MUKESH PREMCHAND GURNANI vs PRADEEP PATIL

THE complainants in Complaint No. 197/2003 had challenged the correctness of the rejection order dated 3.2.2005 passed by District Consumer Forum, Thane whereby prayer to issue witness summons is rejected.

WE heard Mr. S.K. Bhatia, Advocate for the applicants. None present for the respondent. Applicant No. 1 is the husband of applicant No. 2. Applicant No. 2 was pregnant. The applicants were advised to approach O.P. for Ultra Sonography for Gravid Uterus. The O.P. performed Ultra Sonography on applicant No. 2 and gave report on 29.6.2002 that a single viable focus was seen in vertex presentation with good cardiac activity and foetal movements. After delivery, major congenital anomaly namely ''Meningo myclocele'' was found in the lumber region of the baby. The baby expired later on. The applicants, therefore, attributed serious medical negligence to the O.P. and filed Consumer Complaint No. 197/2003 against O.P. The applicants tried their level best to procure expert opinion. However, no doctor was ready to give adverse opinion against the O.P. who is also a doctor. Therefore, applicants moved the Forum below by their application and asked thereby to issue summons to any Gynaecologist in the Government Hospital as an Expert to give his opinion. The Forum below rejected the application on the ground that the name and address of the expert is not provided by the applicants.

The learned Advocate Mr. Bhatia vehemently submitted that taking into consideration the helplessness of the org. complainants, Forum below should have forwarded the relevant documents to the Superintendent of Government Hospital for opinion. In support of his submissions, he relied upon the decision of Bombay High Court in the case of Virumal Ladharam Rajani v. Shat Aayu Hospital and Research Centre and Others, 2005 (4) Bom. C.R. 238 and decision of Punjab State Consumer Commission in the case of Darshan Singh Basra v. Jasbir Singh and Others, I (1998) CPJ 45.

WE gave anxious consideration to the argument advanced by the learned Advocate Mr. Bhatia. In the case of Virumal Rajani, an identical type of prayer in medical negligence case, was rejected by the Consumer Forum. Complainant in the said case requested the Consumer Forum to forward the case papers to the Dean of Government Medical College, Nagpur to obtain expert opinion. The case of medical negligence was pending before the District Consumer Forum since 2002 and local doctor was reluctant to give his opinion. The Division Bench of Bombay High Court, Bench at Nagpur has quashed and set aside the order passed by the District Consumer Forum and directed the District Consumer Forum, Nagpur to forward the case papers with necessary material to Civil Surgeon, Nagpur for obtaining his expert opinion about grievance made in the complaint. The Division Bench of Bombay High Court has observed that concerning the prayer made and the facts that local doctors are not in a position to give opinion against any medical practitioners, it will be in the fitness of things to forward the case papers to Civil Surgeon, Nagpur for medical expert opinion. The Punjab State Consumer Commission has observed in the case of Darshan Singh Basra that Section 13(4) of the Consumer Protection Act, 1986 authorises the Consumer Fora established under the Consumer Protection Act, 1986 to exercise powers, which are vested in the Civil Court under the Code of Civil Procedure with respect to summoning and enforcing the attendance of any defendant or witness and examining the witness on oath. The Punjab State Consumer Commission further observed that in the case of medical negligence, if affidavits have not been forthcoming on the record of such of the expert witnesses, the Fora can be requested to summons such witnesses as provided under Section 13(4)(i) of Consumer Protection Act, 1986. The Punjab State Consumer Commission ultimately held that the District Consumer Forum has failed to exercise jurisdiction vested therein in not summoning the witnesses as requested by the complainant.

IT is common experience that in the cases of medical negligence, doctor carrying on medical profession is generally reluctant to give adverse opinion against another doctor. In absence of expert opinion, it is rather difficult to give finding of medical negligence against the doctor, who has treated the patient. For want of expert opinion, justice cannot be denied. By way of last resort, person who, is victim of medical negligence requests the Forum to issue witness summons to the doctor serving in Government Hospital for expert opinion. Such a prayer is certainly covered by Section 13(4)(i) of Consumer Protection Act, 1986. Section 13 of Consumer Protection Act, 1986 provides procedure for admitting the complaint. If complaint is in respect of defective goods, District Consumer Forum is empowered to obtain a sample of goods from the complainant and to refer the sample to the appropriate laboratory along with directions that the laboratory shall make an analysis or test, whichever may be necessary with a view to finding out whether such goods suffered from any defects alleged in the complaint. In such type of cases, the report from the laboratory is called to resolve the dispute. Sub-section (2) of Section 13 of Consumer Protection Act, 1986 relates to deficiency in service. In order to decide deficiency in service in an effective manner, Sub-section (4) of Section 13 is brought on the Statute Book and, therefore, District Consumer Forum shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure while trying a suit in respect of summoning and enforcing the attendance of any defendant or witness and examining the witness on oath. In fact a valuable tool is given to the Consumer Fora for the purpose of effective adjudication of the issue with regard to medical negligence. The Consumer Foras, therefore, are duty bound to do full justice with the aid of the important tool given to it by virtue of Sub-section (4)(i) of Section 13 of the Consumer Protection Act, 1986. The Forum below has failed to exercise its legitimate authority. Moreover, adopting a pedantic and negative approach is also deprecated. The Consumer Protection Act, 1986 is a benevolent legislation. The motto of Consumer law is to protect and promote the rights of consumers. The impugned rejection order passed by the Forum below is, therefore, bad in law on the face of it. In the result, we pass following order: ORDER (1) Revision application is allowed. The impugned rejection order dated 3.2.2005 is hereby quashed and set aside. (2) The Forum below is hereby directed to forward copy of the complaint, written statement and all the relevant case papers together with other necessary material to Civil Surgeon, Thane Civil Hospital for obtaining his expert opinion with regard to allegations of medical negligence. (3) The cost of said purpose is to be incurred by the applicants. (4) No order as to costs. (5) Copies of the order be furnished to the parties.

Revision Application allowed.