REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2641_ OF 2010
(Arising out of SLP(C) No.15084/2009)
V. Kishan Rao ..Appellant(s)
Versus
Nikhil Super Speciality Hospital ..Respondent(s)
& Another
J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal has been filed challenging the judgment
and order dated 19.02.2009 of the National Consumer
Disputes Redressal Commission, New Delhi
(hereinafter, `National Commission') which upheld the
finding of the State Consumer Forum. The order of the
National Commission runs as follows:
1
"Heard. The State Commission after
elaborate discussion has come to the
conclusion that there was no negligence
on the part of the respondent doctor. All
possible care was taken by the respondent
in treating the petitioner. The State
Commission has also recorded a finding
that no expert opinion was produced by
the petitioner to prove that the line of
treatment adopted by the respondent
hospital was wrong or was due to
negligence of respondent doctor.
Dismissed".
3. The appellant, who happens to be the original
complainant, is an officer in the Malaria department
and he got his wife admitted in the Respondent No. 1
hospital on 20.07.02 as his wife was suffering from
fever which was intermittent in nature and was
complaining of chill.
4. In the complaint, the appellant further alleged that
his wife was subjected to certain tests by the
respondent No.1 but the test did not show that she
was suffering from malaria. It was also alleged that
his wife was not responding to the medicine given by
the opposite party No.1 and on 22nd July, 2002 while
she was kept admitted by respondent No.1. Saline was
given to her and the complainant had seen some
particles in the saline bottle. This was brought to
2
the notice of the authorities of the respondent No.1
but to no effect. Then on 23rd July 2002 complainant's
wife was complaining of respiratory trouble and the
complainant also brought it to the notice of the
authorities of the respondent No.1 who gave
artificial oxygen to the patient. According to the
complainant at that stage artificial oxygen was not
necessary but without ascertaining the actual
necessity of the patient, the same was given.
According to the complainant his wife was not
responding to the medicines and thus her condition
was deteriorating day by day. The patient was finally
shifted to Yashoda Hospital from the respondent No.1.
5. At the time of admission in Yashoda Hospital the
following conditions were noticed:
"INVESTIGATIONS
Smear for MP-Positive-ring forms &
Gametocytes of P. Falciparam seen
Positive index-2-3/100RBCS
LFT-TB-1.5
DB-1.0
IB-0.5
WIDAL test-Negative
HIV & HBsAG-Negative
PT-TEST-22 sec
CONTROL-13 sec
APTT-TEST-92 sec
CONTROL-38 sec
CBP-HB-3.8% gms
TLC-30.900/cumm
3
RBC-1.2/cumm
HRP II-Positive
B urea-38 mg/dl
S Creatinine-1.3 mb/dl
S Electrolytes-NA/K/CL-148/5.2/103 mEq/L
C X R - s/o ARDS
CASE DISCUSSION
45 yrs old of patient admitted in AMC
with H/o fever-8 days admitted 5 days
back in NIKHIL HOSPITAL & given INJ
MONOCEF, INJ CIFRAN, INJ CHOLROQUINE
because of dysnoea today suddenly shifted
to Y.S.S.H. for further management. Upon
arrival in AMC, patient unconscious, no
pulse, no BP, pupils dilated. Immediately
patient intubated & ambu bagging AMC &
connected to ventilator. Inj. Atropine,
inj. Adhenoline, inj. Sodabicarb given,
DC shock also given. Rhyth restored at
1.35 PM At 10.45 pm, patient developed
brady cardia & inspite of repeated
Altropine & Adhenolin. HR-`O' DC shock
given. External Cardiac massage given. In
spite of all the resuscitative measure
patient could not be revived & declared
dead at 11.30pm on 24.7.2002".
6. In the affidavit, which was filed by one Dr.
Venkateswar Rao who is a Medical Practitioner and the
Managing Director of the respondent No.1 before the
District Forum, it was admitted that patient was
removed from respondent No.1 to the Yashoda Hospital
being accompanied by the doctor of the respondent
No.1. From the particulars noted at the time of
admission of the patient in Yashoda Hospital it is
clear that the patient was sent to Yashoda Hospital
4
in a very precarious condition and was virtually,
clinically dead.
7. On the complaint of the appellant that his wife was
not given proper treatment and the respondent No.1
was negligent in treating the patient the District
Forum, on a detailed examination of the facts, came
to a finding that there was negligence on the part of
the respondent No.1 and as such the District Forum
ordered that the complainant is entitled for refund
of Rs.10,000/- and compensation of Rs.2 lakhs and
also entitled to costs of Rs.2,000/-.
