Smt. Sayantani Adhikari. Dr. Vinutha Arunachalam & Others.
Date of Filing: 21.06.2022. Date of Disposal: 02.09.2022.
Order No. 19 Date: 02.09.2022.
Today is fixed for passing order in respect of M.A. case being No. 45/2022 .
The complainant files hazira through the Ld. Advocate. OP No.4 also files hazira. Other OPs did not take any steps.
The M.A case being No. 45/2022 is taken up for passing order.
OP Nos. 1 & 2 has filed a petition supported by an affidavit on 21.06.2022 praying for passing necessary order in view of the averment made in Paragraph 5 of the instant petition for natural justice.
The Para 5 of the instant petition disclosed that “ In view of the foregoing decisions of the Hon’ble Supreme Court of India, reported in 2009 CTJ 352 between Martin F. Desouza Vs. Mohd. Ishfaq necessary direction may kindly be made upon the complainant to send the medical record of the patient either to a team of doctors in this filed or to a Govt. Hospital or an expert Doctor in this field with request to find out the latches, negligence , imperfection etc. of the Opposite Parties , if any, within a stipulated period of time and to file the said report before this Learned Commission for proper appraisal of the matter and upon getting such report if there be any fault, imperfection, negligence of the Opposite Parties be any and to issue Notice thereof to the Opposite Parties for clarification of such points and thereafter to proceed with the case as per rules and regulations of COPRA”.
Copy of the petition has been served to the complainant to which Ld. Advocate for the complainant raised objection.
Ld. Advocate for OP Nos. 1 & 2 , at the time of hearing of the M.A. Case being No. 45/2022 , has argued that in view of the decision of the Hon’ble Supreme Court, mentioned in Para 5 of the instant petition, the case is not maintainable . But the Ld. Advocate for the complainant has argued that the case is well-maintainable in this Commission and he cited a decision reported in V. Kishan Rao Vs. Nikhil Super Speciality Hospital, Civil Appeal No. 2641/2010 passed by the Hon’ble Supreme Court, another decision reported in Dr. J.J. Merchant & Ors Vs. Shrinath Chaturvedi (Civil Appeal No. 7975 of 2001) of the Hon’ble Supreme Court and Dr. Kunal Kiran Kondewar Vs. Balram Murlidhar Ratnaparkhi FA No. 67 of 2018 decided by the Hon’ble Consumer Disputes Redressal Commission, Mumbai, D/O 30.11.2021 .
In case of Martin F. Desouza Vs. Md. Ishfaq, the Hon’ble Supreme Court has held that “ Whenever a complaint is received against a doctor or hospital by a Consumer Forum or by the Criminal Court then before issuing a notice to the complainee doctor or hospital, it should be referred to a competent doctor or committee of doctors, specialized in the field to which the medical negligence relates, and only thereafter if there is a prima facie case that a notice be issued to the concerned doctor/hospital”.
But in case of V. Kishan Rao Vs. Nikhil Super Speciality Hospital (Civil Appeal No. 2641/2010) the Hon’ble Supreme Court observed “The three- Judge Bench in Dr. J.J. Merchant (supra) accepted that it has to be left to the discretion of the Commission to examine experts if required in an appropriate matter. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings and 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 the Commission. 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 D. J. J. Merchant (supra). 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 stature.”
In another decision in connection with the First Appeal No. 67/2018 the Hon’ble Maharashtra Consumer Disputes Redressal Commission, Mumbai, passed a Judgment on 30.11.2021 and observed that, “Though the Ld. Advocate of the complainant relied upon the ratio of Hon’ble Supreme Court in Martin F. D’Souza Vs. Mohd. Ishfaq (2009) 3 SCC and argued that the action of calling expert report by District Forum is therefore justified. However, the Hon’ble Supreme Court in Kishan Rao Vs. Nikhil Super Speciality Hospital and another (2010) 5 SCC 513 held in para 29 that, the directions in Martin F. D’Souza case are not consistent with the law laid down by the larger Bench in Jacob Mathew’s case (Supra ). The learned advocate of the opponent has also relied upon the Judgment in Kishan Rao’s case. The learned advocate of the opponent has also relied upon Ramesh Chandra Agrawal –Vs.-Regency Hospital Ltd. & Ors., Civil Appeal No. 5991 of 2002 where it is held that expert is not witness of fact. His evidence is of advisory character, the credibility of the evidence depends on reason stated in support of his conclusion. In the light of this judgment in Ramesh Agrawal’s case, we are inclined to discuss merits in the report of expert committee. After perusal of the said report it reveals that it is not concluding pointing towards negligence of opponent.
In the present case, the complaint was admitted on 29.04.2022 and notices were issued to the Opposite Parties and after appearing in this case by filing Written Versions and M. A case on 21.06.2022 with the caption in the matter of application for effecting proper procedure in adjudication of the case of alleged medical negligence as per the guidelines of the Hon’ble Supreme Court of India, prays for passing necessary order and the OP Nos. 1 & 2 only stressed the guidelines of the Hon’ble Supreme Court in the case of Martin F. Desouza Vs. Md. Ishfaq for effecting proper procedure in adjudication. But the Ld. Advocate for the complainant stressed the decision of the Hon’ble Supreme Court reported in V. Kishan Rao Vs. Nikhil Super Speciality Hospital Civil Appeal No. 2641/2010 and submitted that the District Commission rightly issued the notice to the OPs after admitting the case in view of this decision and he also argued that the larger Bench of the Hon’ble Supreme Court in Dr. J.J. Merchant (Supra) will be followed if the expert evidence is necessary during the stage of evidence of the case and it was the larger Bench of the Hon’ble Supreme Court than the Bench in the case of Martin F. Desouza and the three-Judge Bench in Dr. J.J. Merchant accepted the position that it has to be left to the discretion of the Commission “to examine experts if required in an appropriate matter.”
In the instant case, the evidence has not yet been adduced by other side at all, as the stage of evidence could not be fixed due to filing of this type of petition by the OP Nos. 1 & 2 just after appearance in this case. After taking evidence of both sides, if there is any necessity to take expert opinion or evidence, then this Commission can take the expert opinion.
Under the above facts and circumstance, we are of opinion that the case is maintainable at this stage.
Hence, it is
ORDERED
That the M. A. Case being NO. 45/2022 be and the same is disposed of without any cost.
Let the case being No. CC/85/2020 be fixed for evidence from the side of the complainant.
Let a copy of this order be supplied to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C. Purba Bardhaman D.C.D.R.C , Purba Bardhaman
