# POONAM VERMA v. ASHWIN PATEL & ORS

- **Citation:** [1996] Supp. 2 S.C.R. 671
- **Court:** Supreme Court of India
- **Decided:** 1996-05-10
- **Case number:** Civil Appeal No. 8856 of 1994
- **Bench:** Kuldip Singh, Saghir Ahmad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/poonam-verma-v-ashwin-patel-ors-14289
- **Pages:** 26

## Headnote

B
Tarts :
Negligence-Doctor holding Diploma in Homoeopathic Medicine and
Surgery registered under Bombay Homoeopathic Practitioners Act,
C
1959-Specific mandate under S. 20(12)(a) thereof that such registered practitioner "shall practice Homoeopathy only''-Administration of Allopathic
medicine-Death of patient-Held : doctor not qualified to practice Allopathy-Hence, a quack-Having entered prohibited field of Al/apathy in
contravention of statui01y provisions was liable to be prosecuted under S.
15(3) of Indian Medical Council Ac' 1956-Was guilty of negligence per D
se-In the circumstances of the case, doctor directed to pay Rs. 3 lakhs to
widow of deceased'-Bombay Homoeopachic Pracritioncrs Act, 1959, Ss.
20(12)(a), 28(iii), 14-A, 23, 2(8), (12) and (16)-IndianMedical CouncilAct,
1956, S. 15(3)-Maharashtra Medical Council Act, 1965, Ss. 2(d),
16(1)-Consumer Protection Act, 1986, S. 2(1)(o), (c), (d) & (g).
E
Words & Phrases :
11Negligence
1
~ "negligence per se
11 and
11quack"-
Meaning of
Legal Maxims :
"Sic Utere tuo ut alienwn non loedas"-Meaning and applicability of
Respondent No. 1 after receiving a Diploma in Homoeopathic
Medicine and Surgery, was registered as medical practitioner under BomF
bay Homeopathic Practitioners Act, 1959. According to him he initially
joined a private allopathic nursing home as Chief Medical Officer till he G
opened his own private clinic and took up private practice. The appellant's
husband, who complained of fever, was examined by Respondent 1 and he
kept him on allopathic drugs for viral fever which, according to him, was
then prevalent in the locality and thereafter for typhoid fever which,
according to him, was also prevalent there. He gave broad spectrum H
671
672
SUPREME COURT REPORTS (1996! SUPP. 2 S.C.R.
A antibiotics which antipyretics together with tablets as also intra-muscular
injections of a sodium compound to relieve him of pain without ascertaining the cause of the pain. When condition of the patient deteriorated, he
was shifted to a private nursing home of Respondent 2 as an indoor patient
on the advice of Respondent 1. The patient received treatment there till
B
evening when he was transferred to a hospital in an unconscious state
where, after about four and a half hours of admission, he died. At the time
of death, the deceased was aged 35 years and was drawing a salary of Rs.
5700 out of which he maintained his family comprising of himself, his wife
and two children besides supporting the aged parents. The appellant filed
a petition before the National Con;umer Disputes Redressal Commission
C for compensation and damages from Respondents 1 and 2 for their
negligence and carelessness in treating her husband but the Commission
dismissed the petition. Aggrieved by the Commission's judgment the appellant preferred the present appeal in this Court which directed the
Director of All India Institute of Medical Science "to appoint a Board of
D doctors/specialists in medicine and related branches, to examine the
material being sent along \Yith this order, regarding the correctness,
adequacy and other relative aspects of the treatment rendered to the
deceased". Accordingly a Board was constituted, which on examination of
the records, could not give a positive opinion but observed that the
deceased died before a positive diagnosis could be established.
E
Allowing the appeal, this Court
HELD : 1.1. Respondent 1, having practised Allopathy, without being
qualified in that system, was guilty of Negligence per se and, therefore, the
F
appeal against him has to be allowed in consonance with the maxim Sic
Utere tuo ut a/ienum non loedas (a person is held liable at law for the
consequences of his negligence). Since the deceased had already suffered
at the hands o!' Respondent No. 1 and his condition had already been
damaged to an unascertainable extent before he \.l'as shifted to the clinic
of Respondent No. 2 it is not proper to proceed against Respondent No. 2
G s1iecially in view of the re

## Text

_Characters 0–39,968 of 54,030. This is a partial read: ask again with offset=39968 for what follows._

..
POONAM VERMA
A
v.
ASHWIN PATEL & ORS.
MAY 10, 1996
[KULDIP SINGH AND SAGHIR AHMAD, JJ.]
B
Tarts :
Negligence-Doctor holding Diploma in Homoeopathic Medicine and
Surgery registered under Bombay Homoeopathic Practitioners Act,
C
1959-Specific mandate under S. 20(12)(a) thereof that such registered practitioner "shall practice Homoeopathy only''-Administration of Allopathic
medicine-Death of patient-Held : doctor not qualified to practice Allopathy-Hence, a quack-Having entered prohibited field of Al/apathy in
contravention of statui01y provisions was liable to be prosecuted under S.
15(3) of Indian Medical Council Ac' 1956-Was guilty of negligence per D
se-In the circumstances of the case, doctor directed to pay Rs. 3 lakhs to
widow of deceased'-Bombay Homoeopachic Pracritioncrs Act, 1959, Ss.
