Requirement of expert evidence
Supreme Court said in V. Kishan Rao Versus Nikhil Super Speciality Hospital and Another
About the requirement of expert evidence, this Court made it clear in Indian Medical Association (supra) that before the Forum under the Act both simple and complicated cases may come. In complicated cases which require recording of evidence of expert, the complainant may be asked to approach the civil court for appropriate relief. This Court opined that Section 3 of the Act (Consumer Act) provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus the Act preserves the right of the consumer to approach the civil court in complicated cases of medical negligence for necessary relief. But this Court held that cases in which complicated questions do not arise the Forum can give redressal to an aggrieved consumer on the basis of a summary trial on affidavits. The relevant observations of this Court are:
…There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning [as in Chin Keow v. Govt. of Malaysia 1967 (1) WLR 813] or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief….
A careful reading of the aforesaid principles laid down by this Court in Indian Medical Association (supra) makes the following position clear:
(a) There may be simple cases of medical negligence where expert evidence is not required.
(b) Those cases should be decided by the Forum under the said Act on the basis of the procedure which has been prescribed under the said Act.
(c) In complicated cases where expert evidence is required the parties have a right to go to the Civil Court.
(d) That right of the parties to go to Civil Court is preserved under Section 3 of the Act.
The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi reported in, (2002) 6 SCC 635.
The three Judge Bench in Dr. J.J. Merchant (supra) accepted the position that it has to be left to the discretion of Commission “to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly.” [para 19, page 645 of the report]
It is, therefore, clear that the larger Bench in Dr. J.J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in D’Souza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J.J. Merchant (supra).
In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Forum feels it is required the direction in paragraph 106, quoted above in D’souza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is a direction which is contrary to the principles laid down by larger Bench of this Court on this point. In D’souza (supra) the earlier larger Bench decision in Dr. J.J. Merchant (supra) has not been noticed.
Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D’souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.
Those directions are also contrary to the avowed purposes of the Act. In this connection we must remember that the Act was brought about in the background of worldwide movement for consumer protection. The Secretary General, United Nations submitted draft guidelines for consumer protection to the Economic and Social Council in 1983. Thereupon on an extensive discussions and negotiations among various countries on the scope and content of such impending legislation certain guidelines were arrived at. Those guidelines are:
Taking into account the interests and needs of consumers in all countries, particularly those in developing countries, recognizing that consumers often face imbalances in economic terms, educational level and bargaining power, and bearing in mind that consumer should have the right of access to non-hazardous products, as well as importance of promoting just, equitable and sustainable economic and social development, these guidelines for consumer protection have the following objectives:
To assist countries in achieving or maintaining adequate protection for their population as consumers.
To facilitate production and distribution patterns responsive to the needs and desires of consumers.
To encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers.
To assist countries in curbing abusive business practices by all enterprises at the national and international levels which adversely affect consumers.
To facilitate the development of independent consumer groups.
To further international cooperation in the field of consumer protection.
To encourage the development of market conditions which provide consumers with greater choice at lower prices.
A three-Judge Bench of this Court in State of Karnataka v. Vishwabharathi House Building Coop. Society and Ors., (2003) 2 SCC 412, referred to those guidelines in paragraph 6. This Court further noted that the framework of the Act was provided by a resolution dated 9.4.1985 of the General Assembly of the United Nations Organization known as Consumer Protection Resolution No. 39/248, to which India was a signatory[ Para 40]
After treating the genesis and history of the Act, this Court held that that it seeks to provide for greater protection of the interest of the consumers by providing a Forum for quick and speedy disposal of the grievances of the consumers. These aspect of the matter was also considered and highlighted by this Court in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243, in Charan Singh v. Healing Touch Hospital, (2000) 7 SCC 668 as also in the case of Spring Meadows Hospital v. Harjol Ahluwalia, (1998) 4 SCC 39 and in the case of India Photographic Co. Ltd. v. H.D. Shourie, (1999) 6 SCC 428.
It is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case. If that is done the efficacy of remedy under the Act will be substantially curtailed and in many cases the remedy will become illusory to the common man.
Refer: V. Kishan Rao Versus Nikhil Super Speciality Hospital and Another [JT 2010 (4) SC 630 : (2010) 4 SCALE 662 : (2010) 5 SCC 513]
Categories: Consumer Law