing a TORP for future prospects and tympanic membrane was repaired by putting a graft. All this, it was asserted, was done as per standard medical practice. Damage to labyrinthine was pre-existing and no immediate action for cochlear implanation could be undertaken by the respondents at that point of time inasmuch as surgery for cochlear implanted done in a dry ear. It was further explained that respondent No. 1 does not undertake surgery for cochlear implantation.
3. Both parties led evidence in the form of affidavits and documents. During hearing of the complaint the case was referred for opinion to Dr. R.K. Shukla, Professor & Head of the Department, ENT, N.S.C.B. Medical College, Jabalpur who vide his letter dated NIL opined that damage to labyrinthine of right ear was not the result of operation of respondent No. 1 - Dr. Pankaj Gupta. He was also examined on oath by the District Forum. The Forum below on evaluation of the entire evidence including the opinion and statement of Dr. Shukla came to the conclusion that there was no negligence on the part of respondent No. 1-doctor in performance of the operation in question. With this finding the complaint was dismissed with no order as to costs.
4. At the outset it is noted that complainant has led no evidence to show that there was any negligence on the part of respondent No. 1 - Dr. Pankaj Gupta in performance of the operation of his right ear. However reliance is placed on the opinion expressed by Dr. Anand K. Shah, Dr. Pusalkar as also in the discharge certificate of K.K.R. ENT Hospital. Dr. Anand Shah in his letter dated February 20, 2003 addressed to some referring doctor, mentioned "he (complainant) has had labyrinthine damage following surgery which has resulted in dead ear with vertigo." Dr. Pusalkar in his letter dated NIL noted "he has Bil. Profound S.N. Hearing loss". In the discharge summary of K.K.R. ENT Hospital it is stated:

"Bilateral hard of hearing. History of left ear surgery in childhood elsewhere. Patient allegedly gives history of undergoing right sided tympanomastoid surgery elsewhere after which the hearing is said to have deteriorated. Pre-operative audiogram not available."

However, it appears that treatment papers of respondent No. 2 hospital were not made available to the aforesaid three doctors at the time of their examination. In the discharge summary of K.K.R. ENT Hospital there is clear mention of this fact that pre-operative audiogram not available. It will be useful here to refer to the pre-operative audiogram report of the complainant filed as Annexure P-5 by respondents. It clearly recorded that while there was no hearing in the left ear, the right ear also suffered with severe to profound loss of hearing. It was, therefore, wrong to say that the complainant was having sufficient hearing power in his right ear before operation by respondent-Dr. Pankaj Gupta. Prior to his examination by Dr. Pankaj Gupta he was examined by two other doctors namely Dr. R.K. Pathak and Dr. K.K. Mishra who both diagnosed it to be a case of acute/chronic Suppurative Otitis Media. What was advised was tympanomastoid surgery and the same was performed by Dr. Pankaj Gupta. Obviously the surgery was undertaken to cure the said ailment CSOM. As already pointed out there is absolutely no evidence on record to show that Dr. Pankaj Gupta acted negligently in performance of the aforesaid surgery or that it had led to damage to labyrinthine. The observation of Dr. Shah, Dr. Pusalkar or in the discharge summary of K.K.R. Hospital were based on the statement made by the complainant.
5. All the treatment papers of the complainant filed in evidence were referred by the District Forum for expert opinion of Dr. R.K. Shukla, Professor and Head of Department of ENT, Medical College, Jabalpur. He on examination of all these papers opined:

"I hereby state that Pre-operative Audiogram of the patient shows profound Sensorineural loss in Rear, therefore, the question of Labyrinthine damage to that ear does not arise because of the Operation."

