RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL LTD. AND ORS

Citation: [2009] 14 S.C.R. 424

Court: Supreme Court of India

Bench: G.S. SINGHVI, H.L. DATTU

Case summary

RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL LTD. AND ORS.pdf

Judgment text

[2009] 14 (ADDL. ) S. C. R. 424 RAMESH CHANDRA AGRAWAL ),/' v. REGENCY HOSPITAL LTD. AND ORS. (Civil Appeal No. 5991 of 2002) SEPTEMBER 11, 2009 8 [G. S. SINGHVI AND H. L. DATTU, JJ. ] Consumer Protection Act, 1986 - Medical negligence - Appellant diagnosed with T. B. infection - Operated upon - )..

Multiple operations - Operations unsuccessful - Appellant filed complaint before National Commission; sought compensation - Complaint dismissed - On appeal, held: Appellant had filed all records of treatment before the Commission - Registry of the Commission, due to oversight, did not send original records and X-Ray films to the expert '/I A neurologist who had been requested to offer his opinion on >the surgery done on appellant- Due to non-availability of vital aryd important information, the expert neurologist was handicapped in giving his opinion - Appellant should not suffer for the negligence of the Registry and also when the Commission itself stated in its judgment that supply of material to the expert neurologist could have enabled him to give a more complete report - Principles of Natural Justice ~require that a fair opportunity should be given to the complainant to prove his claim based on report of the expert - Since that opportunity was denied to appellant, order passed by the Commission cannot be sustained - Registrar of the - Commission directed to forward all records of treatment filed by appellant before the Commission to the expert concerned, for his expert opinion - Commission to pass fresh order after receipt of expert opinion - Evidence Act, 1872- s.

45. Appellant was diagnosed to be suffering from T. B. Infection in respondent no. 1 hospital whereupon respondent no. 2 doctor operated upon him. However, the l LTD. AND ORS. problem got aggravated on which another operation was .. _A performed upon the appellant, this time by respondent no. 3. Even after the second operation, the infection was not cured and appellant was referred to another hospital whereat another operation was performed on the appellant which provided some relief to him but left him handicapped. The appellant filed complaint before the National - Consumer Commission alleging medical negligence on -. ii the part of respondents 1 to 3 and sought compensation. The National Commission came to the conclusion that medical negligence was not proved against the respondents and dismissed the complaint.

In appeal to this Court, the appellant contended that ~ \> due to non-compliance of the order of National ~ Commission by the Registry of National Commission, the Commission did not have the benefit of expert opinion (of neurologist) to arrive at a conclusion, as to whether there was any negligence of the doctors who treated the appellant. The appellant contended that pursuant to an interim order passed by the Commission, the appellant had submitted all the records relating to his treatment and . ·~ had requested the Registry of the Commission to forward the same to the expert neurologist, who had been requested to offer his opinion on the surgery done on the appellant; however, the Registry did not send the documents furnished by the appellant to the expert and, therefore, the expert could not offer his opinion and thereby, the appellant was denied the benefit of having an opinion which would have proved his case before the Commission. Allowing the appeal, the Court HELD: 1. 1.

Since ·medical science is complicated, / ......... expert opinion provides deep insight. The law of evidence . ;. A is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. There is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. In order to bring . the evidence of a witness as that of an expert it has to be "'-shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. [Paras 10, 11 and 13] [433-E-F; 433-H; 434-A-B- C; 435-G] ~ 1. 2. An expert is not a witness of fact and his ~ +evidence is really of an advisory character.

The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as tv enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and +-.. tested becomes a factor and often an important factor for consideration along with other evidence of the case. [Para 15] [436-B-D] 1. 3. In the present case, the appellant had filed all records of the treatment before the Commission. The Assistant Registrar of the Commission, due to oversight, did not send the original records and X-Ray films to the expert. Thus, it was the Assistant Registrar of the Commission who had failed to perform the duty diligently. Due to the non-availability of vital and important, information, the expert neurologist was handicapped in giving his opinion on the bash~ of which the order of the LTD. AND ORS.

