REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2641_ OF 2010 (Arising out of SLP(C) No.15084/2009)

V. Kishan Rao ..Appellant(s)

Versus  

Nikhil Super Speciality Hospital ..Respondent(s) & Another

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. This appeal has been filed challenging the judgment  

and order dated 19.02.2009 of the National Consumer  

Disputes  Redressal  Commission,  New  Delhi  

(hereinafter, ‘National Commission’) which upheld the  

finding of the State Consumer Forum. The order of the  

National Commission runs as follows:

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“Heard.  The  State  Commission  after  elaborate  discussion  has  come  to  the  conclusion that there was no negligence  on the part of the respondent doctor. All  possible care was taken by the respondent  in  treating  the  petitioner.  The  State  Commission  has  also  recorded  a  finding  that no expert opinion was produced by  the petitioner to prove that the line of  treatment  adopted  by  the  respondent  hospital  was  wrong  or  was  due  to  negligence  of  respondent  doctor.  Dismissed”.

3. The  appellant,  who  happens  to  be  the  original  

complainant, is an officer in the Malaria department  

and he got his wife admitted in the Respondent No. 1  

hospital on 20.07.02 as his wife was suffering from  

fever  which  was  intermittent  in  nature  and  was  

complaining of chill.

4. In the complaint, the appellant further alleged that  

his  wife  was  subjected  to  certain  tests  by  the  

respondent No.1 but the test did not show that she  

was suffering from malaria. It was also alleged that  

his wife was not responding to the medicine given by  

the opposite party No.1 and on 22nd July, 2002 while  

she was kept admitted by respondent No.1.  Saline was  

given  to  her  and  the  complainant  had  seen  some  

particles in the saline bottle. This was brought to  

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the notice of the authorities of the respondent No.1  

but to no effect. Then on 23rd July 2002 complainant’s  

wife was complaining of respiratory trouble and the  

complainant  also  brought  it  to  the  notice  of  the  

authorities  of  the  respondent  No.1  who  gave  

artificial oxygen to the patient. According to the  

complainant at that stage artificial oxygen was not  

necessary  but  without  ascertaining  the  actual  

necessity  of  the  patient,  the  same  was  given.  

According  to  the  complainant  his  wife  was  not  

responding to the medicines and thus her condition  

was deteriorating day by day. The patient was finally  

shifted to Yashoda Hospital from the respondent No.1.

5. At  the  time  of  admission  in  Yashoda  Hospital  the  

following conditions were noticed:

“INVESTIGATIONS Smear  for  MP-Positive-ring  forms  &  Gametocytes  of  P.  Falciparam  seen  Positive index-2-3/100RBCS LFT-TB-1.5     DB-1.0     IB-0.5

WIDAL test-Negative HIV & HBsAG-Negative PT-TEST-22 sec

CONTROL-13 sec APTT-TEST-92 sec

CONTROL-38 sec CBP-HB-3.8% gms

TLC-30.900/cumm

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RBC-1.2/cumm HRP II-Positive B urea-38 mg/dl S Creatinine-1.3 mb/dl S Electrolytes-NA/K/CL-148/5.2/103 mEq/L C X R – s/o ARDS

CASE DISCUSSION 45  yrs  old  of  patient  admitted  in  AMC  with  H/o  fever-8  days  admitted  5  days  back  in  NIKHIL  HOSPITAL  &  given  INJ  MONOCEF,  INJ  CIFRAN,  INJ  CHOLROQUINE  because of dysnoea today suddenly shifted  to Y.S.S.H. for further management. Upon  arrival in AMC, patient unconscious, no  pulse, no BP, pupils dilated. Immediately  patient intubated & ambu bagging AMC &  connected  to  ventilator.  Inj.  Atropine,  inj.  Adhenoline,  inj.  Sodabicarb  given,  DC shock also given. Rhyth restored at  1.35 PM At 10.45 pm, patient developed  brady  cardia  &  inspite  of  repeated  Altropine  &  Adhenolin.  HR-‘O’  DC  shock  given. External Cardiac massage given. In  spite  of  all  the  resuscitative  measure  patient could not be revived & declared  dead at 11.30pm on 24.7.2002”.

6. In  the  affidavit,  which  was  filed  by  one  Dr.  

Venkateswar Rao who is a Medical Practitioner and the  

Managing Director of the respondent No.1 before the  

District  Forum,  it  was  admitted  that  patient  was  

removed from respondent No.1 to the Yashoda Hospital  

being  accompanied  by  the  doctor  of  the  respondent  

No.1.  From  the  particulars  noted  at  the  time  of  

admission of the patient in Yashoda Hospital it is  

clear that the patient was sent to Yashoda Hospital  

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in  a  very  precarious  condition  and  was  virtually,  

clinically dead.