8. The District Forum relied on the evidence of Dr.
Venkateswar Rao who was examined on behalf of the
respondent No.1. Dr. Rao categorically deposed "I
have not treated the case for malaria fever". The
District Forum found that the same is a clear
admission on the part of the respondent No.1 that the
patient was not treated for malaria. But the death
certificate given by the Yashoda Hospital disclosed
that the patient died due to "cardio respiratory
arrest and malaria". In view of the aforesaid finding
the District Forum came to the conclusion that the
5
patient was subjected to wrong treatment and awarded
compensation of Rs.2 lakhs and other directions as
mentioned above in favour of the appellant. The
District Forum also noted when the patient was
admitted in a very critical condition in Yoshoda
Hospital the copy of the Haematology report dated
24.7.2002 disclosed blood smear for malaria parasite
whereas Widal test showed negative. The District
Forum also noted that the case sheet also does not
show that any treatment was given for Malaria. The
Forum also noted that the respondent-authorities,
despite the order of the Forum to file the case
sheet, delayed its filing and there were over
writings on the case sheet. Under these circumstances
the District Forum noted that case records go to show
that wrong treatment for Typhoid was given to the
complainant's wife. As a result of such treatment the
condition of the complainant's wife became serious
and in a very precarious condition she was shifted to
Yashoda Hospital where the record shows that the
patient suffered from malaria but was not treated for
malaria. Before the District Forum, on behalf of the
respondent No.1, it was argued that the complaint
sought to prove Yashoda Hospital record without
6
following the provisions of Sections 61, 64, 74 and
75 of Evidence Act. The Forum overruled the
objection, and in our view rightly, that complaints
before consumer are tried summarily and Evidence Act
in terms does not apply. This Court held in the case
of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and
others reported in (2009) 9 SCC 221 that provisions
of Evidence Act are not applicable and the Fora under
the Act are to follow principles of natural justice
(See paragraph 43, page 252 of the report).
9. Aggrieved by the order of the District Forum
respondent No. 1 preferred an appeal to the State
Consumer Disputes Redressal Commission (FA No. 89 of
2005) and the insurance company, which is respondent
no. 2 before this Court, preferred another appeal (FA
no. 1066 of 2005). The State Forum vide its order
dated 31.10.2008 allowed the appeals.
10. In doing so the State Commission relied on a decision
in Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No.
215/2000 dated 24.9.2002) wherein the National
Commission made some observations about the duties of
doctor towards his patient. From those observations
7
it is clear that one of the duties of the doctor
towards his patient is a duty of care in deciding
what treatment is to be given and also a duty to take
care in the administration of the treatment. A breach
of any of those duties may lead to an action for
negligence by the patient. The State Forum also
relied on a decision of this Court in Indian Medical
Association vs. V.P. Shantha & others - (1995) 6 SCC
651.
11. Relying on the aforesaid two decisions, the State
Forum found that in the facts and circumstances of
the case, the complainant failed to establish any
negligence on the part of the hospital authorities
and the findings of the District Forum were
overturned by the State Commission. In the order of
the State Commission there is a casual reference to
the effect that "there is also no expert opinion to
state that the line of treatment adopted by the
appellant/opposite party No.1 Hospital is wrong or is
negligent".
12. In this case the State Forum has not held that
complicated issues relating to medical treatment have
8
been raised. It is not a case of complicated surgery
or a case of transplant of limbs and organs in human
body. It is a case of wrong treatment in as much as
the patient was not treated for malaria when the
complaint is of intermittent fever and chill. Instead
the respondent No.1 treated the patient for Typhoid
and as a result of which the condition of the patient
deteriorated. When the condition became very very
critical the patient was removed to Yashoda Hospital
but patient could not be revived.
13. In the opinion of this Court, before forming an
opinion that expert evidence is necessary, the Fora
under the Act must come to a conclusion that the case
is complicated enough to require the opinion of an
expert or that the facts of the case are such that it
cannot be resolved by the members of the Fora without
the assistance of expert opinion. This Court makes it
clear that in these matters no mechanical approach
can be followed by these Fora. Each case has to be
judged on its own facts. If a decision is taken that
in all cases medical negligence has to be proved on
the basis of expert evidence, in that event the
efficacy of the remedy provided under this Act will
9
be unnecessarily burdened and in many cases such
remedy would be illusory.
