Chandra Agrawal Vs. Regency Hospital Ltd. & Ors.  INSC 1569 (11
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5991 OF
2002 Ramesh Chandra Agrawal .............. Appellant Versus Regency Hospital
Ltd. & Ors. ..............Respondents
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.
The facts in brief are as under:
appellant/complainant was a teacher by profession. He was aged about 60 years
when he was down with physical ailments such as 1 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 stated, that, the third operation was performed and it 2 provided the
appellant some relief, but left him handicapped due to his legs being rendered
useless and loss of control over his Bladder movement.
COMPLAINT BEFORE THE NATIONAL COMMISSION: The appellant, being
impaired by the treatment, filed a complaint before the National Consumer
Disputes Redressal Commission (hereinafter referred as "National
Commission") alleging medical negligence on the part of respondents 1 to
of the appellant before the National Commission was as under :
the correct method of operating his infection was the Antero-Lateral
Decompression (ALD) and not Laminectomy.
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.
there was no requirement of immediate surgery.
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.
was claimed that there is gross negligence and carelessness on the part of the
respondents in treating the complainant/appellant, 3 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.
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.
Feeling aggrieved by the decision, the appellant has filed this
appeal under Section 23 of the Consumer Protection Act, 1986.
Contention in the Appeal :
It is the
contention of the appellant that it was due to non-compliance of the order of
National Commission by the Registry of National Commission, the Commission did
not have the benefit of the expert opinion to arrive at a conclusion, as to
whether there was any negligence of the doctors who treated the appellant. It
is further 4 contended that pursuant to the order passed by the Commission
dated 5.1.2000, the appellant had submitted all the records relating to his
treatment on 4.2.2000 and had requested the Registry of the Commission to
forward the same to Dr. A.K. Singh, Neurologist, who had been requested to
offer his opinion on the surgery done to the appellant. However, the Registry
had not sent the documents furnished by the appellant to the expert and,
therefore, the expert could not offer his opinion and thereby, the appellant
was denied the benefit of having an opinion which would have proved his case
before the Commission.
The respondents in their counter affidavit filed before this
court, have denied the assertions and allegations made by the appellants and
further justified the judgment of the National Commission.
We have heard the learned counsel for the parties to the lis.
POTT'S DISEASE AND PROTOCOL OF TREATMENT:
Disease Pott's disease results from an infection of the bone by the Mycobacterium
Tuberculosis bacteria via a combination of hematogenous root and lymphatic
drainage. The organism may stay dormant in the skeletal system for an extended
period of time before the disease can be detected.
Pott's disease, the spinal cord may become involved in a compression by bony
elements and/or expanding abscess or by direct involvement of cord and
leptomeninges by granulation tissue.
experimentations it is found that the golden standard of the diagnosis in
patients is CT guided needle aspiration biopsy.[Assistance taken from the
website] ii) Diagnosis At present, the treatment of Pott's disease remains
controversial. Some advocate conservative treatment with late spinal fusion and
others early spinal fusion followed by conservative treatment Surgical
treatment should include anti-TB medication, abscess decompression.
anterior surgical approach is chosen for cervical and lumbar regions. Anterior
spinal fusions is currently thought to be the best surgical adjunct to after at
least 18 months of anti-TB chemotherapy.
differential diagnosis of lower back pain is complicated by the number of
possible causes and the patient's reaction to the discomfort.
In many cases the patient's perception of back pain is influenced
by poor-quality sleep or emotional issues related to occupation or family
matters. A primary care doctor will begin by taking a careful medical and
occupational history, asking about the onset of the pain as well as 6 its location
and other characteristics. Back pain associated with the lumbar spine very
often affects the patient's ability to move, and the muscles overlying the
affected vertebrae may feel sore or tight. Pain resulting from heavy lifting
usually begins within 24 hours of the overexertion. Most patients who do not
have a history of chronic pain in the lower back feel better after 48 hours of
bed rest with pain medication and either a heating pad or ice pack to relax
patient's pain is not helped by rest and other conservative treatments, he or
she will be referred to an orthopedic surgeon for a more detailed evaluation.
An orthopedic evaluation includes a physical examination , neurological workup,
and imaging studies.
Conservative treatments Surgery for lower back pain is considered a treatment
of last resort, with the exception of cauda equina syndrome. Patients should
always try one or more conservative approaches before consulting a surgeon
about a laminectomy. [http://www.surgeryencyclopedia.com/Fi- La/Laminectomy
.html] 10) CLEAVAGE OF OPINION:
medical science is complicated, expert opinion provides deep insight. (See
Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and 7 Ors.) [Criminal Appeal Nos.