7. On the complaint of the appellant that his wife was  

not given proper treatment and the respondent No.1  

was negligent in treating the patient the District  

Forum, on a detailed examination of the facts, came  

to a finding that there was negligence on the part of  

the respondent No.1 and as such the District Forum  

ordered that the complainant is entitled for refund  

of  Rs.10,000/-  and  compensation  of  Rs.2  lakhs  and  

also entitled to costs of Rs.2,000/-.  

8. The  District  Forum  relied  on  the  evidence  of  Dr.  

Venkateswar Rao who was examined on behalf of the  

respondent  No.1.  Dr.  Rao  categorically  deposed  “I  

have not treated the case for malaria fever”. The  

District  Forum  found  that  the  same  is  a  clear  

admission on the part of the respondent No.1 that the  

patient was not treated for malaria. But the death  

certificate given by the Yashoda Hospital disclosed  

that  the  patient  died  due  to  “cardio  respiratory  

arrest and malaria”. In view of the aforesaid finding  

the District Forum came to the conclusion that the  

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patient was subjected to wrong treatment and awarded  

compensation of Rs.2 lakhs and other directions as  

mentioned  above  in  favour  of  the  appellant.  The  

District  Forum  also  noted  when  the  patient  was  

admitted  in  a  very  critical  condition  in  Yoshoda  

Hospital  the  copy  of  the  Haematology  report  dated  

24.7.2002 disclosed blood smear for malaria parasite  

whereas  Widal  test  showed  negative.  The  District  

Forum also noted that the case sheet also does not  

show that any treatment was given for Malaria. The  

Forum  also  noted  that  the  respondent-authorities,  

despite  the  order  of  the  Forum  to  file  the  case  

sheet,  delayed  its  filing  and  there  were  over  

writings on the case sheet. Under these circumstances  

the District Forum noted that case records go to show  

that wrong treatment for Typhoid was given to the  

complainant’s wife. As a result of such treatment the  

condition of the complainant’s wife became serious  

and in a very precarious condition she was shifted to  

Yashoda  Hospital  where  the  record  shows  that  the  

patient suffered from malaria but was not treated for  

malaria. Before the District Forum, on behalf of the  

respondent  No.1,  it  was  argued  that  the  complaint  

sought  to  prove  Yashoda  Hospital  record  without  

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following the provisions of Sections 61, 64, 74 and  

75  of  Evidence  Act.  The  Forum  overruled  the  

objection, and in our view rightly, that complaints  

before consumer are tried summarily and Evidence Act  

in terms does not apply. This Court held in the case  

of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and  others reported in (2009) 9 SCC 221 that provisions  of Evidence Act are not applicable and the Fora under  

the Act are to follow principles of natural justice  

(See paragraph 43, page 252 of the report).   

9. Aggrieved  by  the  order  of  the  District  Forum  

respondent No. 1 preferred an appeal to the State  

Consumer Disputes Redressal Commission (FA No. 89 of  

2005) and the insurance company, which is respondent  

no. 2 before this Court, preferred another appeal (FA  

no. 1066 of 2005). The State Forum vide its order  

dated 31.10.2008 allowed the appeals.   

10. In doing so the State Commission relied on a decision  

in Tarun Thakore vs. Dr. Noshir M. Shroff (O.P. No.  215/2000  dated  24.9.2002)  wherein  the  National  

Commission made some observations about the duties of  

doctor towards his patient. From those observations  

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it is clear that one of the duties of the doctor  

towards his patient is a duty of care in deciding  

what treatment is to be given and also a duty to take  

care in the administration of the treatment. A breach  

of any of those duties may lead to an action for  

negligence  by  the  patient.  The  State  Forum  also  

relied on a decision of this Court in Indian Medical  Association vs. V.P. Shantha & others – (1995) 6 SCC  651.

11. Relying  on  the  aforesaid  two  decisions,  the  State  

Forum found that in the facts and circumstances of  

the  case,  the  complainant  failed  to  establish  any  

negligence on the part of the hospital authorities  

and  the  findings  of  the  District  Forum  were  

overturned by the State Commission. In the order of  

the State Commission there is a casual reference to  

the effect that “there is also no expert opinion to  

state  that  the  line  of  treatment  adopted  by  the  

appellant/opposite party No.1 Hospital is wrong or is  

negligent”.