14. In the instant case, RW-1 has admitted in his
evidence that the patient was not treated for
malaria. Of course evidence shows that of the
several injections given to the patient, only one was
of Lariago. Apart from Lariago, several other
injections were also administered on the patient.
Lariago may be one injection for treating malaria
but the finding of Yashoda Hospital which has been
extracted above shows that smear for malarial
parasite was positive. There is thus a definite
indication of malaria, but so far as Widal test was
conducted for Typhoid it was found negative. Even in
such a situation the patient was treated for Typhoid
and not for malaria and when the condition of the
patient worsened critically, she was sent to Yashoda
Hospital in a very critical condition with no pulse,
no BP and in an unconscious state with pupils
dilated. As a result of which the patient had to be
put on a ventilator.
10
15. We do not think that in this case, expert evidence
was necessary to prove medical negligence.
16. The test of medical negligence which was laid down in
Bolam vs. Friern Hospital Management Committee
reported in 1957 (2) All England Law Reports 118, has
been accepted by this Court as laying down correct
tests in cases of medical negligence.
17. Bolam was suffering from mental illness of the
depressive type and was advised by the Doctor
attached to the defendants' Hospital to undergo
electro-convulsive therapy. Prior to the treatment
Bolam signed a form of consent to the treatment but
was not warned of the risk of fracture involved. Even
though the risk was very small and on the first
occasion when the treatment was given Bolam did not
sustain any fracture but when the treatment was
repeated for the second time he sustained fractures.
No relaxant drugs or manual control were used except
that a male nurse stood on each side of the treatment
couch throughout the treatment. About this treatment
there were two bodies of opinion, one of which
favoured the use of relaxant drugs or manual control
11
as a general practice, and the other opinion was for
the use of drug that was attended by mortality risks
and confined the use of relaxant drugs only to cases
where there are particular reasons for their use and
Bolam case was not under that category. On these
facts the expert opinion of Dr. J.de Bastarrechea,
consultant psychiatrist attached to the Hospital was
taken. Ultimately the Court held the Doctors were not
negligent. In this context the following principles
have been laid down:
"A Doctor is not guilty of negligence if
he has acted in accordance with a
practice accepted as proper by a
responsible body of medical men skilled
in that particular art"...(See page 122
placitum `B' of the report)
18. It is also held that in the realm of diagnosis and
treatment there is ample scope for genuine difference
of opinion and a doctor is not negligent merely
because his conclusion differs from that of other
professional men. It was also made clear that the
true test for establishing negligence in diagnosis or
treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor
of ordinary skill would be guilty of if acting with
12
ordinary care (See page 122, placitum `A' of the
report).
19. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical
negligence, in the country of its origin, it is
questioned on various grounds. It has been found
that the inherent danger in Bolam test is that if the
Courts defer too readily to expert evidence medical
standards would obviously decline. Michael Jones in
his treaties on Medical Negligence (Sweet & Maxwell),
Fourth Edition, 2008 criticized the Bolam test as it
opts for the lowest common denominator. The learned
author noted that opinion was gaining ground in
England that Bolam test should be restricted to those
cases where an adverse result follows a course of
treatment which has been intentional and has been
shown to benefit other patients previously. This
should not be extended to certain types of medical
accident merely on the basis of how common they are.
It is felt "to do this would set us on the slippery
slope of excusing carelessness when it happens often
enough" (See Michael Jones on Medical Negligence
paragraph 3-039 at page 246).
13
20. With the coming into effect of Human Rights Act, 1988
from 2nd October, 2009 in England, the State's
obligations under the European Convention on Human
Rights (ECHR) are justiciable in the domestic courts
of England. Article 2 of the Human Rights Act 1998
reads as under:-
"Everyone's right to life shall be protected
by law. No one shall be deprived of his life
intentionally save in the execution of a
sentence of a court following his conviction
of a crime for which this penalty is provided
by law".