Dr. Shukla was also examined on oath by the District Forum and he clearly negatived the allegation that damage to labyrinthine was caused during operation by Dr. Pankaj Gupta. As opined by him in his report Annexure C-2, it was a clear case of pre-operative profound sensorineural loss of right ear and there was thus no question of labyrinthine damage being caused due to operation. In other words, the labyrinthine damage was pre-existing on or before the date of operation. The District Forum has analysed the entire evidence in detail and we tend to agree with the finding that no negligence on the part of respondent was etablished.
6. Laying down the criteria for judging negligence in the context of medical profession the Supreme Court in the case of Jacob Mathew, AIR 2005 SC 3685 observed:
"Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of incident) at which it is suggested it should have been used.
A professional may be held liable for negligence on one of the two findings; either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence."
7. In the instant case respondent No. 1-Dr. Gupta is a qualified and experienced ENT surgeon. He thus possessed the requisite skill for performance of the operation in question. As already pointed out it could not be also shown that he did not exercise his skill with reasonable competence in the instant case. Surely he at the given time was not expected to undertake the cochlear implantation rather a complicated surgery which as explained by him he is not doing the same at Jabalpur. For what we have said above we find ourselves in full agreement with the finding recorded by the District Forum that no negligence on the part of respondents was established in the case. We thus decline interference and dismiss the appeal but with no order as to costs.

2016 (6) ALD 18, II (2016) CPJ 482 (NC), III (2016) CPJ 463 (NC) Arun Kumar Manglik Vs. Respondent: Chirayu Health and Medicare Pvt. Ltd. and Ors.

MANU/CF/0156/2016

Equivalent Citation: 2016(6)ALD18, II(2016)CPJ482(NC), III(2016)CPJ463(NC)

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI

First Appeal Nos. 438 and 453 of 2015

Decided On: 25.02.2016

Appellants: Arun Kumar Manglik
Vs.
Respondent: Chirayu Health and Medicare Pvt. Ltd. and Ors.

Judges/Coram:
J.M. Malik, J. (Presiding Member) and Rekha Gupta, Member
Counsels:
For Appellant/Petitioner/Plaintiff: Vijay Raghav Singh, Advocate and Pankaj Gupta, Authorised Representative
For Respondents/Defendant: Mohan Chouksey, Advocate and Ajay Goenka
Subject: Consumer
Acts/Rules/Orders:

·  Indian Penal Code 1860, (IPC) - Section 304-A

Cases Referred:

·  Meenakshi Mission Hospital and Research Centre vs. Samuraj and Anr. MANU/CF/0068/2004;

·  Jacob Mathew vs. State of Punjab and Anr. MANU/SC/0457/2005;

·  Kusum Sharma and Ors. vs. Batra Hospital and Medical Research Centre and Ors. MANU/SC/0098/2010

Authorities Referred:
Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh)
Disposition:
Disposed off