12. In  this  case  the  State  Forum  has  not  held  that  

complicated issues relating to medical treatment have  

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been raised. It is not a case of complicated surgery  

or a case of transplant of limbs and organs in human  

body. It is a case of wrong treatment in as much as  

the  patient  was  not  treated  for  malaria  when  the  

complaint is of intermittent fever and chill. Instead  

the respondent No.1 treated the patient for Typhoid  

and as a result of which the condition of the patient  

deteriorated.  When  the  condition  became  very  very  

critical the patient was removed to Yashoda Hospital  

but patient could not be revived.  

13. In  the  opinion  of  this  Court,  before  forming  an  

opinion that expert evidence is necessary, the Fora  

under the Act must come to a conclusion that the case  

is complicated enough to require the opinion of an  

expert or that the facts of the case are such that it  

cannot be resolved by the members of the Fora without  

the assistance of expert opinion. This Court makes it  

clear that in these matters no mechanical approach  

can be followed by these Fora.  Each case has to be  

judged on its own facts. If a decision is taken that  

in all cases medical negligence has to be proved on  

the  basis  of  expert  evidence,  in  that  event  the  

efficacy of the remedy provided under this Act will  

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be  unnecessarily  burdened  and  in  many  cases  such  

remedy would be illusory.  

14. In  the  instant  case,  RW-1  has  admitted  in  his  

evidence  that  the  patient  was  not  treated  for  

malaria.   Of  course  evidence  shows  that  of  the  

several injections given to the patient, only one was  

of  Lariago.  Apart  from  Lariago,  several  other  

injections  were  also  administered  on  the  patient.  

Lariago may be one injection for  treating malaria  

but the finding of Yashoda Hospital which has been  

extracted  above  shows  that  smear  for  malarial  

parasite  was  positive.  There  is  thus  a  definite  

indication of malaria, but so far as Widal test was  

conducted for Typhoid it was found negative. Even in  

such a situation the patient was treated for Typhoid  

and not for malaria and when the condition of the  

patient worsened critically, she was sent to Yashoda  

Hospital in a very critical condition with no pulse,  

no  BP  and  in  an  unconscious  state  with  pupils  

dilated. As a result of which the patient had to be  

put on a ventilator.  

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15. We do not think that in this case, expert evidence  

was necessary to prove medical negligence.  

16. The test of medical negligence which was laid down in  

Bolam vs.  Friern  Hospital  Management  Committee  reported in 1957 (2) All England Law Reports 118, has  

been accepted by this Court as laying down correct  

tests in cases of medical negligence.

17. Bolam  was  suffering  from  mental  illness  of  the  

depressive  type  and  was  advised  by  the  Doctor  

attached  to  the  defendants’  Hospital  to  undergo  

electro-convulsive  therapy.  Prior  to  the  treatment  

Bolam signed a form of consent to the treatment but  

was not warned of the risk of fracture involved. Even  

though  the  risk  was  very  small  and  on  the  first  

occasion when the treatment was given Bolam did not  

sustain  any  fracture  but  when  the  treatment  was  

repeated for the second time he sustained fractures.  

No relaxant drugs or manual control were used except  

that a male nurse stood on each side of the treatment  

couch throughout the treatment. About this treatment  

there  were  two  bodies  of  opinion,  one  of  which  

favoured the use of relaxant drugs or manual control  

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as a general practice, and the other opinion was for  

the use of drug that was attended by mortality risks  

and confined the use of relaxant drugs only to cases  

where there are particular reasons for their use and  

Bolam  case  was  not  under  that  category.  On  these  

facts the expert opinion of Dr. J.de Bastarrechea,  

consultant psychiatrist attached to the Hospital was  

taken. Ultimately the Court held the Doctors were not  

negligent. In this context the following principles  

have been laid down:

“A Doctor is not guilty of negligence if  he  has  acted  in  accordance  with  a  practice  accepted  as  proper  by  a  responsible body of medical men skilled  in  that  particular  art”…(See  page  122  placitum ‘B’ of the report)

18. It is also held that in the realm of diagnosis and  

treatment there is ample scope for genuine difference  

of  opinion  and  a  doctor  is  not  negligent  merely  

because  his  conclusion  differs  from  that  of  other  

professional men. It was also made clear that the  

true test for establishing negligence in diagnosis or  

treatment on the part of a doctor is whether he has  

been proved to be guilty of such failure as no doctor  

of ordinary skill would be guilty of if acting with  

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ordinary  care  (See  page  122,  placitum  ‘A’  of  the  

report).