21. Even though Bolam test `has not been uprooted' it has
come under some criticism as has been noted in
Jackson & Powell on Professional Negligence (Sweet &
Maxwell), Fifth Edition, 2002. The learned authors
have noted (See paragraph 7-047 at page 200 in
Jackson & Powell) that there is an argument to the
effect that Bolam test is inconsistent with the right
to life unless the domestic courts construe that the
requirement to take reasonable care is equivalent
with the requirement of making adequate provision for
medical care. In the context of such jurisprudential
thinking in England, time has come for this Court
also to reconsider the parameters set down in Bolam
14
test as a guide to decide cases on medical negligence
and specially in view of Article 21 of our
Constitution which encompasses within its guarantee,
a right to medical treatment and medical care. In
England, Bolam test is now considered merely a `rule
of practice or of evidence. It is not a rule of law'
(See paragraph 1.60 in Clinical Negligence by Michael
Powers QC, Nigel Harris and Anthony Barton, 4th
Edition, Tottel Publishing). However as in the larger
Bench of this Court in Jacob Mathew vs. State of
Punjab and another - (2005) 6 SCC 1, Chief Justice
Lahoti has accepted Bolam test as correctly laying
down the standards for judging cases of medical
negligence, we follow the same and refuse to depart
from it.
22. The question of medical negligence came up before
this Court in a decision in Mathew (supra), in the
context of Section 304-A of Indian Penal Code.
23. Chief Justice Lahoti, speaking for the unanimous
three-Judge Bench in Mathew (supra), made a clear
distinction between degree of negligence in criminal
law and civil law where normally liability for
15
damages is fastened. His Lordship held that to
constitute negligence in criminal law the essential
ingredient of `mens rea' cannot be excluded and in
doing so, His Lordship relied in the speech of Lord
Diplock in R. vs. Lawrence, [(1981) 1 All ER 974].
The learned Chief Justice further opined that in
order to pronounce on criminal negligence it has to
be established that the rashness was of such a degree
as to amount to taking a hazard in which injury was
most likely imminent. The neat formulation by Lord
Atkin in Andrews v. Director of Public Prosecutions,
[(1937) 2 All ER 552 (HL) at page 556] wherein the
learned Law Lord delineated the concept of negligence
in civil and criminal law differently was accepted by
this Court.
24. Lord Atkin explained the shades of distinction
between the two very elegantly and which is excerpted
below:-
"Simple lack of care such as will constitute
civil liability is not enough. For purposes of
the criminal law there are degrees of
negligence, and a very high degree of
negligence is required to be proved before the
felony is established."
25. Chief Justice Lahoti also relied on the speech of
Lord Porter in Riddell vs. Reid [(1943) AC 1 (HL)] to
16
further identify the difference between the two
concepts and which I quote:-
"A higher degree of negligence has always been
demanded in order to establish a criminal
offence than is sufficient to create civil
liability."
[This has been quoted in the
treatise on Negligence by
Charlesworth and Percy (para 1.13)]
26. In the concluding part of the judgment in Mathew
(supra) in paragraph 48, sub-paras (5) and (6) the
learned Chief Justice summed up as follows:-
"(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
provide a ground for action in civil law but
cannot form the basis for prosecution.
(6) The word "gross" has not been used in
Section 304-A IPC, yet it is settled that in
criminal law negligence or recklessness, to be
so held, must be of such a high degree as to
be "gross". The expression "rash or negligent
act" as occurring in Section 304-A IPC has to
be read as qualified by the word "grossly"."
27. After laying down the law, as above, the learned
Chief Justice opined that in cases of criminal
negligence where a private complaint of negligence
17
against a doctor is filed and before the
investigating officer proceeds against the doctor
accused of rash and negligent act, the investigating
officer must obtain an independent and competent
medical opinion preferably from a doctor in
Government service, qualified in that branch of
medical practice. Such a doctor is expected to give
an impartial and unbiased opinion applying the
primary test to the facts collected in the course of
investigation. Hon'ble Chief Justice suggested that
some statutory rules and statutory instructions
incorporating certain guidelines should be issued by
the Government of India or the State Government in
consultation with the Medical Council of India in
this regard. Till that is done, the aforesaid course
should be followed. But those directions in paragraph
52 of Mathew (supra) were certainly not given in
respect of complaints filed before the Consumer Fora
under the said Act where medical negligence is
treated as civil liability for payment of damages.