ORDER

Rekha Gupta, Member

1. The present first appeal Nos. 438 of 2015 filed by the Complainant and FA No. 453 of 2015 is filed by the Opposite Parties have been filed against a common order dated 27.4.2015 in consumer complaint No. 11 of 2011 passed by the Madhya Pradesh State Consumer Disputes Redressal Commission. Hence we propose to pass a common order. The facts of the case as per the appellant/Arun Kumar Manglik were that the appellant's wife Mrs. Madhu Manglik the deceased had expired on 15.11.2009 at 8.50 p.m. during treatment at Chirayu Health and Medicare Pvt. Ltd., Bhopal (in short, 'the Chirayu Hospital')/Respondent. Respondent No. 2 Dr. Ajay Goenka was the Director of the said Hospital.
2. On 15.11.2009, at about 7.00 p.m. Mrs. Madhu Manglik was admitted by her husband in the said hospital as she was having fever. On examination of her blood samples it was confirmed that the deceased was suffering with dengue fever. The deceased was admitted in the hospital with cashless medical insurance of United India Insurance Company. It was however, alleged that after the death of the deceased the respondents did not claim reimbursement from the Insurance Company.
3. At the time of admission in the hospital the deceased was diagnosed as a case of dengue fever with normal platelet count with history of catheter ablation, Parocxysmal Supra Ventricular Tacchyacardia (PSVT). Prior to her admission the blood report of 14.11.2009 indicated TLC 1900/cms., platelets 1.79 lakh/cumm, dengue NSI Ag Positive. However at the time of admission on 15.11.2009 the platelet count of the deceased had decreased to 97000/cumm, and around 6:30 p.m. on the same day the platelet count further went down to 19000/cumm. During the entire period, that the deceased remained under treatment, Consultant In-charge Dr. Ajay Goenka remained absent. They admitted her in the Intensive Care Unit (ICU). Dr. Vijay Verma, Dr. Abhay Tyagi and Dr. Mohammad Akeel Khan and Dr. Atul Singhai monitored the condition of the deceased. However, there was total lack of fair and reasonable standard of care. Not even the blood grouping/cross matching/arrangement for blood/plasma were made. The attending doctors despite the deteriorating condition of the deceased, kept on misguiding the relatives as well as the senior doctors of the city, who called upon to see and enquire about the health related aspect of deceased. They very casually and carelessly repeatedly assured that everything was fine and there was no need to worry that the patient though restless was improving. Ultimately, on 15.11.2009 itself at about 8:50 p.m. due to the indolencent, careless, ignorant and un-skillfulness treatment by the Chirayu Hospital, Mrs. Madhu Manglik died.
4. For redressal of his grievance, complainant approached the State Commission and prayed for Rs. 48 lakh as compensation along with interest @ 18% p.a. from the date of filing of the complaint and Rs. 60,000 as cost of litigation.
5. Controverting the allegations made by the complainant, the opposite parties filed the reply denying the allegations that Smt. Madhu Manglik died due to negligence, carelessness and improper treatment in the hospital. Opposite parties averred that Smt. Madhu Manglik was admitted at 7:00 a.m. on 15.11.2009, Sunday, for dengue fever with a normal platelet count. This diagnosis was based on the report of Glaze Pathology of 14.11.2009. The report indicated dengue NSI Ag positive and platelet count of 1.79 lakh/cumm. Her past cardiac history was also mentioned. Previous treatment papers were not made available. As a part of critical care the tests for SGOT, SGPT, renal function, sonography of abdomen in dengue fever were done. In the morning platelet count of Smt. Madhu Manglik was 97000/cumm, and therefore, blood or platelet transfusion at this stage was not needed. Chirayu Hospital had, however, component blood banking with apheresis machine used for plateletpheresis. O.P. 2/Dr. Ajay Goenka on 15.11.2009, Sunday, was on leave and out of station. It was denied that the request of attendants to call in senior doctors was not attended. Senior Dr. N.P. Mishra was informed on phone and on his advice the blood investigations were repeated. Platelet count of 97000/cumm was not alarming count in a case of dengue. According to recommendations of Government of M.P., Health Department and WHO if patient was not having haemorrhagic tendency, upto 20000/cumm no platelet transfusion was required.
6. Opposite parties denied that Mrs. Madhu Manglik was treated recklessly, negligently or carelessly. She was attended to by Dr. Abhay Tyagi who is a qualified MBBS doctor from a MCI recognized Medical College having special experience in critical care, and had been working in Chirayu Hospital to the last 2 years. Another doctor who attended Smt. Madhu Manglik was Dr. Atul Singhal, who was also registered with M.P. Medical Council and was working in Chirayu Hospital since the last 5 years. Dr. Akeel also attended Smt. Madhu Manglik. He was M.D. Medicine, consulting physician and cardiologist. He was also working in Chirayu Hospital since the last 3 years. According to opposite parties Smt. Madhu Manglik developed "Dengue Shock Syndrome". This is a condition which precipitates suddenly and patient deteriorates very fast. Along with this Smt. Madhu Manglik had developed PSVT. According to the Pathology Report at the time of admission her platelet count was 97000/cumm. On a repeat report it was shown 19000/cumm. The reports in Pathology Department were entered in chronological order, therefore, it could be interpreted that report No. 12312 was done in morning and report No. 12349 was done in evening. As platelet in the evening had fallen down they arranged for blood transfusion. Bed Head Sheet of the whole treatment which gave details of the treatment. The opposite parties denied the claim made by complainant under different heads of non-pecuniary losses and submitted that complainant was not entitled to claim any amount of compensation from them. They prayed for dismissal of the complaint.
7. The State Commission vide its order dated 27.4.2015 partly allowed the complaint and observed as under:
"48. Taking into consideration the aforesaid propositions, in our opinion, the complainant has highly exaggerated the claim. His son and daughter are highly educated and working persons, and apart of it they have not joined as complainant. Complainant, however, is entitled to receive compensation for mental agony and loss of consortium. In our opinion, in the circumstances of the case, a lump sum amount of Rs. 6,00,000 (six lakhs) would be just compensation to complainant.