20(12)(a), 28(iii), 14-A, 23, 2(8), (12) and (16)-IndianMedical CouncilAct,
1956, S. 15(3)-Maharashtra Medical Council Act, 1965, Ss. 2(d),
16(1)-Consumer Protection Act, 1986, S. 2(1)(o), (c), (d) & (g).
E
Words & Phrases :
11Negligence
1
~ "negligence per se
11 and
11quack"-
Meaning of
Legal Maxims :
"Sic Utere tuo ut alienwn non loedas"-Meaning and applicability of
Respondent No. 1 after receiving a Diploma in Homoeopathic
Medicine and Surgery, was registered as medical practitioner under BomF
bay Homeopathic Practitioners Act, 1959. According to him he initially
joined a private allopathic nursing home as Chief Medical Officer till he G
opened his own private clinic and took up private practice. The appellant's
husband, who complained of fever, was examined by Respondent 1 and he
kept him on allopathic drugs for viral fever which, according to him, was
then prevalent in the locality and thereafter for typhoid fever which,
according to him, was also prevalent there. He gave broad spectrum H
671
672
SUPREME COURT REPORTS (1996! SUPP. 2 S.C.R.
A antibiotics which antipyretics together with tablets as also intra-muscular
injections of a sodium compound to relieve him of pain without ascertaining the cause of the pain. When condition of the patient deteriorated, he
was shifted to a private nursing home of Respondent 2 as an indoor patient
on the advice of Respondent 1. The patient received treatment there till
B
evening when he was transferred to a hospital in an unconscious state
where, after about four and a half hours of admission, he died. At the time
of death, the deceased was aged 35 years and was drawing a salary of Rs.
5700 out of which he maintained his family comprising of himself, his wife
and two children besides supporting the aged parents. The appellant filed
a petition before the National Con;umer Disputes Redressal Commission
C for compensation and damages from Respondents 1 and 2 for their
negligence and carelessness in treating her husband but the Commission
dismissed the petition. Aggrieved by the Commission's judgment the appellant preferred the present appeal in this Court which directed the
Director of All India Institute of Medical Science "to appoint a Board of
D doctors/specialists in medicine and related branches, to examine the
material being sent along \Yith this order, regarding the correctness,
adequacy and other relative aspects of the treatment rendered to the
deceased". Accordingly a Board was constituted, which on examination of
the records, could not give a positive opinion but observed that the
deceased died before a positive diagnosis could be established.
E
Allowing the appeal, this Court
HELD : 1.1. Respondent 1, having practised Allopathy, without being
qualified in that system, was guilty of Negligence per se and, therefore, the
F
appeal against him has to be allowed in consonance with the maxim Sic
Utere tuo ut a/ienum non loedas (a person is held liable at law for the
consequences of his negligence). Since the deceased had already suffered
at the hands o!' Respondent No. 1 and his condition had already been
damaged to an unascertainable extent before he \.l'as shifted to the clinic
of Respondent No. 2 it is not proper to proceed against Respondent No. 2
G s1iecially in view of the report of the Board consisting of the Professors of
AllMS. [695-B-D]
1.2. A combined reading of the Bombay Homoeopathic Practitioners
Act, 1959, the Indian Medical Council Act, 1956 and the Maharashtra
H Medical Council Act, 1965 indicates that a person who is registered under
•
P. VERMA v. A. PATEL
673
the Bombay Homoeopathic Practitioners' Act, 1959 can practice A
Homoeopathy only and that he cannot be registered under the Indian
Medical Council Act, 1956 or under the State Act, n.amely, the
Maharashtra Medical Council Act, 1965, because or the restriction of
persons not possessing the requisite qualification. So also, a person possessing the qualification mentioned in the Schedule appended to the
Indian Medical Council Act, 1956 or the Maharashtra Medical Council B
Act, 1965 cannot be registered as a Medical Practitioner under the Bombay
Homoeopathic Practitioners Act, 1959, as he does not possess any
qualification in Homoeopathic System of Medicine. The significance of
mutual exclusion is relevant inasmuch as the right to practice in any
particular system of medicine is dependent upon registration which is
C
permissible only if qualification, and that too, recognised qualification, is
possessed by a person in that system. [690-C-E)
1.3. But merely because the Anatomy and Physiology are similar, it
does not mean that a person having studied one System of Medicine can D
claim to trtat the patient by drugs of another System which he might not
have studied at any stage. No doubt, study of Physiology and 1\natomy is
common in all systems of Medicines and the students belonging to different Systems of Medicines may be taught Physiology and Anatomy
together, but so far as the study of drugs is concerned, the pharmacology
of all systems is entirely different. [690-H; 691-A-B)
E
1.4. Since the law under which Respondent No. l was registered as
Medical Practitioner, required him to practice in HOMOEOPATHY
ONLY, he was under a statutory duty not to enter the field of any other
System of Medicine as, admittedly, he was not qualified in the other F
system, Allopathy, to be precise. He trespassed into a prohibited field and
was liable to be prosecuted under Section 15(3) of the Indian Medical
Council Act, 1956. His conduct amounted to an actionable negligence
particularly as the duty of care indicated by this court in DR. LAXMAN
JOSHI'S CASE WAS BREACHED BY HIM ON ALL THE THREE
COUNTS INDICATED THEREIN. A person who does not have knowledge G
of a particular System of Medicine but practices in that System is a Quack
and a mere pretender to medical knowledge of skill, or to put it differently,
a Charlatan. [691-D-F; 692-B]
Dr. Laxman Balaloishna Joshi v. Dr. T1imbak Bapu Godbole & Anr., H
674
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
A AIR (1969) SC 128 and A.S. Mittal v. State of U.P., AIR (1989) SC 1570,
rt::lied on.