Commission was to be passed. It is very much clear from the report of the expert that he would have been in a better position if certain documents would have been made available to him. The appellant had also filed an application before the Commission, bringing to the notice of the Commission the lack of care shown by the Assistant Registrar, who had failed to forward the records of the treatment to the expert, and had requested to send the records for reconsideration. This application wa~ rejected by the Commission holding that th~ reconsideration of the expert opinion at that stage was not necessary. [Para 24] [439-C-F] 1. 4. The Commission while rendering its judgment failed to appreciate that in such cases expert would nQt . , be in a position to form a true opinion if all the documents pertaining to the matter, on which the opinion is desired, are made available to him.

The Commission on the application made by the appellant should have again directed for the expert opinion after making all the records of the treatment available to the expert. Th~e appellant should not suffer for the negligence of the Assistant Registrar and also when the Commission has itself stated in its judgment that supply of material to the expert neurologist could have enabled him to give a more complete report. [Para 25] [439-G-H; 440-A] 1. 5. The principles of Natural Justice require that a fair opportunity should be given to the complainant to prove his claim based on the report of the expert. Since that opportunity was denied to the appellant, the impugned order passed by National Commission cannQt be sustained. The Registrar of the Commission is directed to forward all the records of the treatment filed by the appellant before the Commission to the expert concerned, for his expert opinion.

After receipt of the expert opinion, the Commission is requested to pas~ fresh order in accordance with law. [Paras 26 and 27) ~,, , [440-C-D; 440-E-F] State of H. P. v. Jai Lal and Ors, (1999) 7 sec 280 and Malay Kumar Gangu/y v. Dr. Sukumar Mukherjee and Others, (2009) 13 Addi. SCR 1, relied on. 8 State of Maharashtra v. Damu slo Gopinath Shinde and others AIR 2000 SC 1691 and The State (Delhi Administration) v. Pali Ram AIR 1979 SC 14, referred to. )- Titli v. Jones AIR 1934 All 237, referred to. Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed. , Cambridge University Press, p. 178, referred to. ,. Case Law Reference: (1999) 1 sec 280 referred to Para 13 AIR 1934 All 237 referred to Para 14 (2009) 13 Addi. SCR 1 referred to Para 15 AIR 2000 SC 1691 referred to Para 16 '-" +- AIR 1979 SC 14 referred to Para 16 CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 5991 of 2002. ,. I From the Judgment & Order dated 23. 5.

2002 of the National Consumer Disputes Redressal Commission, New Delhi in Original Petition N9. 128 of 1996. Anil Mittal, Vibhuti Sushant, Dr. Kailash Chand for the Appellant. lndu Malhotra, Kush Chaturvedi, Vikas Mehta, Sharmila Upadhyay, R. K. Tripathi, John L. Joedl for the Respondents. LTD. AND ORS. ... _,\ The Judgment of the Court was delivered by H. L. DATTU, J. 1. This appeal is directed against the order passed by National Consumer Disputes Redressal Commission, New Delhi in Original Petition No. 128 of 1996 dated 23. 5. 2002. By the impugned order National Consumer Commission has rejected the petition filed by the complainant. 2. The facts in brief are as under: - -~ is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed.

The same is clear from following inference: "~ere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from -f . consideration as affording no assistance in arriving at the correct value. ,,. ll 18. Though we have adverted to the nature of disease and the relevancy of the expert opinion, we do not think it necessary to go into the merits of the case in view of the course we ,,. propose to adopt, and in vi~w of the fact that the Commission -j is the last fact finding authority in the scheme of the Act. 0 19. The Commission by its order. dated 6. 3. 2000 had requested Dr. A. K. Singh, Neurologist, to give his opinion on the surgery done in this case. It was also ordered that all the records of the surgery will be submitted by tbe complainant to the Registrar of the Commission to enable him to forward it to Dr. A. K.

Singh, along with the complaint and also the affidavits .... J filed on behalf of the respondents. Dr. A. K. Singh will make himself familiar with the complaint and the records and then give his opinion. 20. The Assistant Registrar by his letter dated 12. 6. 2000, forwarded the original records of the present case to Dr. A. K. Singh. On 19. 8. 2000, Dr. A. K. Singh submitted his report to the Assistant Registrar with the findings that: ~ "After careful scrutiny of the documents now made available to me, I find that the current situation as regards these vital and missing documentary evidences is as follows: (a) No original X-Ray films, of various radiological f-A examinations were enclosed either in original form or in the form of copies. .. (b) Nodetails of findings at surgery are provided. (c) No details of operative findings have been provided. Only the surgical procedure carried out has been mentioned.