49. Accordingly, the complaint is partly allowed. The opposite party Nos. 1 and 2 are directed to pay Rs. 6,00,000, jointly and severally, to complainant within 45 days from today. In case of default, the amount shall carry interest at the rate of 9% till payment. The opposite parties shall also bear the cost of litigation which is quantified at Rs. 20,000."

8. While giving order, the State Commission held that:
"40. In view of the above, though we cannot form any definite opinion about transfusion of platelet at that point of time still we find that the opposite parties did not take all the necessary and reasonable precaution and steps for monitoring the fluid therapy. Serial haematocrit determinations are essential guide for treatment, since they reflect the degree of plasma leakage and need for intravenous administration of fluids. Haematocrit should have been determined regularly for the management of fluid therapy. Excessive fluid replacement and continuation for a longer period after cessation of leakage will cause respiratory distress from massive pleural effusion, ascites and pulmonary congestion/oedema. This can be dangerous.

41. As per WHO guidelines the patient requires regular and sustained monitoring. If the patient has already received about 1000 ml. of intravenous fluids and the vital signs are still not stable, the haematocrit should be repeated and: (a) if the haematocrit is increasing, intravenous fluid should be changed to colloidal solution preferably Dextran, or (b) if haematocrit is decreasing, fresh whole blood transfusion 10 ml/kg dose should be given. It appears that the opposite parties remained oblivious of these norms. They sent the blood sample of the patient for examination at 6:45 p.m. when patient had cardiac arrest. It is true that after cardiac arrest the opposite parties made all the efforts to save the life of patient, but it is not the after - care which is important. In Meenakshi Mission Hospital & Research Centre v. Samuraj & Anr., MANU/CF/0068/2004 : I (2005) CPJ 33 (NC) the National Commission observed:

"Secondly, that the doctors of the appellant had taken all the necessary and reasonable steps to save patients and death of the patient occurred beyond the control of the doctors. The question is not of efforts to save the patient. Both the lower Forums have fastened the responsibility on the petitioner hospital on the very cause of cardia-rest within half an hour of the administering of anaesthesia. It is this which resulted death of the child. It is not after-care which is important. The whole case revolves around as to what caused the cardiac-rest resulting in death."

42. It remained unexplained as to when patient was admitted with platelet count 97000/cumm and haemoglobin 13.4 gm/dl, how platelet count fell and come-down to 19000/cumm and heamoglobin to 8.1 gm/dl and her BP came to be non-recordable at 6:45 p.m. and patient suffered cardiac arrest when continuously she remained under monitoring in ICCU. It is true, no symptoms of internal haemorrhagic petechiae, ecchymoses, purpura were found with the patient and no ascites seen in sonography, but that did not exonerate the opposite parties from their duty to act according to the guidelines to be followed in the treatment of DHF/DSS. It was obligatory on the part of opposite parties to ensure that deceased should have been treated and monitored as per accepted guidelines and normal practice. But they failed to do what they ought to have done. It is true that it is not always possible for a doctor to record each and every minute detail of the procedure done by him in case of emergent situation and in critical condition of patient, but at the same time it is expected from the doctor that he should perform his duty sincerely and vigilantly to standard practice and guidelines settled for treatment of particular ailment in given situation. A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.

44. After evaluating over all circumstances appearing from the record we are of the opinion that doctors of the opposite party did not follow the standard protocol and the guidelines developed by WHO and NVBDCP for the treatment of DF/DHF/DSS. They failed to treat the patient with sincerity according to guidelines. They ought to have monitored the rise of fall in the haematocrit of the patient while providing fluid therapy by infusing crystalloid and colloids intravenous fluids. As per guidelines this was an important life saving measures, therefore, the patient should have been monitored on an hourly basis based on periodic haematocrit/platelet count determination and vital signs. Without measuring the weight of the patient in accordance with the standard practice of weighing patient lying on bed, doctors continued fluid therapy till her cardiac arrest and ultimate death. They have failed to have blood grouping and matching of the patient at early stage which should have been done in a patient in shock as routine precaution. They even did not take care to monitor the urine out-put of the patient which was essential during the treatment by fluid therapy. In these circumstances, ultimately deceased suffered bradycardia, cardiac arrest and died. For these reasons, we feel compelled to hold that the treating doctors of opposite parties acted negligently and committed deficiency in service in treating the deceased.