19. Even though Bolam test was accepted by this Court as  

providing  the  standard  norms  in  cases  of  medical  

negligence,  in  the  country  of  its  origin,  it  is  

questioned on various grounds.  It has been found  

that the inherent danger in Bolam test is that if the  

Courts defer too readily to expert evidence medical  

standards would obviously decline. Michael Jones in  

his treaties on Medical Negligence (Sweet & Maxwell),  

Fourth Edition, 2008 criticized the Bolam test as it  

opts for the lowest common denominator. The learned  

author  noted  that  opinion  was  gaining  ground  in  

England that Bolam test should be restricted to those  

cases where an adverse result follows a course of  

treatment  which  has  been  intentional  and  has  been  

shown  to  benefit  other  patients  previously.   This  

should not be extended to certain types of medical  

accident merely on the basis of how common they are.  

It is felt “to do this would set us on the slippery  

slope of excusing carelessness when it happens often  

enough”  (See  Michael  Jones on  Medical  Negligence  

paragraph 3-039 at page 246).

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20. With the coming into effect of Human Rights Act, 1988  

from  2nd October,  2009  in  England,  the  State’s  

obligations under the European Convention on Human  

Rights (ECHR) are justiciable in the domestic courts  

of England. Article 2 of the Human Rights Act 1998  

reads as under:-

“Everyone’s right to life shall be protected  by law.  No one shall be deprived of his life  intentionally  save  in  the  execution  of  a  sentence of a court following his conviction  of a crime for which this penalty is provided  by law”.

21. Even though Bolam test ‘has not been uprooted’ it has  

come  under  some  criticism  as  has  been  noted  in  

Jackson & Powell on Professional Negligence (Sweet &  

Maxwell), Fifth Edition, 2002.  The learned authors  

have  noted  (See  paragraph  7-047  at  page  200  in  

Jackson & Powell) that there is an argument to the  

effect that Bolam test is inconsistent with the right  

to life unless the domestic courts construe that the  

requirement  to  take  reasonable  care  is  equivalent  

with the requirement of making adequate provision for  

medical care.  In the context of such jurisprudential  

thinking in England, time has come for this Court  

also to reconsider the parameters set down in Bolam  

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test as a guide to decide cases on medical negligence  

and  specially  in  view  of  Article  21  of  our  

Constitution which encompasses within its guarantee,  

a right to medical treatment and medical care. In  

England, Bolam test is now considered merely a ‘rule  

of practice or of evidence. It is not a rule of law’  

(See paragraph 1.60 in Clinical Negligence by Michael  

Powers  QC,  Nigel  Harris  and  Anthony  Barton,  4th  

Edition, Tottel Publishing). However as in the larger  

Bench of this Court in  Jacob Mathew vs.  State of  Punjab and another – (2005) 6 SCC 1, Chief Justice  Lahoti has accepted Bolam test as correctly laying  

down  the  standards  for  judging  cases  of  medical  

negligence, we follow the same and refuse to depart  

from it.

22. The  question  of  medical  negligence  came  up  before  

this Court in a decision in  Mathew (supra), in the  context of Section 304-A of Indian Penal Code.

23. Chief  Justice  Lahoti,  speaking  for  the  unanimous  

three-Judge  Bench  in  Mathew (supra), made a clear  distinction between degree of negligence in criminal  

law  and  civil  law  where  normally  liability  for  

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damages  is  fastened.  His  Lordship  held  that  to  

constitute negligence in criminal law the essential  

ingredient of ‘mens rea’ cannot be excluded and in  

doing so, His Lordship relied in the speech of Lord  

Diplock in  R. vs.  Lawrence, [(1981) 1 All ER 974].  The  learned  Chief  Justice  further  opined  that  in  

order to pronounce on criminal negligence it has to  

be established that the rashness was of such a degree  

as to amount to taking a hazard in which injury was  

most likely imminent.  The neat formulation by Lord  

Atkin in Andrews v. Director of Public Prosecutions,  [(1937) 2 All ER 552 (HL) at page 556] wherein the  

learned Law Lord delineated the concept of negligence  

in civil and criminal law differently was accepted by  

this Court.