28. This fundamental distinction pointed out by the
learned Chief Justice in the unanimous three-Judge
Bench decision in Mathew (supra) was unfortunately
18
not followed in the subsequent two-Judge Bench of
this Court in Martin F. D'souza v. Mohd. Ishfaq,
reported in 2009 (3) SCC 1. From the facts noted in
paragraphs 17 and 18 of the judgment in D'souza
(supra), it is clear that in D'souza (supra)
complaint was filed before the National Consumer
Disputes Redressal Commission and no criminal
complaint was filed. The Bench in D'souza (supra)
noted the previous three-Judge Bench judgment in
Mathew (supra) [paragraph 41 at pages 17-18 of the
report] but in paragraph 106 of its judgment, D'souza
(supra) equated a criminal complaint against a doctor
or hospital with a complaint against a doctor before
the Consumer Fora and gave the following directions
covering cases before both. Those directions are set
out below:-
"We, therefore, direct that whenever a
complaint is received against a doctor or
hospital by the Consumer Fora (whether
District, State or National) or by the
criminal court then before issuing notice to
the doctor or hospital against whom the
complaint was made the Consumer Forum or the
criminal court should first refer the matter
to a competent doctor or committee of doctors,
specialised in the field relating to which the
medical negligence is attributed, and only
after that doctor or committee reports that
there is a prima facie case of medical
negligence should notice be then issued to the
doctor/hospital concerned. This is necessary
to avoid harassment to doctors who may not be
ultimately found to be negligent. We further
warn the police officials not to arrest or
19
harass doctors unless the facts clearly come
within the parameters laid down in Jacob
Mathew case, otherwise the policemen will
themselves have to face legal action."
29. We are of the view that aforesaid directions are not
consistent with the law laid down by the larger Bench
in Mathew (supra). In Mathew (supra), the direction
for consulting the opinion of another doctor before
proceeding with criminal investigation was confined
only in cases of criminal complaint and not in
respect of cases before the Consumer Fora. The
reason why the larger Bench in Mathew (supra) did not
equate the two is obvious in view of the
jurisprudential and conceptual difference between
cases of negligence in civil and criminal matter.
This has been elaborately discussed in Mathew
(supra). This distinction has been accepted in the
judgment of this Court in Malay Kumar Ganguly (supra)
(See paras 133 and 180 at pages 274 and 284 of the
report).
30. Therefore, the general directions in paragraph 106 in
D'souza (supra), quoted above are, with great
respect, inconsistent with the directions given in
20
paragraph 52 in Mathew (supra) which is a larger
Bench decision.
31. Those directions in D'souza (supra) are also
inconsistent with the principles laid down in
another three-Judge Bench of this Court rendered
in Indian Medical Association (supra) wherein a
three-Judge Bench of this Court, on an exhaustive
analysis of the various provisions of the Act, held
that the definition of `service' under Section
2(1)(o) of the Act has to be understood on broad
parameters and it cannot exclude service rendered by
a medical practitioner.
32. About the requirement of expert evidence, this Court
made it clear in Indian Medical Association (supra)
that before the Fora 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 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
21
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(PC)] 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
22
the consumer to approach the civil court for
necessary relief..."
33. 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 Fora
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.
34. The decision in Indian Medical Association
(supra) has been further explained and reiterated
in another three judge Bench decision in Dr. J.
23
J. Merchant and others vs. Shrinath Chaturvedi
reported in (2002) 6 SCC 635.
35. 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]
[Emphasis supplied]
36. 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
24
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).
37. 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 Fora 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.
38. Apart from being contrary to the aforesaid two
judgments by larger Bench, the directions in
paragraph 106 in D'souza (supra) is also contrary
25
to the provisions of the said Act and the Rules
which is the governing statute.
39. 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.
26
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."
40. A three-Judge Bench of this Court in State of
Karnataka v. Vishwabharathi House Building Coop.
Society & Others, (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.
41. 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 Fora for quick and speedy disposal of
the grievances of the consumers. These aspect of the
27
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].
42. 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.
43. In Spring Meadows (supra) this Court was dealing with
the case of medical negligence and held that in cases
of gross medical negligence the principle of res ipsa
loquitur can be applied. In paragraph 10, this Court
gave certain illustrations on medical negligence
28
where the principle of res ipsa loquitur can be
applied.
44. In Postgraduate Institute of Medial Education and
Research, Chandigarh v. Jaspal Singh and others,
(2009) 7 SCC 330, also the Court held that mismatch
in transfusion of blood resulting in death of the
patient, after 40 days, is a case of medical
negligence. Though the learned Judges have not used
the expression res ipsa loquitur but a case of
mismatch blood transfusion is one of the
illustrations given in various textbooks on medical
negligence to indicate the application of res ipsa
loquitur.