9. We have heard the learned Counsel for the parties and gone through the record. In FA No. 438 of 2015 the complainant/appellant has asked for enhancement of compensation awarded to him. Learned Counsel for the appellant in FA No. 453 of 2015 has contended that appellant No. 2/opposite party No. 2 was not present throughout and the State Commission proceeded to award compensation against appellant No. 2 - Dr Ajay Goenka.
10. It was further contended that the State Commission should have discussed the previous treatment, which was given to the deceased to appreciate as to what prompted the complainant to admit his wife in such an early hours of the fateful day. In fact, there were documents available on record, which will demonstrate that dengue was diagnosed on 14.11.2009 and there was delay of about 16 hours in admitting the patient to the appellant hospital. Despite of having fever, vomiting, decrease appetite, restlessness, bodyache no physician's consultation was taken. The State Commission has overlooked the fact that Medical Council of India had forwarded the matter to the Madhya Pradesh Medical Council with a request to investigate and take necessary action in the matter and thereafter, on 24.2.2014 Medical negligence against the accused doctors. Thus, it was all the more necessary for the State Commission to have gone through the record of the Medical Council, reasons assigned for the opinion that there was no medical negligence before arriving at any finding of medical negligence. In the impugned order, it has been categorically noted that previous treatment papers were not made available to the appellant hospital. The State Commission should have insisted for production of these documents but, despite request from the hospital, such papers were not produced neither at the time of the admission at Chirayu Hospital or during treatments or at the time of the filing of the complaint nor subsequently. Non-filing of patient's history, and past treatment should have given rise to adverse inference against the complainant, but these vital facts have been overlooked by the State Commission.
11. The State Commission ignored the fact that on 15.11.2009, Dr. Ajay Goenka was on leave and out of station. Therefore, impleading Dr. Ajay Goenka in his personal capacity, especially when the patient was neither under his care nor was attended by him. Therefore, the State Commission has faulted in proceeding against Dr. Ajay Goenka in his individual capacity.
12. The State Commission without examination of facts accepted the allegations that patient was administered excess of fluid (9 units each) of IV fluids viz. Dextrose 5 % and Ringer Lactate. When the patient got admitted at 7.15 a.m., at that time a total of 5 units of crystalloid transfusion was planned for next 24 hours in the form of 3 units of DNS and 2 units of Isolyte M (total of 2.5 liters) which was being transfused on planned basis. However against the expectation the patient went into sudden hypotension and shock at 6. p.m., by that time only half of the planned fluid was transfused to the patient i.e. approx. 1250 ml. Seeing the patient going into shock, stat resuscitation fluid in the form of 2 units ringer lactate and 1 unit haemacele was given to overcome the sudden hypotension, which is a standard medical practice for sudden hypotension associated with distributive, hypovolemic or haemorrhagic shock. Hence, against the findings of the State Commission which concluded that 9 units of IV fluid was given fast only half i.e. (1250 ml) of planned IV fluid plus 1 litre of Ringer lactate and 500 ml. of haemacele, i.e. a total amount of 1500 + 1250 ml. i.e. 2750 ml. of fluid was transfused to the patient which equals of 5 units rather than alleged 9 units. Secondly Dextrose 5% was neither being advised and nor being transfused at any moment of time to the patient. With this amount of fluid no patient of such type can go into overloading situation. As per the bed head ticket, patient had complaints of vomiting, fever, decreased appetite. As per para 5.2.2 of the guidelines issued by NVBDCP clearly mentions that IV fluid may be administered if the patient was vomiting persistently or refusing to feed. In the present case, both