1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on
clear that diagnosis and the method of treatment suggested to a patient of
Pott's disease vary. The nature of disease is such that there exist difference
in the identification of the symptoms and also the protocol of treatment to
cure the disease. Therefore, the expert opinion forms an important role in
arriving at conclusion.
of evidence is designed to ensure that the court considers only that evidence
which will enable it to reach a reliable conclusion.
and foremost requirement for an expert evidence to be admissible is that it is
necessary to hear the expert evidence. The test is that the matter is outside
the knowledge and experience of the lay person. Thus, there is a need to hear
an expert opinion where there is a medical issue to be settled. The scientific
question involved is assumed to be not within the court's knowledge. Thus cases
where the science involved, is highly specialized and perhaps even esoteric,
the central role of expert cannot be disputed. The other requirements for the
admissibility of expert evidence are:
the expert must be within a recognized field of expertise ii) that the evidence
must be based on reliable principles, and 8 iii) that the expert must be
qualified in that discipline.
Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed.,
Cambridge University Press, p.178] 12) Section 45 of the Indian Evidence Act
speaks of expert evidence. It reads as under:
Opinions of experts - When the Court has to form an opinion upon a point of
foreign law, or of science, or art, or as to identity of hand writing or
finger-impressions, the opinions upon that point of persons specially skilled
in such foreign law, science or art, or in questions as to identity of
handwriting or finger impressions, are relevant facts. Such person called
experts. Illustrations (a) The question is, whether the death of A was caused
by poison. The opinions of experts as to the symptoms produced by the poison by
which A is supposed to have died, are relevant.
question is whether A, at the time of doing a certain act, was by reason of
unsoundness of mind, in capable of knowing the nature of the act, or that he
was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms
exhibited by A commonly show unsoundness of mind, and whether such unsoundness
of mind usually renders persons incapable of knowing the nature of the acts
which they do, or knowing that what they do is either wrong or contrary to law,
question is, whether a certain document was written by A. Another document is
produced which is proved or admitted to have been written by A.
of experts on the question whether the two documents were written by the same
person or by different persons are relevant."
13) The importance of the provision has been explained in the case
of State of H.P. v. Jai Lal and Ors.,[(1999) 7 SCC 280]. It is held, that, 9
Section 45 of the Evidence Act which makes opinion of experts admissible lays
down, that, when the court has to form an opinion upon a point of foreign law,
or of science, or art, or as to identity of handwriting or finger impressions,
the opinions upon that point of persons specially skilled in such foreign law,
science or art, or in questions as to identity of handwriting, or finger
impressions are relevant facts. Therefore, in order to bring the evidence of a
witness as that of an expert it has to be shown that he has made a special
study of the subject or acquired a special experience therein or in other words
that he is skilled and has adequate knowledge of the subject.
14) It is not the province of the expert to act as Judge or Jury.
It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the
expert is to put before the court all the materials, together with reasons
which induce him to come to the conclusion, so that the court, although not an
expert, may form its own judgment by its own observation of those materials.
15) An expert is not a witness of fact and his evidence is really
of an advisory character. The duty of an expert witness is to furnish the Judge
with the necessary scientific criteria for testing the accuracy of 10 the
conclusions so as to enable the Judge to form his independent judgment by the
application of these criteria to the facts proved by the evidence of the case.
The scientific opinion evidence, if intelligible, convincing and tested becomes
a factor and often an important factor for consideration along with other
evidence of the case. The credibility of such a witness depends on the reasons
stated in support of his conclusions and the data and material furnished which
form the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr. Sukumar
Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005 along with Civil
Appeal No. 1727 of 2007, decided on 7.8.2009].
16) In the case of State of Maharashtra v. Damu s/o Gopinath
Shinde and others., [AIR 2000 SC 1691 at page 1700], it has been laid down that
without examining the expert as a witness in Court, no reliance can be placed
on an opinion alone. In this regard, it has been observed in The State (Delhi
Administration) v. Pali Ram, [AIR 1979 SC 14] that "no expert would claim
today that he could be absolutely sure that his opinion was correct, expert
depends to a great extent upon the materials put before him and the nature of
question put to him."
17) In the Article "Relevancy of Expert's Opinion" it
has been opined that the value of expert opinion rest on the facts on which it
is based and his competency for forming a reliable opinion. The evidentiary
value of the opinion of expert depends on the facts upon which it is based and
also the validity of the process by which the conclusion is reached. Thus the
idea that is proposed in its crux means that the importance of an opinion is
decided on the basis of the credibility of the expert and the relevant facts
supporting the opinion so that its accuracy can be cross checked. Therefore,
the emphasis has been on the data on basis of which opinion is formed. The same
is clear from following inference: "Mere assertion without mentioning the
data or basis is not evidence, even if it comes from expert. Where the experts
give no real data in support of their opinion, the evidence even though
admissible, may be excluded from consideration as affording no assistance in
arriving at the correct value."
Though we have adverted to the nature of disease and the relevancy
of the expert opinion, we do not think it necessary to go into the merits of
the case in view of the course we propose to adopt, and in view of the fact
that the Commission is the last fact finding authority in the scheme of the
The Commission by its order dated 6.3.2000 had requested Dr. A. K.
