A. SRIMANNARAYANAversusDASARI SANTAKUMARI & ANR.

                       [2013] 1 S.C.R. 230


A                     A. SRIMANNARAYANA
                                v.
                 DASARI SANTAKUMARI & ANR.
                 (Civil Appeal Nos. 368 of 2013)
                       JANUARY 09, 2013
B
     [SURINDER SINGH NIJJAR AND ANIL R. DAVE, JJ.]

       Judgment - Complaint against doctors - Before District
   Consumer Forum - Alleging medical negligence - Notice
C issued - Challenged by the doctors on the ground that
   complaint could not have been registered without seeking
   opinion of an expert in terms of decision in *Martin F.
   D'Souza's case - National Commission, by impugned
  judgment rejected the challenge relying on **V. Kishan Rao's
o case wherein Martin F.D'Souza's case was held per incuriam
  - On appeal, held: The judgment in Martin F. D'Souza has
  been correctly declared per incuriam by the judgment in V.
  Krishna Rao's case as the Jaw laid down in Martin F. D'Souza's
   case was contrary to the Jaw laid down in ***Jacab Mathew's
E case - Impugned judgment does not call for interference -
   Appeals dismissed - Medical Negligence.
         *Martin F. D'Souza vs. Mohd. /shfaq (2009) 3 SCC
    1: 2010 (5)SCR 1; **V. Kishan Rao vs. Nikhil Super
    speciality Hospital and Anr. (2010) 5 SCC 513: 2009 (3)
F   SCR 273; *** Jacob Mathew vs. State of Punjab and Anr.
    (2005) 6 sec 1- referred to.
                         Case Law Reference:
        2009 (3) SCR 273        Referred to          Para 6
G       2010 (5) SCR 1          Referred to          Para 6
        (2005) s sec 1          Referred to          Para 7
       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 368
  of 2013.
H                         230
A. SRIMANNARAYANA v. DASARI SANTAKUMARI &                      231
                  ANR.

    From the Judgment & Order dated 15.07.2010 of National             A
Consumer Disputes Redressal Commission at New Delhi in
R.P. No. 2032 of 2010.
                              WITH
C.A. No. 369 of 2013.                                                  B
   A.D.N. Rao, A. Ramesh, D. Geetha, R. Chandrachud, A.
Venayagam Balan for the Appellant.
    K.K. Kishore, Rameshwar Prasad Goyal for the
Respondent.                                                            c
     The following Order of the Court was delivered
                           ORDER
     1. Delay condoned
                                                                       D
     2. Leave granted.
      3. These appeals arising out of the aforesaid special leave
petitions have been filed against the judgment and order dated
15.07.2010 in R.P. No. 2032 of 2010 passed by the National
Consumer Disputes Redressal Commission (hereinafter                    E
referred to as "the National Commission"), New Delhi.
    4. Relevant facts are taken from Special Leave Petition
(C) No.26043 of 2010.
     5. The appellant and respondent No.2, who are doctors,            F
conducted an operation on the left leg of the husband of the
complainant. Sometime after the operation, the patient died on
13.07.2008. Respondent No. 1, wife of the deceased, filed a
complaint against the appellant and respondent No.2, before
the District Consumer Forum. We may notice here that                   G
respondent No.2 is the appellant in Civil Appeal
No ........................... of 2013 arising out of SLP(C) No.1495
of 2011. The complaint was duly registered and notice was
issued to the appellant and respondent No.2. Against the
issuance of the notice, the appellant filed a revision petition        H
    232      SUPREME COURT REPORTS                [2013] 1 S.C.R.

A before the State Consumer Disputes Redressal Commission,
  Hyderabad on the ground that the complaint could not have
  been registered by the District Forum without seeking an
  opinion of an expert in terms of the decision of the Supreme
  Court reported in Martin F. D'Souza Vs. Mohd. /shfaq (2009)
B 3 SCC 1. In this revision petition, respondent No.2 filed IA
  No.2240 of 2009 praying for stay of proceedings before the
  District Consumer Forum. The State Commission rejected the
  revision petition by granting liberty to the appellant to file the
  necessary application before the District Forum to refer the
C matter to an expert. He did not file any application before the
  District Forum, but challenged the aforesaid order of the State
  Commission by filing revision petition No. 2032 of 2010 before
  the National Commission. The revision petition has been
  dismissed by the National Commission by relying upon the
  subsequent judgment of this Court in V. Kishan Rao Vs. Nikhil
0
  Super Speciality Hospital & Anr. (2010) 5 SCC 513, wherein
  this Court has declared that the judgment rendered in Martin
  F. D'Souza (supra) is per incuriam. Hence the present special
  leave petitions challenging the aforesaid order of the National
  Commission dated 15.07.2010.
E
       6. Heard Mr. Rao, learned counsel appearing on behalf of
  the appellant and respondent No.2 and Mr. K.K. Kishore,
  learned counsel appearing on behalf of the respondent No.1,
  at length.
F      7. Mr. Rao has tried to persuade us that the judgment of
  this Court in the case of V. Kishan Rao Vs. Nikhil Super
  Speciality Hospital & Anr. (supra), has erroneously declared
  the earlier judgment of this Court in the case of Martin F.
  D'Souza Vs. Mohd. lshfaq (supra) as per incuriam, on a
G misconception of the law laid down by a three-Judge Bench of
  this Court in Jacob Mathew Vs. State of Punjab & Anr., (2005)
  6 sec 1. We are not inclined to accept the submission made
  by Mr. Rao. The judgment in Jacob Mathew (supra) is clearly
  confined to the question of medical negligence leading to
H criminal prosecution, either on the basis of a criminal complaint
 A. SRIMANNARAYANA v. DASARI SANTAKUMARI & 233
                   ANR.
or on the basis of an FIR. The conclusions recorded in                A
paragraph 48 of Jacob Mathew (supra) leave no manner of
doubt that in the aforesaid judgment this Court was concerned
with a case of medical negligence which resulted in prosecution
of the concerned doctor under Section 304A of the Indian Penal
Code. We may notice here the relevant conclusions which are           B
summed up by this Court as under:
    )()()(   )()()(   )()()(     )()()(


