REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5991  OF 2002

Ramesh Chandra Agrawal                                        ………….. Appellant

Versus

Regency Hospital Ltd. & Ors.                                  …………..Respondents

J U D G M E N T

H.L. Dattu, J.

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.  

2) The facts in brief are as under:  

The appellant/complainant was a teacher by profession. He was aged  

about  60 years  when he was down with physical  ailments  such as  

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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 treatment.  

It  is  further  stated,  that,  the  third  operation  was  preformed  and  it  

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provided  the appellant some relief, but left him handicapped due to  

his legs being rendered useless and loss of control over his Bladder  

movement.

3) 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 3.  

The claim of the appellant before the National Commission was as  

under :

i) That  the  correct  method  of  operating  his  infection  was  the  Antero-Lateral Decompression (ALD) and not Laminectomy.  

ii) That 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.

iii) That there was no requirement of immediate surgery.

iv) That  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.

Hence, it was claimed that there is gross negligence and carelessness  

on the part of the respondents in treating the complainant/appellant,  

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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.  

4) NATIONAL COMMISSION JUDGMENT:  

After  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.  

5) Feeling  aggrieved  by  the  decision,  the  appellant  has  filed  this  appeal  

under Section 23 of the Consumer Protection Act, 1986.

6) 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  

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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.

7) 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.  

8)       We have heard the learned counsel for the parties to the lis.  

9)         POTT’S DISEASE AND PROTOCOL OF TREATMENT:

i) The 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.

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In  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.  

Through 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.  

The  anterior  surgical  approach  is  chosen  for  cervical  and  lumbar  

regions.  Anterior  spinal  fusions is  currently  thought  to  be the  best  

surgical adjunct to after atleast 18 months of anti-TB chemotherapy.

The 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  

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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  muscle  

spasms.  

If  the  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.

iii   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:  

Since medical  science is complicated, expert opinion provides deep  

insight. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and  

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Ors.)  [Criminal  Appeal  Nos.  1191-1194  of  2005  alongwith  Civil  

Appeal No. 1727 of 2007, decided on 7.8.2009].

It is 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.

11)       EXPERT OPINION:

The law of evidence is  designed to ensure that the court  considers  

only that evidence which will enable it to reach a reliable conclusion.  

The  first  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:  

i) that the expert must be within a recognized field of expertise

ii) that the evidence must be based on reliable principles, and  

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iii) that the expert must be qualified in that discipline.  

[See 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:

“45. 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. (b)  The 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, are relevant. (c)  The  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. The opinion 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,  

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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  

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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  alongwith  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.”

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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 form 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.”

18) 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 Act.  

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19) 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.  

20) 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 that:

“After  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  as  follows: a) No  original  X-Ray  films,  of  various  radiological  

examinations were enclosed either in original form or  in the form of copies.

b) No details of findings at surgery are provided.

c) No details of operative findings have been provided.  Only  the  surgical  procedure  carried  out  has  been  mentioned.  

d) No  details  of  any  subsequent  neurological/neuro- radiological assessment have been provided.  

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In 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.  

22) 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.  

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23) 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  

opportunity.”   

24) 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  

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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.   

25) 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.

26) 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  

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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.

27) 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.

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                                                                                   …………………………………J.                                                                                      [ G.S. SINGHVI ]

…………………………………J.  [ H.L. DATTU ]

New Delhi, September 11, 2009.

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