(d) No details of any subsequent neurological/neuro- *-" radiological assessment have been provided. In view of the foregoing, I feel that no much additional . ,. information, over and above what had originally been I provided to me by Dr. Atul Sahai, has been . made available now for me to substantially revise my opinion " earlier. I, therefore, stand by my earlier opinion referred to ~ above. " 21. The appellant on 17. 9. 2001, again filed an application before the Commission for referring the matter to eminent doctor for his opinion. It was stated that the expert had at many places stated that ·he would have been in a better position to examine the matter if he was made available the X-Rays and -A. 'f , MRI reports etc. Inquiries from the office of Commission revealed that the office of the Commission, by mistake, forgot to forward the original record to Dr. A. K. Singh and as a result thereof, Dr. A. K.

Singh was deprived of the opportunity of perusing the same before submitting his opinion in the matter. In this way, the case of the appellant was severely prejudiced as without these records it was not possible for an expert to give definite and correct opinion in the matter. . 22. The Commission by its order dated 22. 11. 2001 -... j rejected the application of the appellant stating that Dr A. K. Singh had submitted his report as far back as on 19. 8. 2000 and it is not understandable as to why this application should have been filed at such a later stage. • -~ 23. The Commission in course of its judgment has observed "that in spite of opportunity being given, the complainant and his wife did not offer themselves for the cross examination and they have failed to supply material to Dr. K. Singh as mentioned in his report dated 19. 08. 2000, which could have enabled him to give a more complete report. Also no evidence of any expert was led by the appellant. For that ..

_ matter none of the parties filed any literature on the subject to support their contentions in spite of giving them an opportunity. " ~- 24. In the present case, the appellant had filed all the records of the treatment before the Commission. The Assistant Registrar, due to oversight, did not send the original records and X-Ray films to the e_xpert. Thus, it was the Assistant Registrar of the Commission who had failed to perform the duty . A diligently. Due to the non-availability of vital and important -f information, the expert was handicapped in giving his opinion . on the basis of which the order of the Commission was to be passed. It is very much clear from the report of Dr. AK. Singh dated 19. 8. 2000, that he would have been in a better position if certain documents would have been made available to him. The appellant had also filed an application before the Commission dated 17. 9. 2001, bringing to the notice of the ......

'"~- Commission the lack of care shown by the Assistant Registrar, who had failed to forward the records of the treatment to the expert, and had requested to send the records for. reconsideration. This application was rejected by the ~. Commission holding that. the reconsideration of the expert opinion at this stage is not necessary. 25. The Commission while rendering its judgment has failed to appreciate that in such cases expert would not be in a position to form a true opinion if all the documents pertaining to the matter, on which the opinion is desired, are made available to him. The Commission on the application made by the appellant should have again directed. for the expert opinion after making all the records of the treatment available to the ,_,... expert. The appellant should not suffer for the negligence of the Assistant Registrar and also when the Commission has itself stated in its judgment that supply of material to Dr. A K.

Singh could have enabled him to give a more complete report. 26. It is important to note that the appellant had brought to _B the notice of National Commission, the lack of care shown by the Assistant Registrar, who had failed to forward the records _, of the treatment to the expert, by filing an application before the + Commission dated 17. 9. 2001. This application was rejected by the Commission holding that the reconsideration of the expert opinion at this stage is not necessary. In our view, the principles of Natural Justice require that a fair opportunity should be given to the complainant to prove his claim based on the report of the·expert. Since that opportunity is denied to .. _... the appellant, the impugned order passed by National ~ Commission cannot be sustained. 27. In view of the above discussion, appeal raquires to be allowed and, accordingly, it is allowed. The impugned order is set aside.

The Registrai ui the Commission is directed to forward all the records of the treatment filed by the appellant before the Commission to Or. A K. Singh, Neurologist, who is -1 now working at Fortis Hospital, Naida, for his expert opinion ~ ·within one month from the date of receipt of this order, with a request to give his expert opinion on the basis of the records of the treatment and affidavits filed by both the parties within . ~ two months from the date the records are made available to him. After receipt of the expert opinion, the Commission is requested to pass fresh order in accordance with law. No order as to costs. B. B. B. Appeal allowed.