2.1. ~egligence as a tort is the breach of a duty caused by omission
to do son1ething \l'hich a reasonable man would do, or doing something
which a prudent and reasonable man would not do. The definition involves
B the following constituents :
(1) a legal duty to exercise due care ;
(2) breach of the duty; and
C
(3) consequential damages. [684-H; 685-A-C]
D
B6>th v. Bi1111ingham Watenv01ks Co., (1856) 11 Ex 781, B1idges v.
Directms, Etc. of N.L., Ry. (1873-74) Lr 7 HR 213 and Govemor-General in
Cou11cil v. Mt. Salima11, (1948) ILR 27 Pat. 207, referred to.
Winfield and lolowicz 011 T01t, referred to.
2.2. Negligence has 1nany mainfestations - it n1ay be active negligence,
collateral negligence, continued negligence, criminal negligence, gross
negligence, hazardous negligence, active and passive negligence, wilful or
E
reek.Jess negligence or Negligence per se. Where a person is guilty of
Negligence per se, no futher proof is needed. [691-F-G]
Black's La~v Dictiuna1y, referred to.
2.3. Every person who enters into the profession, undertakes to bring
F
to the exercise of it, a reasonable degree of care and skill. It is true that
a Doctor or a Surgeon does not undertake that he will positively cure a
patient nor does he undertake to use the highest possible degree of skill,
as there may be persons more learned and skilled than himself, but he
definitely undertakes to use a fair, reasonable and competent degree of
G skill. This implied undertaking constitutes the real test. [685-D-E]
Bo/am v. F1iem Hospital Management Committee, (1957) 2 All ER
118; Whitehouse v. Jordon, [1981] 1 All ER 267 (HL); Maynard v. West
Midlands Regional Health Authmity, (1985) 1 All ER 635 (HL); Sidway v.
Bath/em Royal Hospital, [1985] 1 All ER 643 (HL) and Oiin Keo v. Govt.
· H of Malaysia, (1967) 1WLR813 (PC), referred to.
P.VERMA v.APATEL[S.SAGHJRAHMAD,J.]
675
3. It is now settled law that the Consumer Protection Act, 1986 is A
•pplicable to persons engaged in medical profession either as private
practitioners or as Government Doctors \Vorking in Hospitals or Govt.
Dispensaries. It is also settled that a patient \Vho is a "consumer" \vithin
the meaning of the Act has to be awarded compensation for loss or injury
suffered by him due to negligence of the Doctor by applying the same tests
as are applied in an action for damages for negli_gence.
Indian Medical Association v. B.P. Shantha, [1995] 6 SCC 651, followed. [684-F-G]
4. The deceased was 35 years of age and was getting Rs. 5700 per
month as salary. He died young and deprived his dependents, namely, the
widow, two children and parents, of the monetary benefit they were getting.
They are entitled under law to be compensated. The claim of the appellant
is decreed as against Respondent No. 1 for a sum of Rs. 3,00,000 payable
to her within three months from the date of the judgment failing which it
B
c
shall be recover-able in accordance with law. [695-E-G]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8856 of
1994.
From the Judgment and Order dated 8.11.94 of the National Con·
sumer Disputes Redressal Commission, New Delhi, in O.P. No. 184 of E
1992.
S.M. Sarin, P.N. Puri, Raju Ramaehandran, Aseem Mehrota, A.P.
Medh,
Manoj Wad, Ms. Usha S. Reddy and Mrs. J.S. Wad for the
appearing parties.
The Judgment of the Court was delivered by
S. SAGHIR AHMAD "Simiiia Simiiibus Curantur" (Like Cures Like)
is the basis of a system of therapeutics known popularly as Homoeopathy.
F
It is based on the premise that most effective way to treat disease is to use
drugs or other agents that produce the symptoms of the disease in healthy G
persons. This theory had its origin in or about 460 B.C. when the Greek
physician, Hippocrates, noted the similarity between the effe~t of some
drugs and the symptoms of the diseases they seemed to relieve. It was,
however, in the late 18th Century that this theory was tested and
popularised by German Physician, Christian Friedrich Samuel Hahnemann H
676
SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.
A as a new form of therapeutic treatment after six years test study of scores
of drugs on himself and others. Ultimately, in 1796, he published his
findings in a leading Medical journal under the caption "on a New Principle
for Ascertaining the Curative Power of Drugs" which set in motion a
process of continued research in all directions including its Pharmacology
B with the result that Homoeopathy is taught today as a positive science in
various Medical Colleges all over the country.
2. Respondent No. 1 pursued a 4 years' course in Homoeopathic
Medicine and Surgery and after being declared successful in the Examination conducted by the Homoeopathic Medical College, Anand, Gujarat, he
C was awarded a Diploma in Homoeopathic Medicine and Surgery on the
basis of which he was registered as a Medical Practitioner in 1983. Initially,
he joined a private nursing home at Bombay where he worked, as he claims,
as Chief Medical Officer from 1983 till he opened his own private clinic in
1989 and took up private practice.