the parameters were available and therefore, it cannot be said that there was any fluid overload in the case of the deceased. Besides this, the patient's blood pressure was very low and non-recordable. Thus, it was necessary to maintain blood pressure IV fluid should have been administered rapidly. Thus, there was no deficiency in administrating IV fluid as has been alleged. In case of fluid overload there is third space collection in the form of pleural and intraperitoneal fluid. Which is called as pleural effusion and Ascites. These were also not evident in the patients X-ray and in USG Abdomen's report. Which clearly suggests "No ascites seen". Even when the patient was put on ventilator there was no frothing, which would have been observed in the Endotracheal tube and tubes of the ventilator in cases of fluid overload because of pulmonary edema.
13. It was alleged no instructions were given regarding not administering the medicine "Aspirin". Learned Counsel for the appellants in FA No. 453 of 2015 contended that they never administered Aspirin to the patient. It was neither prescribed nor administered. Therefore, plea of not instructing the patient to not to take Aspirin is a bogus argument. But it amounts to admission on the part of the complainant that the patient was administered Aspirin by the relatives of the patient without informing the hospital and the treating doctors, which could have been responsible for decreased in platelet count and ultimately, patient's deterioration.
14. Further on admission the platelet count' was 97000 and the patient was under proper management. Such platelet count of 97000 does not warrant transfusion unless and until there is a clear evidence of bleeding or patient was required to undergo some invasive procedure. According to recommendations of Government of M.P., Health Departmental WHO if patient was not having haemorrhagic tendency, upto 20000/cumm no platelet transfusion was required. Guidelines of NVBDCP clearly provides that blood transfusion is to be given only when the haematocrit falls rapidly due to hemorrhage. Haematocrit of the patient was on 14th Nov 37.2 and on 15 Nov is 38.0 there is no significance change in the haematocrit value. As there was no signs of hemorrhage, so there was no need for blood transfusion at that level.
15. Ongoing through the Guidelines for treatment of Dengue Fever/Dengue Haemorrhagic fever in small hospitslaby WHO we find that Dengue is an acute flu like fever caused by virus which occurs in two forms (i) Dengue Fever (DF) and (ii) Dengue Haemorrhagic fever (DHF).
Dengue Fever is marked by an onset of sudden high fever, sever, headache, pain behind eyes and pain in the muscles and joints.
Dengue Haemorrhagic fever (DHF) is a more severe form, in which bleeding and sometimes shock occurs. Symptoms of bleeding usually occur after 2-3 days of fever.
The high fever continues for 5-6 days (103-105 F or 39-40 C) It comes down on the third or the fourth day but rises again. The patient feels a lot of discomfort and is very weeks after the illness.
Recognition of Dengue Fever
(i) Sudden onset of high fever; (ii) severe headache (mosty in the forehead); (iii) pain behind the eyes which worsens with eye movement; (iv) body aches and joint pains; and (v) nausea or vomiting.
Recognition of Dengue Haemorrhagic Fever and Shock.
Symptoms similar to dengue fever, plus and one or a combination of the following:
(i) Severe and continuous pain in the abdomen; (ii) bleeding from the nose, mouth and gums or skin bruising; (iii) frequent vomiting with or without blood; (iv) black stools like coal tar; (v) excessive thirst (dry mouth); and pale, cold skin.
Diagnosis
Confirmation of DF and DHF can be done by specific laboratory tests. However, specific diagnosis is not required for treatment of patients with DF/DHF.
Treatment:
Patient(s) suspected of having DF or DHF must be examined by a doctor.
Proper and early treatment can relieve the symptoms and prevent complications and death. Aspirin and brufen should be avoided in dengue fever, as they are known to increase the bleeding tendency and may lead to serious complications, Paracetamol can be given on medical advice".
Treatment of DF and DHF (Spiral binding book page 93)

