SHAHJAHAN SIDDIQUIE vs RUBY GENERAL HOSPITAL

MAJORITY View : 1. The facts of the present appeal matter have been described in the order of the learned President and are not being repeated here. The Forum heard the case in regard to maintainability of the matter and did not go into the merit of the matter. The complainant wanted to adduce the evidence of two medical experts in order to establish his allegation against the O.Ps. On such a prayer being made by the complainant the Forum came to the conclusion that the instant case involves complicated facts requiring the evidence of medical experts and passed the order that the complainant should be asked to approach the Civil Court of proper jurisdiction for appropriate relief, keeping in view the principle of law laid down by the Hon''ble Supreme Court in para 38 of the case AIR 1996 SC 550.

ACCORDING to me the presumption of the Forum that the case involves complicated questions was too premature. The complainant merely sought to produce two medical experts as witnesses in order to prove his allegation of medical negligence against the O.Ps. I think that this was a legitimate prayer of the complainant and the mere fact that two medical experts were sought to be examined cannot and should not automatically lead to the conclusion that the case is complicated. As a matter of fact in several cases of medical negligence (for example order dated 28.7.1999 in F.As. 2 and 3 of 1997-1999 (3) CPR 13 (NC), the Hon''ble National Commission has observed that it is necessary to produce evidence by way of opinion of medical experts and/or their examination as witnesses for proving the allegation of medical negligence. There are a very large number of cases of medical negligence that have been adjudicated by the District Fora/State Commissions all over the country where medical experts have been examined as witnesses for proper adjudication. Even in this State Commission several cases of medical negligence have been/are being adjudicated where medical experts are being examined and cross-examined as witnesses. ACCORDING to me, the prayer of the complainant for examination of medical experts as witnesses was a legitimate prayer assuming that prima facie there was possibility of negligence, and he should not be denied this opportunity on the presumed technical ground that this will make the case complicated. It is relevant to mention here that while adjudicating one matter the National Commission observed as under vide II (1991) CPJ 202 (NC), S.K. Abdul Sukur v. State of Orissa & Ors. "If jurisdiction is declined by the Redressal Forums set up under the Act in all such cases on the mere ground that examination and cross-examination of witnesses would be necessary, it would amount to unjust denial of benefits of the Act to the aggrieved consumer by erroneous abdication of its jurisdiction by the Forum."

The above observation of the National Commission supports the contention of the appellant.

IN the order of the Forum reliance has been placed on para 38 of the order of the Hon''ble Supreme Court cited above. The precise context in which para 38 was included in the order needs to be kept in view. The observations in this paragraph were made by the Hon''ble Supreme Court by way of defending the composition of the District Fora/State Commissions and holding them competent to adjudicate the cases of medical negligence. The situation where the District Fora/State Commissions should adjudicate as stated in the said paragraph are, according to me, only illustrative in nature and not exhaustive. Moreover, as already stated, there are a large number of cases of medical negligence where experts have been examined as witnesses and the cases have been adjudicated taking into account such expert evidence. In view of what has been stated above it is held that the case of the complainant is very much maintainable. Accordingly, I deem it fit to remit the case back to the Forum on remand with the instruction to allow the complainant to produce the medical experts as witnesses for examination if he so wishes. Initially the complainant may file the evidence of the experts on affidavit and if examination of the experts as witnesses is still found necessary, the same may be considered. The matter may, thereafter, be heard on merit after affording adequate opportunities to both the parties to prove their respective contentions. A copy of this order be served on the respondent also. Be it noted that we do not make any observation at this stage about the merit of the case. The appeal be disposed of accordingly. Minority View : 1. This is complainant''s appeal against the order of dismissal passed by the Forum. The Forum has however, given opportunity to the petitioner to seek relief before the Civil Court of proper jurisdiction. 2. It appears that the Forum took up for consideration the objection regarding the maintainability of the case. According to the Forum, the present case involves complicated questions requiring the evidence of medical experts and as such thought it proper to direct the petitioner to approach the Civil Court of competent jurisdiction for appropriate relief. The complainant has filed a list of two witnesses both of whom are doctors. It appears that the complainant intended to examine those doctors in order to substantiate his allegation. It also appears that in coming to the conclusion the Forum has relied upon the decision of the Supreme Court reported in AIR 1996 Supreme Court 550. On going through the aforesaid judgment we cannot take a different view. Both the witnesses whom the petitioner wanted to examine as witnesses are medical experts and lengthy examination and cross-examination by the O.Ps. would have followed. The case involves complicated issues requiring evidence of experts and thus, in our view, cannot be done in a summary proceeding. So, we find that the Forum did nothing wrong in referring the petitioner to seek remedy before the Civil Court. We find no substance in the appeal which is hereby dismissed. Appeal disposed of.