D
3. Pramod Verma, husband of the appellant, was Sales Manager in
M/s. Encore Marketing P. Ltd. where the last salary drawn by him is said
to be Rs. 5,700 out of which he maintained his family comprising of himself,
his wife and two children besides supporting the aged parents.
4. On 4th of July, 1992, Pramod Verma, who complained of fever was
E examined at his residence by Respondent No. 1 (Dr. Ashwin Patel) who
kept him on allopathic drugs for viral fever up to 6th July, 1992 and,
thereafter, for typhoid fever. When condition of Pramod Verma
deteriorated, he was shifted to Sanjeevani Maternity and General Nursing
Home of Dr. Rajeev Warty (Respondent No. 2) as an indoor patient on
F
12th July, 1992. This was done on the advice of Respondent No. L Verma
received treatment there till the evening of 14th July, 1992 when he was
transferred to the Hinduja Hospital in an unconscious state where, after
about four and a half hour of adn1ission, he died.
5. Appellant, thereafter, filed (on 14.8.92) Original Petition No. 184
G of 1.992 before the National Consumer Disputes Redressal Commission
(for short, 'Commission'), at New Delhi praying for compensation and
damages being awarded to her by Respondents 1 and 2 for their negligence
and carelessness in treating her husband (Pramod Verma) but the Commission by its judgment and order dated 8.11.1994 dismissed the petition.
H It is this judgment which is challenged in this appeal.
P.VERMA v.A.PATEL[S.SAGHIRAHMAD,J.]
677
6. It appears that in the claim lodged bef~re the Commission, it was A
set out by the appellant that Respondent No. 1 was negligent in administering strong antibiotics to Pramod Verma initially for the treatment of Viral
Fever and subsequently for Typhoid Fever without confirming the diagnosis by Blood Test or Urine Examination. It was also set o~t that Respondent No. 1 was not qualified or even authorised to practise in Allopathic B
System of Medicine and prescribe allopathic drugs and, therefore, his lack
of expertise in the Allopathic System of Medicine was responsible for
deficiency in the treatment administered by him .
•
7. Negligence imputed to Respondent No. 2 is that Pramod Verma,
imn1ediately on his admission in the Nursing Home, was put on intrav~nous C
Glucose (Dextrose) drip without ascertaining the level of Blood Sugar by
a simple Blood Test. This was said to be primarily responsible for constant
and steady deterioration of Pramod Verma's condition, but Respondent
No. 2 continued to assure the appellant that Pramod Verma would soon
recover and there was no need to shift him to a better equipped Hospital.
It was, however, in the evening of 14th July, 1992, that Pramod Verma who D
was already in an unconscious state, was shifted lo Hinduja Hospital on
the advice of Respondent No. 2.
8. Both the Respondents filed separate counter-affidavits in which
they denied the allegation of negligence made against them and contended E
that they had taken all due and reasonable care to cure Mr. Verma of the
ailment from which he suffered. They contended that there was no
deficiency in service nor was there any negligence on their part.
9. The exact pleas raised in defence by Respondent No. 1 which have
been set out by the Commission in its judgment under appeal, are given F
below:
"It has been submitted by opposite party No. 1 that he has undergone and integrated course of study in both the Homeopathic and
Allopathic systems of Medicine and was awarded the D.H.M.S.
Diploma after his having passed the final examination at the end G
of a four year course conducted by the Homeopathic Medical
College, Anand, Gujarat. Exhibit Annexure R-1 is a copy of the
said diploma and it shows that the said diploma had been awarded
after the candidate had been examined inter alia in the following
subjects : Anatomy, Physiology, Pathology, Forensic Medicine, H
678
A
B
c
D
E
F
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
Surgery, Practice of Medicine, Hygiene, Midwifery and Gynaecology. Opposite party No. 1 has stated in his counter affidavit that
during thal final year of his study in lhe Homeopathic Medical
College, Anand he had been given training in the Anand Municipal
Hospital and also another private nursing home in Anand for a
period of six monlhs. Opposite party No. I was thereafter enrolled
as a registered Medical Practitioner in lhe States of Gujarat and
Maharashtra wilh Registration Numbers G649 (Gujarat) and
10197 (Maharashtra). Opposite party No. 1 has denied lhe allegations of the complainanl lhat h<t is nol qualified, competent and
authorised to practice the Allopathic system of Medicine. He has
submitted that he used reasonable degree of skill and knowledge
in treating the complainant's husband and had taken reasonable
degree of the care of patient while he was under his treatment.
It is further submitted by opposite parly No. l in his counter lhat
after the completion of his studies and obtaining the diploma, he
had worked as Chief Medical Officer at a well known Allopathic
clinic by name, Patel Surgical & Nursing Home, Andheri, Bombay
from 1983 to 1990 and he had gained very good experience in
examining, diagnosing and treating the patients with complaints of
various types of sickness and in prescribing necessary Allopathic
medicines. It is also submitted by opposite party No. 1 that late
Mr. Pramod Verma and his family had been taking Allopathic
treatment from him for the sickness of the members of the family
ever since they moved into the colony about one and a half years
prior to July, 1992 and he had been functioning as their family
physician.