45. In the treaties on Medical Negligence by Michael
Jones, the learned author has explained the principle
of res ipsa loquitur as essentially an evidential
principle and the learned author opined that the said
principle is intended to assist a claimant who, for
no fault of his own, is unable to adduce evidence as
to how the accident occurred. The principle has been
explained in the case of Scott v. London & St.
29
Katherine Docks Co. [reported in (1865) 3 H & C.
596], by Chief Justice Erle in the following manner:-
"...where the thing is shown to be under the
management of the defendant or his servants,
and the accident is such as in the ordinary
course of things does not happen if those who
have the management use proper care, it
affords reasonable evidence, in the absence of
explanation by the defendants, that the
accident arose from want of care".
46. The learned author at page 314, para 3-146 of the
book gave illustrations where the principles of
res ipsa loquitur have been made applicable in the
case of medical negligence. All the
illustrations which were given by the learned
author were based on decided cases. The
illustrations are set out below:-
7 "Where a patient sustained a burn from a high
frequency electrical current used for
"electric coagulation" of the blood [See
Clarke v. Warboys, The Times, March 18, 1952,
CA];
7 Where gangrene developed in the claimant's arm
following an intramuscular injection [See
Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42];
7 When a patient underwent a radical
mastoidectomy and suffered partial facial
30
paralysis [See Eady v. Tenderenda (1974) 51
D.L.R. (3d) 79, SCC];
7 Where the defendant failed to diagnose a known
complication of surgery on the patient's hand
for Paget's disease[See Rietz v. Bruser (No.2)
(1979) 1 W.W.R. 31, Man QB.];
7 Where there was a delay of 50 minutes in
obtaining expert obstetric assistance at the
birth of twins when the medical evidence was
that at the most no more than 20 minutes
should elapse between the birth of the first
and the second twin [See Bull v. Devon Area
Health Authority (1989), (1993) 4 Med. L.R.
117 at 131.];
7 Where, following an operation under general
anaesthetic, a patient in the recovery ward
sustained brain damage caused by bypoxia for a
period of four to five minutes [See Coyne v.
Wigan Health Authority {1991) 2 Med. L.R. 301,
QBD];
7 Where, following a routine appendisectomy
under general anaesthetic, an otherwise fit
and healthy girl suffered a fit and went into
a permanent coma [See Lindsey v. Mid-Western
Health Board (1993) 2 I.R. 147 at 181];
7 When a needle broke in the patient's buttock
while he was being given an injection [See
Brazier v. Ministry of Defence (1965) 1 Ll.
Law Rep. 26 at 30];
7 Where a spinal anaesthetic became contaminated
with disinfectant as a result of the manner in
which it was stored causing paralysis to the
patient [See Roe v. Minister of Health (1954)
2 Q.B. 66. See also Brown v. Merton, Sutton
and Wandsworth Area Health Authority (1982) 1
All E.R. 650];
31
7 Where an infection following surgery in a
"well-staffed and modern hospital" remained
undiagnosed until the patient sustained
crippling injury [See Hajgato v. London Health
Association (1982) 36 O.R. (2d) 669 at 682];
and
7 Where an explosion occurred during the course
of administering anaesthetic to the patient
when the technique had frequently been used
without any mishap [Crits v. Sylvester (1956)
1 D.L.R. (2d) 502]."
47. In a case where negligence is evident, the
principle of res ipsa loquitur operates and the
complainant does not have to prove anything as
the thing (res) proves itself. In such a case it
is for the respondent to prove that he has taken
care and done his duty to repel the charge of
negligence.
48. If the general directions in paragraph 106 in
D'souza (supra) are to be followed then the
doctrine of res ipsa loquitur which is applied in
cases of medical negligence by this Court and
also by Courts in England would be redundant.
32
49. In view of the discussions aforesaid, this Court
is constrained to take the view that the general
direction given in paragraph 106 in D'souza
(supra) cannot be treated as a binding precedent and
those directions must be confined to the particular
facts of that case.
50. With great respect to the Bench which decided D'souza
(supra) this Court is of the opinion that the
directions in D'souza (supra) are contrary to (a) the
law laid down in paragraph 37 of Indian Medical
Association (supra), (b) and paragraph 19 in Dr. J.J.