5.1 Febrile Phase.

In the early febrile phase, it is not possible to distinguish DF from DHF. Their treatment during the febrile phase are the same, i.e., symptomatic and supportive:
Rest and paracetamol (not more than 4 time in 24 hours) according to age for fever above 39 C.
Do not give aspirin or brufen. Aspirin can cause gastritis and/or bleeding. In children, reye's syndrome (encephalopathy) may be a serious complication.
16. In the present case admittedly the patient was brought to the hospital and admitted on 15.11.2009 at 7.00 a m. As per the history sheet she had fever for the last five days with body ache, headache, vomiting, nausea and less palpitation. She had past history of hysterectomy in 1994 and catheter abalation for PSVT. Dengue had been confirmed by the pathology report dated 14.11.2009 of Glaze Pathology. The deceased patient's platelet count was 1.79 lakh cumm which was normal. The patient was put on fluid therapy as also some medication which however, did not include aspirin. She was given paracetamol along with other medicines. She was under observation and remained stable till about 6.00 p.m. when she became restless and irritable, extremely cold, BP was un-recordable, pulse non palapable and she had cardiac arrest. She was immediately intubated and put on ventilatory support. She was given treatment as required for her cardiac arrest. She had another cardiac arrest at 8.00 p.m. and though all resuscitative measures were taken she was declared dead at 8.55 p.m. During this time, two doctors also visited the hospital at the request of patient and treatment as advised by them was also given. Unfortunately, the patient died of cardiac arrest due to dengue with shock (Thrombocytopaenia). After the death of the patient Mrs. Madhu Manglik, the complainant made a complaint to the Medical Council for gross medical negligence during the medical treatment at Chirayu Health and Medicare Pvt. Ltd. The complaint was referred to the MP Medical Council. The MP Medical Council in a report signed by eight Members observed as under:
"The expert committee agreed that in case of dengue fever, "dengue shock synodrome" develops suddenly and rapidly and patient can felt serious minimizing the chances of survival. The committee after scrutiny of case file observed that the patient was managed properly as per protocol and found no negligence in the case.
The Decision of the Ethics-cum-Disciplinary Committee dated 24.2.2014.
The Committee unanimously decided that the complainant failed to prove the case of medical negligence against the accused doctors. Hence, the case is closed."
17. A communication was then sent to Shri Arun Kumar Manglik by the MP Medical Council conveying the decision of the Committee which reads as under:

"The Committee unanimously decided that the complainant failed to prove the case of medical negligence against the accused doctors. Hence, the case is closed."

18. The two doctors who had been brought in by the patient also gave their affidavits which show that they had visited the hospital on 15.11.2009 as also advised regarding the treatment of late Madhu Manglik. Dr. C.C. Chaubal in his affidavit has stated that he visited the hospital at about 5.30 p.m. when "the patient was undergoing cardiac pulmonary resuscitation. Development of cardiac arrest in any patient requires a similar protocol for resuscitation. This case developed shock followed by sudden cardiac arrest which is a serious complication of dengue shock syndrome."
19. Dr. N.P. Mishra in his affidavit has stated that he was consulted on phone two to three times by the treating Dr. Abhay Tyagi and also visited the Hospital around 6.30 p.m. to see the patient. He "reviewed the entire treatment during one and half hour stay in the ICU, and I found that the treatment given to the patient since morning was appropriate for her clinical condition."
20. Dengue Shock Syndrome is due to dengue virus which causes abdominal pain, haemorrhage and circulatory collapse (shock), it starts abruptly and occurs after 2-6 days with sudden collapse, cool clammy extremities, weak thread pulse, and blueness around the mouth. Pneumonia and heart inflammation may be present.
21. As per the literature given by Dr. Ajay Goenka titled as Hemodynamic Profiles of patients with dengue haemorrhagic fever during toxic stage: and echocardiographic study--"the mechanism of decreased cardiac output during toxic stage of DHF is complex. Decreased preload is accompanied by decreased left ventricular performance and possible a subnormalheart rate response in some patients."
22. Another literature titled as Cardiac Function in Vietnamese patients with different dengue severity grades-it has been stated that "patients with severe dengue have evidence or systolic and diastolic cardiac impairment with septal and right ventricular wall being predominantly affected". In the case of Mrs. Madhu Manglik her heart was already compromised as she had a permanent history of PSVT.
23. We find that the State Commission has arrived and recorded its findings without discussing the evidence based on which they had come to the conclusion that the deceased Madhu Manglik had been given excessive fluid which lead to fluid overload. There is no medical evidence or report on record to substantiate the same. We cannot understand as to why the State Commission found questionable that the deceased's Platelet Count fell from 97,000 to 19,000, "even though she was in the hospital". The State Commission has ignored the facts that the patient was suffering from DHF and the Platelet does fall suddenly in such cases. The State Commission while concluding that the hospital and the doctors had failed to perform their duty sincerely and as per the guidelines and ignored the fact that the patient had been suffering from fever for the last five days prior to being brought to the hospital. Even as per the complainant there were newspaper report regarding widespread dengue, which had resulted in many deaths. Mrs. Madhu Manglik was still not shown to any doctor. On the contrary in spite of symptoms which were suggestive of DHF, Aspirin prescribed for PSVT was continued. Aspirin during DF/DHF is fatal and accelerates the symptoms of DSS as it leads to bleeding and adversely compromising of platelets. The State Commission has also ignored the fact that even after Glaze Pathology diagnosed her case as that of dengue on the evening of 14.11.2009 the complainant waited till 15.11.2009 morning to take her to hospital. The State Commission has ignored the fact that once she was admitted to the hospital Mrs. Madhu Manglik was given medicines by the hospital and there was no question of advising the family to stop aspirin. The treating doctor stopped aspirin and gave paracetamol. But the fact remains that aspirin remains in the blood stream for 6-7 days and the damage was done. From the record put on the file as also the affidavits of the treating doctors who had been consulted, it has been established that the she was brought on the 6th day of her fever and well after she was diagnosed with Dengue and hence, already compromised and critical. The treating doctors of the hospital had followed the standard protocol prescribed for such patients, but unfortunately, could not save the patient. The MP Medical Council based on findings of the expert committee and also the Ethics-cum-Disciplinary committee had already decided that the complainant Arun Kumar Manglik had failed to prove the case of medical negligence against the accused doctor and closed the case on 24.2.2009 and communicated the same to the complainant on 5.6.2014.
24. The Hon'ble Supreme Court in the case of Jacob Mathew (Dr) v. State of Punjab and Anr., MANU/SC/0457/2005 : III (2005) CPJ 9 (SC) : VI (2005) SLT 1 : 122 (2005) DLT 83 (SC) : III (2005) CCR 9 (SC), has held that:

19. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth and Percy, ibid, Para 8.03)

22. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol. 30, Para 35):

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid, para 8.110)

29. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.

30. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can successfully wield his life-saving scalper to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.

32. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event/026 a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.

(1) We sum up our conclusions as under:
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', breach' and 'resulting damage'.

51. As we have noticed hereinabove that the cases of doctors (surgeons and physicians) being subjected to criminal prosecution are on an increase. Sometimes such prosecutions are filed by private complainants and sometimes by police on an FIR being lodged and cognizance taken. The investigating officer and the private complainant cannot always be supposed to have knowledge of medical science so as to determine whether the act of the accused medical professional amounts to rash or negligent act within the domain of criminal law under Section 304-A of IPC. The criminal process once initiated subjects the medical professional to serious embarrassment and sometimes harassment. He has to seek bail to escape arrest, which may or may not be granted to him. At the end he may be exonerated by acquittal or discharge but the loss which he has suffered in his reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. All that we are doing is to emphasize the need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Many a complainant prefers recourse to criminal process as a tool for pressurizing the medical professional for extracting uncalled for or unjust compensation. Such malicious proceedings have to be guarded against.

53. Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India. So long as it is not done, we propose to lay down certain guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient. A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor. The investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in Government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam's test to the facts collected in the investigation. A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

25. In the case of Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre and Others, MANU/SC/0098/2010 : II (2010) SLT 73 : MANU/SC/0098/2010 : I (2010) CPJ 29 (SC) : MANU/SC/0098/2010 : 2012 (2) RCR (Civil) 161, the Hon'ble Supreme Court while deciding whether the medical professional is guilty of medical negligence held that following well known principles must be kept in view:
(i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
(ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
(iii) The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
(vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
(viii) It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
(x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.
In view of the above, we find that the appellant in FA No. 438 of 2015, i.e., the complainant, has failed to prove his case of medical negligence and hence, we allow the FA No. 453 of 2015 by the appellants/opposite parties and set aside the order of the State Commission and dismiss the complaint. Accordingly, FA No. 438 of 2015 is also rejected.