According to opposite party No. l, Mrs. Poonam Verma came to
his clinic on the evening of 4th July, 1992 and requested him to
see her husband al her home. Accordingly, opposite party No I
made a house visit and examined Mr. Pramod Verma in the
G
evening of 4th July, 1992 and on such examination it was found
that Shri Verma had fever. Thereupon he prescribed :
(1) Cap. Ampicillin (500 mg. - four times a day)
H
(2) Tab. Paracetamol (500 mg.- 3 times a day)
P. VERMA v. A. PATEL [S. SAGHIRAHMAD, J.)
679
(3) Tab. Diavol (2 times a day) and
A
(4) Tab. B. Complex (2 limes a day)
Opposite party No. 1 has stated that he gave the above treatment
as he felt it may be a case of viral fever which was then very much B
prevalent in the locality.
Thereafter on 6lh July, 1992, Mrs. Verma called opposite party
No. 1 again to see her husband and hence he went to examine Mr.
Verma at his house on that day in the evening. It was found that
Shri Verma had mild fever and since that fever had continued for C
the third day, opposite party No. l states that he advised Mr.
Verma to undergo pathological tests, namely, blood test & urine
examination etc. Since entcric fever \Vas prevalent at that time in
the locality in question (Asha Nagar) and neighbouring localities
of Bombay, opposite party No. 1 prescribed Tab. Quintor (500 mg. D
2 times a day for 2 days) in the place of Cap. Ampicillin. It is stated
in the counter affidavit that quintor is a broad-spectrum antibiotic
which is active against the broad-spectrum of gram negative and
gram positive bacteria including Enterbacter. According to opposite party No. 1, Mr. Verma thereafter came to his clinic on 8th
July, 1992 and on examining him, opposite party No. l found that E
he \Vas not having any fever. Since there was no other con1plaint
also, opposite party No. 1 advised Mr. Verma to continue the same
treatment for another two days, i.e. upto 10th July, 1992. It is
further averred in the counter affidavit that on 10th July, 1992 Mr.
Pramod Verma again came to the clinic of opposite party No. 1,
F
he had no fever but complained of back-ache. Thereupon opposite
party No. 1 advised him to continue the same treatment as before
and added pain killer Tab. IbuOamor MX 2 times a day for two
days. He also gave him an injection Diclonac (3) cc. 11/M (intraMuscu/ar) to the patient. Subsequently, at about 10.30 p.m on the
night of 11th July, 1992, the complainant requested opposite party G
No. 1 to visit her residence to see her husband. Opposite party
No. 1 thereupon went there and examined late Mr. Verma. It was
found that he had again developed mild fever and was complaining
of pain in the shoulder. Opposite party No. 1 then prescribed for
him Tab. Vovaron 1 twice daily and Tab. Neopan plus Cap. H
A
B
c
D
E
F
G
H
680
SUPREME COURT REPORTS [1996J SUPP. 2 S.C.R.
Becosules 1 twice daily in addition to Quintor and Ibullamor
tablets which he was already taking. The Intra-Muscular injection
of Diclonac (3 cc.) was also given lo the patient. It is the definite
case of opposite party No. 1 lhal he once again advised Mr. Verma
to get pathology investigations done for blood count, E.S.R., urine
routine and vvidal test and told him to meet him with the investigation reports.
On the next date - 12th of July, 1992 at about I p.m. Mrs. Verma
came to the residence of opposite party No. 1 and requested him
to see Mr. Verma at their residence. Thereupon opposite party
No. 1 visited Mr. Verma at his home and examined him. On clinical
examination it was found that he had mild fever and that his blood
pressure was 90170 mm. of Hg. On the patient being asked about
the reports of the pathological investigations, opposite party No.
1 was informed that Mr. Verma had not got them done. Thereupon
opposite party No. 1 advised the complainant to get her husband
admitted lo some physician's nursing home of their choice for
examination, pathological investigations and further management.
It is the case of opposite party No. I that at that time, Mrs. Verma
herself mentioned the name of Dr. Warty (opposite party No. 2)
and suggested admission of the patient into his Sanjeevani nursing
home saying that she knew Dr. Warty quite well because she had
earlier been admitted for her delivery in Dr. (Mrs.) Warty's Maternity Home. Opposite party No. I agreed to the said suggestion and
gave a medical note setting out the treatment that he had so far
been administering to the patient for being shown to Dr. Warty.
The complainant's allegation that opposite party No. 1 had
prescribed strong antibiotics vvithout conducting any pathological
investigations is strongly refuted by opposite party No. 1 as incorrect and untrue. He submitted that on the contrary he had specifically advised the deceased Mr. Pramod V crma as early as on 6th
July, 1992 to undergo pathological tests and on finding that the
tests had not been got done till then this advise was reiterated on
the night of 11th July, 1992. But, for reasons best known to himself,
Mr. Verma ignored the said suggestion and did not get the investigations done. When it was found in the after noon of 12th July
1992 that the patient was not cooperating in getting the investigations done, opposite party No. 1 advised the complainant to get
•
P. VERMA v. A. PATEL(S. SAGH!RAHMAD,J.]
681
her husband admitted to some physician's nursing home for A
pathological investigation and further management as it was felt
by opposite party No. 1 that it would not be prudent or correct to
proceed with the treatment of the patient without getting the
requisite pathological investigation done.