Singh, Neurologist, to give his opinion on the surgery done in this case. It
was also ordered that all the records of the surgery will be submitted by the
complainant to the Registrar of the Commission to enable him to forward it to
Dr. A. K. Singh, along with the complaint and also the affidavits filed on
behalf of the respondents. Dr. A. K. Singh will make himself familiar with the
complaint and the records and then give his opinion.
The Assistant Registrar by his letter dated 12.6.2000, forwarded
the original records of the present case to Dr. A. K. Singh. On 19.8.2000, Dr.
A. K. Singh submitted his report to the Assistant Registrar with the findings
careful scrutiny of the documents now made available to me, I find that the
current situation as regards these vital and missing documentary evidences is
a) No original
X-Ray films, of various radiological examinations were enclosed either in
original form or in the form of copies.
details of findings at surgery are provided.
details of operative findings have been provided.
surgical procedure carried out has been mentioned.
details of any subsequent neurological/neuro- radiological assessment have been
view of the foregoing, I feel that no much additional information, over and
above what had originally been provided to me by Dr. Atul Sahai, has been made
available now for me to substantially revise my opinion earlier. I, therefore,
stand by my earlier opinion referred to above."
21) The appellant on 17.9.2001, again filed an application before
the Commission for referring the matter to eminent doctor for his opinion. It
was stated that the expert had at many places stated that he would have been in
a better position to examine the matter if he was made available the X-Rays and
MRI reports etc. Inquiries from the office of Commission revealed that the
office of the Commission, by mistake, forgot to forward the original record to
Dr. A. K. Singh and as a result thereof, Dr. A. K. Singh was deprived of the
opportunity of perusing the same before submitting his opinion in the matter.
In this way, the case of the appellant was severely prejudiced as without these
records it was not possible for an expert to give definite and correct opinion
in the matter.
The Commission by its order dated 22.11.2001 rejected the
application of the appellant stating that Dr A. K. Singh had submitted his
report as far back as on 19.8.2000 and it is not understandable as to why this
application should have been filed at such a later stage.
The Commission in course of its judgment has observed "that
in spite of opportunity being given, the complainant and his wife did not offer
themselves for the cross examination and they have failed to supply material to
Dr. A. K. Singh as mentioned in his report dated 19.08.2000, which could have
enabled him to give a more complete report. Also no evidence of any expert was
led by the appellant. For that matter none of the parties filed any literature
on the subject to support their contentions in spite of giving them an
In the present case, the appellant had filed all the records of
the treatment before the Commission. The Assistant Registrar, due to oversight,
did not send the original records and X-Ray films to the expert. Thus, it was
the Assistant Registrar of the Commission who had failed to perform the duty
diligently. Due to the non-availability of vital and important information, the
expert was handicapped in giving his opinion on the basis of which the order of
the Commission was to be passed. It is very much clear from the report of Dr.
A. K. Singh dated 19.8.2000, that he would have been in a better position if
certain documents would have been made available to him. The appellant had also
filed an application before the Commission dated 15 17.9.2001, bringing to the
notice of the Commission the lack of care shown by the Assistant Registrar, who
had failed to forward the records of the treatment to the expert, and had
requested to send the records for reconsideration. This application was
rejected by the Commission holding that the reconsideration of the expert
opinion at this stage is not necessary.
The Commission while rendering its judgment has failed to
appreciate that in such cases expert would not be in a position to form a true
opinion if all the documents pertaining to the matter, on which the opinion is
desired, are made available to him. The Commission on the application made by
the appellant should have again directed for the expert opinion after making
all the records of the treatment available to the expert. The appellant should
not suffer for the negligence of the Assistant Registrar and also when the
Commission has itself stated in its judgment that supply of material to Dr. A.
K. Singh could have enabled him to give a more complete report.
It is important to note that the appellant had brought to the
notice of National Commission, the lack of care shown by the Assistant
Registrar, who had failed to forward the records of the treatment to 16 the
expert, by filing an application before the Commission dated 17.9.2001. This
application was rejected by the Commission holding that the reconsideration of
the expert opinion at this stage is not necessary. In our view, the principles
of Natural Justice require that a fair opportunity should be given to the complainant
to prove his claim based on the report of the expert. Since that opportunity is
denied to the appellant, the impugned order passed by National Commission
cannot be sustained.
In view of the above discussion, appeal requires to be allowed
and, accordingly, it is allowed. The impugned order is set aside. The Registrar
of the Commission is directed to forward all the records of the treatment filed
by the appellant before the Commission to Dr. A. K. Singh, Neurologist, who is
now working at Fortis Hospital, Noida, for his expert opinion within one month
from the date of receipt of this order, with a request to give his expert
opinion on the basis of the records of the treatment and affidavits filed by
both the parties within two months from the date the records are made available
to him. After receipt of the expert opinion, the Commission is requested to
pass fresh order in accordance with law. No order as to costs.
.......................................J. [ G.S. SINGHVI ]
.......................................J. [ H.L. DATTU ]
September 11, 2009.