Merchant (supra), (c) those directions in
paragraph 106 of D'souza (supra) equate medical
negligence in criminal trial and negligence fastening
civil liability whereas the earlier larger Bench in
Mathew (supra) elaborately differentiated between the
two concepts, (d) Those directions in D'souza (supra)
are contrary to the said Act which is the governing
statute, (d) those directions are also contrary to
the avowed purpose of the Act, which is to provide a
speedy and efficacious remedy to the consumer. If
those general directions are followed then in many
cases the remedy under the said Act will become
33
illusory, (f) those directions run contrary to
principle of `Res ipsa loquitur' which has matured
into a rule of law in some cases of medical
negligence where negligence is evident and obvious.
51. When a judgment is rendered by ignoring the
provisions of the governing statute and earlier
larger Bench decision on the point such decisions are
rendered `Per incuriam'. This concept of `Per
incuriam' has been explained in many decisions of
this Court. Justice Sabyasachi Mukharji (as his
Lordship then was) speaking for the majority in the
case of A.R. Antulay vs. R.S. Nayak and another
reported in (1988) 2 SCC 602 explained the concept in
paragraph 42 at page 652 of the report in following
words:-
"Per incuriam" are those decisions given in
ignorance or forgetfulness of some
inconsistent statutory provision or of some
authority binding on the court concerned, so
that in such cases some part of the decision
or some step in the reasoning on which it is
based, is found, on that account to be
demonstrably wrong.
52. Subsequently also in the Constitution Bench
judgment of this Court in Punjab Land Development
34
and Reclamation Corporation Ltd., Chandigarh vs.
Presiding Officer, Labour Court, Chandigarh and
others reported in (1990) 3 SCC 682, similar views
were expressed in paragraph 40 at page 705 of the
report.
53. The two-Judge Bench in D'souza has taken note of the
decisions in Indian Medical Association and Mathew,
but even after taking note of those two decisions,
D'souza (supra) gave those general directions in
paragraph 106 which are contrary to the principles
laid down in both those larger Bench decisions. The
larger Bench decision in Dr. J.J. Merchant (supra)
has not been noted in D'souza (supra). Apart from
that, the directions in paragraph 106 in D'souza
(supra) are contrary to the provisions of the
governing statute. That is why this Court cannot
accept those directions as constituting a binding
precedent in cases of medical negligence before
consumer Fora. Those directions are also inconsistent
with the avowed purpose of the said Act.
35
54. This Court however makes it clear that before the
consumer Fora if any of the parties wants to adduce
expert evidence, the members of the Fora by applying
their mind to the facts and circumstances of the case
and the materials on record can allow the parties to
adduce such evidence if it is appropriate to do so in
the facts of the case. The discretion in this matter
is left to the members of Fora especially when
retired judges of Supreme Court and High Court are
appointed to head National Commission and the State
Commission respectively. Therefore, these questions
are to be judged on the facts of each case and there
cannot be a mechanical or strait jacket approach that
each and every case must be referred to experts for
evidence. When the Fora finds that expert evidence is
required, the Fora must keep in mind that an expert
witness in a given case normally discharges two
functions. The first duty of the expert is to explain
the technical issues as clearly as possible so that
it can be understood by a common man. The other
function is to assist the Fora in deciding whether
the acts or omissions of the medical practitioners or
the hospital constitute negligence. In doing so, the
expert can throw considerable light on the current
36
state of knowledge in medical science at the time
when the patient was treated. In most of the cases
the question whether a medical practitioner or the
hospital is negligent or not is a mixed question of
fact and law and the Fora is not bound in every case
to accept the opinion of the expert witness.
Although, in many cases the opinion of the expert
witness may assist the Fora to decide the controversy
one way or the other.
55. For the reasons discussed above, this Court holds
that it is not bound by the general direction given
in paragraph 106 in D'souza (supra). This Court
further holds that in the facts and circumstances of
the case expert evidence is not required and District
Forum rightly did not ask the appellant to adduce
expert evidence. Both State Commission and the
National Commission fell into an error by opining to
the contrary. This Court is constrained to set aside
the orders passed by the State Commission and the
National Commission and restores the order passed by
the District Forum. The respondent no.1 is directed
to pay the appellant the amount granted in his favour
by the District Forum within ten weeks from date.
37
56. The appeal is thus allowed with costs assessed at
Rs.10,000/- to be paid by the respondent No.1 to the
appellant within ten weeks.
.....................J.
(G.S. SINGHVI)
.....................J.
(ASOK KUMAR GANGULY)
New Delhi
March 8, 2010
38