Opposite party No. 1 has submitted that the treatment administered by him to late Pramod Verma was correct in- every
respect and there \vas no negligence, carelessness or deficiency of
any kind on his part in relation to the said treatment given to the
deceased Shri Verma during the period 4th July, 1992 to 12th July,
1992."
B
c
Respondent No. 1 was examined on oath by the Commission, which
was keen to know his qualifications and experience in Allopathic System
of Medicine. His statement was recorded in question-answer form and the
relevant questions and answers given by Respondent No. 1 are set out
below:
D
Mr. Raju Ramachandran,
Advocate for the opposite
Party No. 1:
Hon'ble President :
A.
Hon'ble Pr.
Dr. Patel, can you briefly describe
your educational qualification, the E
number of years you have put in
practice, your age ?
I passed· may OHMS degree i.e.
Diploma
in
Homoeopathic
Medicines and Surgery in 1983 and F
thereafter I joined in Bombay one
Private Nursing Home.
This OHMS is conducted by ?
G
This OHMS is conducted by Gujarat
Homeopathic Medical Council and
from 1983 to 1989 I was working as
a Chief Medical Officer there.
Where?
H
682
A
B
c
D
E
F
G
H
SUPREME COUR1 REPORTS [ 1996] SUPP. 2 S.C.R.
A.
Hon'ble Pr.
A.
Mr. Y. Krishnan
A.
Hon'ble Pr.
A.
Hon'ble Pr.
A.
Hon'blc Pr.
A.
Hon'ble Pr.
A.
Hon'ble Pr.
A.
In Patel Surgical Nursing Home at
Bombay.
That is your own.
No that is another Patel. He himself
is a Surgeon.
Is he an Allopathic Surgeon.
Yes, he is an Allopathic Surgeon.
U pto 1989 I was there, then I started
my private practice and opened my
clinic in 1989 and another clinic I
opened in 1991.
Do you practice allopathy or
homoeopathy ?
Both, I am practising.
Are you registered as Allopathic
Prac.:titioner ?
am
registered
with
the
Homoeopathic Council.
How are you entitled to practice allopathy?
k and when required in emergency
cases.
Are you permittt:d in the Medical
Council's Rules to practice allopathy?
In Gujarat it is allowed.
Are you allowed in Maharashtra ?
I have not gone through.
;
-f
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
P. VERMA v. A. PATEL [S. SAGHJR AHMi\D, J.J
683
Your sige also for the record.
A
l am right now running 35.
Dr. Patel, in the course of your
Homeopathic Studies were you also
gi\'cn instructions in Allopatbic B
medicines.
Yes.
•.
For ho\V many years is the
Homeopathic course.
C
Four years.
And your instructions in Allopathic
medicines \vas for how long ?
That is upto second year \Vhcn \VC
got the subject of Anatomy.
When \Vere you \Vorking in Patel
Surgical Nursing home, you have
started your career? Did you handle
Allopathic cases '! Did you prescribe
allopathic medicines.
Yes, in the absence of Dr. Patel, I
have to manage all the emergency
cases including n1cdicines.
The decision whether to give Allopathic medicine or Homeopathic
medicine is taken by you or at the
D
E
F
patient's request.
G
No, I \Vas taking the decision.
11
10. The counter-affidavit and the statement of Respondent No. 1
recorded by the Commission are self-contradictory. While in the counteraffidavit, he stated 'o have studied an integrated course in Allopathic and H
A
B
c
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
I-1omocopathic Syslt:m of Medicine, in his state1nent on oath, he categorically slated that he had studied Homoeopathy only and instructions in
Allopathic n1edicincs \Vere given only in the second year \Vhcn he \Vas
studying Anatomy. Usually, Pharmacology is taught to students after they
have learned Physiology and Anatomy. D.H.M.S. Diploma awarded to
Respondent No. J though indicates that he had studied Anatomy, Physiology, Pathology Forensic Medicine, Surgery, Practice of Ylcdicine, Hygiene,
f\..1id\vifery and CJynaccology, does not mention Pharn1acology relating to
Allopathie System of Medicine to have been taught lo him. He appears to
have gained so1ne experience (if at all it can be said to be experience) \vhile
he worked as
~1edical ()fi'i.cer in the private nursing home \Vere he
prescribed Allopathic \1edicines also. It is admitted bv him that he was not
registered as a Medical Practitioner in Allopathy under the relevant
slalutory provisions applicable to the Stale of Maharashtra lo which a
detailed reference shall be presently made.
D
11. It will be seen that Respondent No. I had all along treated
Pramod Verma under Allopathic System prescribing Allopathic Medicines,
though he hin1si.!lf \Vas registered as Medical PracLitioner \Vith the Gujarat
Homoeopathic Medical Council as he had studied Homoeopathy fur 4
years in the Medical College at Anand and had, thereafter, obtained a
Diploma in Homoeopathic Medicine and Surgery. If, t'1crefore, he had not
E studied Allopalhy and had m>t pursued the prescribed course in Allopalhy
nor had he obtained any degree or diploma in Allopathy from any recognised Medical College, could he prescribe and administer allopathic
n1cdicine.s, is the question \Vhich is to be ans\verc<l in this appeal \vith the
connected question \Vhethcr this \vill an1ount to actionable negligence.
