IMPORTANT POINT
Registration of complaint by Consumer Protection Forum.

ORDER

1. Delay condoned.

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 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, 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 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 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. Ishfaq (2009) 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 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 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.

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.

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. Ishfaq (supra) as per incuriam, on a misconception of the law laid down by a three-Judge Bench of this Court in Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 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 criminal prosecution, either on the basis of a criminal complaint or on the basis of an FIR. The conclusions recorded in 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 summed up by this Court as under:

xxx xxx xxx xxx xxx xxx xxx xxx

“(5) The jurisprudential concept of negligence differs in civil 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 higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may prov