    )()()(   )()()(   )()()(     )()()(


    "(5) The jurisprudential concept of negligence differs in civil   C
    and criminal law. What may be negligence in civil law may
    not necessarily be negligence in criminal law. For
    negligence to amount to an offence, the element of mens
    rea must be shown to exist. For an act to amount to criminal
    negligence, the degree of negligence should be much               D
    higher i.e. gross or of a very high degree. Negligence
    which is neither gross nor of a higher degree may provide
    a ground for action in civil law but cannot form the basis
    for prosecution.
    (6) The word 'gross' has not been used in Section 304A            E
    of IPC, yet it is settled that in criminal law negligence or
    recklessness, to be so held, must be of such a high degree
    as to be 'gross'. The expression 'rash or negligent act' as
    occurring in Section 304A of the IPC has to be read as
    qualified by the word 'grossly'.                                  F

    (7) To prosecute a medical professional for negligence
    under criminal law it must be shown that the accused did
    something or failed to do something which in the given
    facts and circumstances no medical professional in his            G
    ordinary senses and prudence would have done or failed
    to do. The hazard taken by the accused doctor should be
    of such a nature that the injury which resulted was most
    likely imminent.
     (8) Res ipsa loquitur is only a rule of evidence and             H
    234         SUPREME COURT REPORTS                        [2013] 1 S.C.R.


A         operates in the domain of civil law specially in cases of
          torts and helps in determining the onus of proof in actions
          relating to negligence. It cannot be pressed in service for
          determining per se the liability for negligence within the
          domain of criminal law. Res ipsa loquitur has, if at all, a
B         limited application in trial on a charge of criminal
          negligence."
       8. The guidelines in Paragraph 48 were laid down after
  rejecting the submission that in both jurisdictions i.e. under civil
  law and criminal law, negligence is negligence, and
C jurisprudentially no distinction can be drawn between
  negligence under civil law and negligence under criminal law.
  It was observed that :-
          " 12 .................................................................. .
          The submission so made cannot be countenanced
D
          inasmuch as it is based upon a total departure from the
          established terrain of thought running ever since the
          beginning of the emergence of the concept of negligence
          up to the modern times. Generally speaking, it is the
          amount of damages incurred which is determinative of the
E         extent of liability in tort; but in criminal law it is not the
          amount of damages but the amount and degree of
          negligence that is determinative of liability. To fasten
          liability in criminal law, the degree of negligence has to be
          higher than that of negligence enough to fasten liability for
F         damages in civil law. The essential ingredient of mens rea
          cannot be excluded from consideration when the charge
          in a criminal court consists of criminal negligence.
          28. A medical practitioner faced with an emergency
          ordinarily tries his best to redeem the patient out of his
G
          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
H
A. SRIMANNARAYANA v. DASARI SANTAKUMARI & 235
                           ANR.
     hands under fear of legal action cannot perform a                A
     successful operation and a quivering physician cannot
   . administer the end-dose of medicine to his patient.
    29. 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,         8
    neither can a surgeon successfully wield his life-saving
    scalpel to perform an essential surgery, nor can a physician
    successfully administer the life-saving dose of medicine.
    Discretion being the better part of valour, a medical
    professional would feel better advised to leave a terminal        C
    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         D
     to society."
      9. The aforesaid observations leave no manner of doubt
that the observations in Jacob Mathew (supra) were limited only
with regard to the prosecution of doctors for the offence under       E
Section 304A IPC.
    10. The aforesaid observations and conclusions leave no
manner of doubt that the judgment rendered by a two-Judge
Bench of this Court in the case of Martin F. D'Souza (supra)
has been correctly declared per incuriam by the judgment in           F
V. Kishan Rao (supra) as the law laid down in Martin F.
D'Souza (supra) was contrary to the law laid down in Jacob
Mathew (supra).
    11.ln view of the above, we are of the opinion that the
conclusions recorded by the National Commission in the                G
impugned order does not call for any interference. The civil
appeals are dismissed.
K.K.T.                                      Appeals dismissed.
                                                                      H