F
12. The decision of this Court in !11dia11 Medical Association v. B.P.
Slumtha, [ 1995] 6 SCC 651, has settled the dispute regarding applicability
of the Act to persons engaged in medical profession either as private
practitioners or as Govcrn1ncnt Doctors \Vorking in Hospitals or Go\t.
D~spensaries. It is also settled that a patient who is a
11consumcr
11 \vithin the
G meaning of the Act has to be awarded compensation for loss or injury
suffered by him due to negligence of the Doctor by applying the same tests
as are applied in an action for damages for negligence.
13. Negligence as a tort is the breach of a duty caused by omission
H to do something which a reasonable man would do or doing something
'
'
P. VERMA v. A. PATEL IS. SAGHJRAJIMAD, J.]
685
which a prudent and reasonable man would not do. (See : Blyth v. Binningham Watelll'm*s Co., (1856) 11 Ex 781; B1idges v. Directors, Etc, of N.L.
Ry., (1873- 74) LR 7 HR 213; Govemor-Gcneral in Council v. Mt. Salima11,
(1948) !LR 27 Pat. 207; Winfield a11d Jolowicz on Tmt).
14. The definition involves the following constituents :
(1) a legal duty to exercise due care;
(2) breach of the duty; and
(3) consequential damages.
15. The breach of duty may be occasioned either by not doing
something which a reasonable man, under a given set of circumstances
would do, or, by doing some act which a reasonable prudent man would
not do.
A
B
c
16. So far as persons engaged in Medical Profession are concerned, D
it may be stated that every person ,vho enters into the profession, undertakes to bring to the exercise of it, a reasonable degree of care and skill.
It is true that Doctor or a Surgeon does not undertake that he will positively
cure a patient nor does he undertake lo use the highest possible degree of
skill, as there may be persons more learned and skilled than himself, but
he definitely undertakes to use a fair, reasonable and competent degree of
skill. This implied undertaking constitutes the real test, which will also be
clear from a study and analysis of the judgment in Bo/am v. F1iem Hospital
Management Committee., [1957] 2 All ER 118, in which, McNair, J., while
addressing the jury summed up the law as under :
"The test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the
highest expert skill; it is well established law that it is sufficient if
E
F
he exercises the ·ordinary skill of an ordinary competent man
exercising that particular art. In the case of a medical man, G
negligence means failure to act in accordance \vith the standards
of reasonably competent medical men at the time. There may be
one or more perfectly proper standards, and if he conforms with
one of these proper st.andardsi then he is not negligent.
11
17. This decision has since been approved by the House of Lords in H
686
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.
A Whitehouse v. Jordon, [1981] l All ER 267 (HL); Maynard v. West Midlands
Regional Health Authority,[1985] l All ER 635 (HL); Sidaway v. Bath/em
Royal Hospital, [ 1985] l All ER 643 (HL); Chin Keo v. Govt. of Malayasia,
[1967J l WLR 813 (PC).
18. The test pointed out by McNair, .J. covers the liability of a Doctor
B
in respect of his <liagnosi~, hi~ liability to warn the patients of the risk
inherent in the treatment and his liability in respect of the treatment.
19. This Court in Dr. Laxman Balak1ishna Joshi v. Dr. Tlimbak Bapu
Godbule & Anr., AIR (1969) SC 128, laid down that a Doctor when
C consulted by a patient owes him certain duties, namely, (a) a duty of care
in deciding whether to undertake the case; (b) a duty of care in deciding
what treatment to give; and (c) a duty of care in the administration of that
treatment. A breach of any of these duties gives a cause of action for
negligence to the patient.
D
20. The principles were reiterated in A.S. Mittal v. State of U.P., AIR
(1989) SC 15711, in which wide extracts from that judgment were made and
approved.
21. It is in the light of the above principles that it is to be seen now
whether there was a breach of duty of care on the part of Respondent No.
E 1 in the process of treatment of Pramod Verma.
'
F
22. Respondent No. 1, at the relevant time, was practicing at Bombay
and admittedly he was also registered under the Bombay Homoeopathic'
Practitioners Act, 1959, in which, 'Homoeopathy' has been defined under
Section 2(8) as under ;
"Homoeopathy means the Homoeopathic System of Medicine and
includes the use of Biochemic remedies."
23. 'Practitioner' has been defined in Section 2(12) while 'Registered
G Practitioner' is defined in Section 2(16). 'Recognised Medical
Qualification', according to Section {14A) means any of the medical
qt•.alifications in Homoeopathy, included in the Second or Third Schedule
to the Homoeopathy Central Council Act, 1973.
24. Registration or Practitioners is dealt with in Chapter IV of the
H Act. Section 20 provides that the Registrar shall prepare and maintain a
P. VERMA v. A. PATEL[S. SAGHIRAHMAD,J.]
687
register of Homoeopathic Practitioners for the State of Maharashtra in A
accordance with the provisions of the Act. The particulars which are
required to be entered in this register and the persons possessing requisite
qualifications, whose names would be entered therein, are indicated in
other Sub-sections of this Section.
25. Sub-section 12( a) of Section 20 provides as under :
"Every registered practitioner shall be given a certificate of
registration in the form prescribed by rule and shall practice
Homoeopathy only. The registered practitioner shall display the
certificate of registration in a conspicuous place in his dispensary,
clinic or place of practice."
