Back
2009 Supreme(UK) 474
2010 (1) UAD 121
SUPREME COURT OF INDIA
Hon’ble Mr. Justice G.S. Singhvi and Hon’ble Mr. Justice H.L. Dattu
Civil Appeal No. 5991 of 2002
RAMESH CHANDRA AGRAWAL – Appellant
Versus
REGENCY HOSPITAL LTD. & ORS. – Respondents
Decided on : 11.09.2009
For the Respondents:Ms. Indu Malhotra, Sr. Adv., Mr. Kush Chaturvedi, Mr. Vikash Mehta, Ms. Sharmila Upadhyay, Mr. R.K. Tripathi, Mr. John L. Joedl, Advocates.
Headnote:(A) Indian Evidence Act, 1872, Sec. 45 — "Expert Opinion" — Admissibility — The law of evidence is designed to ensure that the court considers only that evidence, which will enable it to reach a reliable conclusion — Requirements for — The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence — Test is that the matter is outside the knowledge and experience of the lay person — Thus a need to hear an expert opinion is there, where there is a medical issue to be settled — The other requirements for the admissibility of expert evidence are : (i) that the expert must be within a recognized field of expertise — (ii) that the evidence msut be based on reliable principles, and — (iii) that the expert must be qualified in that discipline — Referred judgments relied. (Paras 11, 12, 13, 16, 17)
(B) Natural Justice — Principle of — Held — A fair opportunity should be given to the complainant to prove his claim based on the report of the expert — In case that opportunity is denied to the appellant — The impugned order passed, cannot be sustained.
(Para 26)
¼v½ Hkkjrh; lk{; vf/kfu;e] 1872] /kkjk 45 & ßfo'ks"kK dh jk;Þ dh mi;qDrrk & lk{; vf/kfu;e ;g lqfuf'pr djus gsrq cuk;k x;k gS fd U;k;ky; }kjk dsoy ek= mlh lk{; dks laKku esa fy;k tkuk gS tks bls ,d fo'oluh; ifj.kke ij igq¡pus ds fy, lg;ksx djs & bl ds okLrs ;g vko';d gS fd lcls iwoZ fdlh fo'ks"kK dk lk{; tks lqus tkus ;ksX; gks mls lquk tkuk pkfg, & bl dk ijh{k.k bl ckr ls gks lds fd ekeyk lk/kkj.k O;fDr ds vuqHko vkSj tkudkjh dh ifjf/k ls ckgj gks & bl izdkj fo'ks"kK dh jk; dks lqus tkus dh vko';drk ogk¡ vf/kd gS tgk¡ dksbZ fpfdRlh; ekeyk r; fd;k tkuk gks & vU; fo'ks"kK jk; dks lk{; ds :i esa ekus tkus ds okLrs ;g visf{kr gS fd (i) fo'ks"kK dks vius ekU;rk izkIr {ks= ls lEcfU/kr gksuk pkfg, (ii) lk{; fo'oluh; fl)kUrksa ij vk/kkfjr gks (iii) fo'ks"kK dks ml fo"k; dk izoh.k gksuk pkfg, & m)`r fu.kZ; ij vk/kkfjrA ¼izLrj 11] 12] 13] 16] 17½
¼c½ uSlfxZd U;k; dk fl)kUr & f'kdk;rdrkZ dks ,d LoPN volj vius nkos dks fo'ks"kK dh fjiksVZ ds vk/kkj ij fl) djus gsrq fn;k tkuk pkfg, & ml n'kk esa tgk¡ vihykFkhZ dks og volj u fn;k x;k gks rks iz'uxr vkns'k tks ikfjr fd;k x;k gks dk;e ugha jg ldrkA ¼izLrj 26½
H.L. Dattu, J. — 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 :
The appellant/complainant was a teacher by profession. He was aged about 60 years when he was down with physical ailments such as backache and difficulty in walking as a result of progressive weakness of both his lower limbs. As the problem worsened, on 20.11.1995, the appellant approached Regency Hospital Ltd. (Respondent No. 1), for Medical check-up. On the same day, C.T. Scan was done and he was diagnosed as a patient of “Dorsol Cord Compression D4-D6 Pott’s spine” which in simple terms means that T.B. infection has spread till his vertebra. On the same day he was advised to get operated for decompression of spinal cord by Laminectomy D-3 to D-6. The operation was performed by Dr. Atul Sahay (Respondent No. 2) on 25.11.1995. It is asserted, that, after the operation, the condition of the appellant deteriorated further and it was revealed from the MRI scan that the operation was not successful as it was not done at the right level. It is also stated that the case summary and the MRI reports suggest that the problem was aggravated and there was need for another operation. Dr. I.N. Vajpayee (respondent no. 3) was consulted on 12.12.1995 and he performed the operation on the same day. Even after the second operation the infection was not cured and this forced him to refer his case to Vidya Sagar Institute of Mental Health and Neurological Sciences, New Delhi (VIMHANS) for further treatment. It is further stated, that, the third operation was performed and it provided the appellant some relief, but left him handicapped due to his legs being rendered useless and loss of control over his Bladder movement.
3. COMPLAINT BEFORE THE NATIONAL COMMISSION : The appellant, being impaired by the treatment, filed a complaint before the National Consumer Disputed Redressal Commission (hereinafter referred as “National Commission”) alleging medical negligence on the part of respondents 1 to 3.
The claim of the appellant before the National Commission was as under :-
(i) That the correct method of operating his infection was the Antero-Lateral Decompression (ALD) and not Laminectomy.
(ii) That the complainant/appellant contends that he was kept only for one week on the Anti-Tubercular drugs before the surgery which is a much shorter duration than the accepted medical practice.
(iii) That there was no requirement of immediate surgery.
(iv) That the respondent no. 2, who was a Neurosurgeon did not consult the Orthopedic surgeon, even though he was not capable to handle the case of complainant/appellant without consulting Orthopedic surgeon.
Hence, it was claimed that there is gross negligence and carelessness on the part of the respondents in treating the complainant/appellant, and therefore, respondents be directed to pay a sum of Rs. 22,00,000/- with interest at the rate of 24% per annum to the complainant.
4. NATIONAL COMMISSION JUDGMENT : After considering the case presented by the appellant and the respondents and looking through the affidavits filed by the parties, the National Commission has come to the conclusion that medical negligence is not proved against the respondents. The Commission has concluded :
“Medical negligence is when a doctor did something which he ought not to have done or did not do what he ought to have done. The doctors were qualified professionals. They did whatever was required to be done of Neuro-Surgeons. In fact, we find the complainant’s deficient, who neither appeared for cross examination nor produced any literature in support of this case to be of any assistance to this Commission.
5. Feeling aggrieved by the decision, the appellant has filed this appeal under Section 23 of the Consum