26. On registration, a person gets the right to practice. This Section
also provides that it shall be lawful for such person to use, after his name,
the words "Registered Homoeopathic Practitioner" in full to indicate that
his name has been entered in the register under the Act.
27. Under Section 23, the Maharashtra Council of Homoeopathy has
been given the power to remove the name of any registered practitioner if
he is found guilty of any misconduct. Explanation appended to Section
23(1) defines misconduct, inter a/ia, as any conduct which is infamous in
relation to the profession.
28. The rights of Registered Practitioners are indicated in Section 28
which is quoted below :
B
c
D
E
"28. Notwithstanding anything in any law for the time being in
F
force-
(i) the expression "legally qualified medical practitioner" or "duly
qualified medical practitioner
11 or any word importing a person
recognised by law as a medical practitioner or member of the
medical profession shall, in all Acts of the Legislature in the Stale G
of Maharashtra and in all Central Acts (in their application to the
State of Maharashtra) in so far as such Acts relate lo any matters
specified in List II or List Ill in the Seventh Schedule to the
Constitution of India, include a practitioner whose name is entered
in the register under this Act;
H
A
B
c
D
688
SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.
(ii) a certificate required by any Act from any medical practitioner
or medical officer shall be valid if such certificate has been signed
by a practitioner whose name is entered in the register under this
Act;
(iii) a practitioner whose name is entered in the register shall be
eligible to hold any appoitment as physician or other medical
officer in any Homoeopathic dispensary, hospital or infirmary
supported by or receiving a grant from the State Government and
treating patients according to the Homoeopathic system of
medicine or in any public establishment, body or institution dealing
with such system of medicine;
(iv) every registered practitioner shall be exempt, if he so desires,
from serving on an inquest under the Code or Criminal Procedure,
1973."
29. The scheme of the Act, therefore, indicates that a person gels the
right to practice in Homoeopathy on being registered as a Medical Practitioner. The certificate of registration issued to such practitioner requires
him to practice in HOMOEOPATHY ONLY as is clear from the words
"AND SHALL PRACTICE HOMOEOPATHY ONLY" used in Sub-secE tion 12(a) of Section 20. Apart from the right to pcactice, other rights which
become immediately available to a person on registration of his name are
indicated in Section 28 which, inter alia, includes right to treat patients
according to the Homoeopathic System of Medicine.
F
30. Right to practice in Allopalhic System of Medicine as also the
right lo practice in Ayurvedic or Unani System of Medicine is regulated
by separate independent Central and local Acts. India Medical Council
Act, 1956 deals, inter alia, with the registration of persons possessing
requisite qualifications as Medical Practitioner in Allopathic System as also
recognition of Medical Qualifications and Examinations by Universities of
G Mt<lical Institutions in India.
Section 15 of this Act provides that any person possessing any of the
qualifications mentioned in the Schedule appended to the Act, may apply
for the registration of his name. Sub-sections 2 and 3 of Section 15, which
H
are extremely relevant, are quoted below :
P.VERMA v.A.PATEL[S.SAGHIRAf!MAD,J.]
689
"15(2) Save as provided in section 25, no person other than a A
medical practitioner enrolled on a State Medical Register ---
(a) shall hold office as physician or surgeon or any other office (by
whatever designation called) in Government or in any institution
maintained by a local or other authority;
(b) shall practice medicine in any State;
( c) shall be entitled to sign or authenticate a medical or fitness
certificate or any other certificate required by any law to be signed
by or authenticated by a duly qualified medical practitioner;
(d) shall be entitled to give evidence at any inquest or in any court
.of law as an expert under section 45 of Indian Evidence Act,.1872
on any matter relating to medicine.
B
c
(3) Any person who· acts in contravention of any provision of
sub-section (2) shall be punished with imprisonment for a term D
which may extend to one year, or with fine which may extent to
one thousand rupees, or \Vith both.
11
31. The impact of the above provisions is that no person can practice
medicine in any Stale unless he possesses the requisite qualification and is
enrolled as a Medical Practitioner on State Medical Register. The consequences for the breach of these provisions are indicated in Sub-section 3.
If a person practices medicine without possessing either the requisite
qualification or enrollment under the Act on any State Medical Register,
he becomes liable to be punished with imprisonment or fine or both.
32. Apart from the Central Act mentioned above, there is the
Maharashtra Medical Council Act, 1965 dealing with the registration of
Medical Practitioners and recognition of qualification and medical institutions. Section 2 (d) defines 'Medical Practitioner' or 'Practitioner' as under:
E
F
11Medical Practitioner or Practitioner means a person \Vho is G
engaged in the practice of modern scientific medicine in any of its
branches including surgery and obstetrics, but not including veten"-
na1y nzcdicine or surge1y or the Ayiuvedic, Unani, Hopioeopatlzic or
Bioche1nic syste111 of n1edicine.
11
(emphasis supplied) H
A
B
690
SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.
33. It will be seen that the definition consists of two distinct parts;
the first part contains the conclusive nature of phraseology and the latter
part is the exclusionary part which specifically excludes Homoeopathic or
Biochemic System of Medicine. A register of Medical Practitioners is to
be maintained in terms of the mandate contained in Section 16(1) of the
Act.