24. Lord  Atkin  explained  the  shades  of  distinction  

between the two very elegantly and which is excerpted  

below:-

“Simple lack of care such as will constitute  civil liability is not enough. For purposes of  the  criminal  law  there  are  degrees  of  negligence,  and  a  very  high  degree  of  negligence is required to be proved before the  felony is established.”  

25. Chief Justice Lahoti also relied on the speech of  

Lord Porter in Riddell vs. Reid [(1943) AC 1 (HL)] to  

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further  identify  the  difference  between  the  two  

concepts and which I quote:-

“A higher degree of negligence has always been  demanded  in  order  to  establish  a  criminal  offence  than  is  sufficient  to  create  civil  liability.”  

[This  has  been  quoted  in  the  treatise  on  Negligence  by  Charlesworth and Percy (para 1.13)]

26. In  the  concluding  part  of  the  judgment  in  Mathew  (supra) in paragraph 48, sub-paras (5) and (6) the  

learned Chief Justice summed up as follows:-

“(5) The jurisprudential concept of negligence  differs in civil and criminal law. What may be  negligence in civil law may not necessarily be  negligence in criminal law. For negligence to  amount to an offence, the element of mens rea  must be shown to exist. For an act to amount  to  criminal  negligence,  the  degree  of  negligence should be much higher i.e. gross or  of a very high degree. Negligence which is  neither  gross  nor  of  a  higher  degree  may  provide a ground for action in civil law but  cannot form the basis for prosecution.

(6)  The  word  “gross”  has  not  been  used  in  Section 304-A IPC, yet it is settled that in  criminal law negligence or recklessness, to be  so held, must be of such a high degree as to  be “gross”. The expression “rash or negligent  act” as occurring in Section 304-A IPC has to  be read as qualified by the word “grossly”.”

27. After  laying  down  the  law,  as  above,  the  learned  

Chief  Justice  opined  that  in  cases  of  criminal  

negligence where a private complaint of negligence  

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against  a  doctor  is  filed  and  before  the  

investigating  officer  proceeds  against  the  doctor  

accused of rash and negligent act, the investigating  

officer  must  obtain  an  independent  and  competent  

medical  opinion  preferably  from  a  doctor  in  

Government  service,  qualified  in  that  branch  of  

medical practice. Such a doctor is expected to give  

an  impartial  and  unbiased  opinion  applying  the  

primary test to the facts collected in the course of  

investigation. Hon’ble Chief Justice suggested that  

some  statutory  rules  and  statutory  instructions  

incorporating certain guidelines should be issued by  

the Government of India or the State Government in  

consultation  with  the  Medical  Council  of  India  in  

this regard.  Till that is done, the aforesaid course  

should be followed. But those directions in paragraph  

52  of  Mathew  (supra) were  certainly  not  given  in  respect of complaints filed before the Consumer Fora  

under  the  said  Act  where  medical  negligence  is  

treated as civil liability for payment of damages.   

28. This  fundamental  distinction  pointed  out  by  the  

learned Chief Justice in the unanimous three-Judge  

Bench decision in  Mathew (supra) was unfortunately  

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not  followed  in  the  subsequent  two-Judge  Bench  of  

this  Court  in  Martin  F.  D’souza v.  Mohd.  Ishfaq,  reported in 2009 (3) SCC 1.  From the facts noted in  

paragraphs  17  and  18  of  the  judgment  in  D’souza  (supra),  it  is  clear  that  in  D’souza (supra)  complaint  was  filed  before  the  National  Consumer  

Disputes  Redressal  Commission  and  no  criminal  

complaint  was  filed.  The  Bench  in  D’souza (supra)  noted  the  previous  three-Judge  Bench  judgment  in  

Mathew  (supra) [paragraph 41 at pages 17-18 of the  report] but in paragraph 106 of its judgment, D’souza  (supra) equated a criminal complaint against a doctor  

or hospital with a complaint against a doctor before  

the Consumer Fora and gave the following directions  

covering cases before both.  Those directions are set  

out below:-

“We,  therefore,  direct  that  whenever  a  complaint  is  received  against  a  doctor  or  hospital  by  the  Consumer  Fora  (whether  District,  State  or  National)  or  by  the  criminal court then before issuing notice to  the  doctor  or  hospital  against  whom  the  complaint was made the Consumer Forum or the  criminal court should first refer the matter  to a competent doctor or committee of doctors,  specialised in the field relating to which the  medical  negligence  is  attributed,  and  only  after that doctor or committee reports that  there  is  a  prima  facie  case  of  medical  negligence should notice be then issued to the  doctor/hospital concerned. This is necessary  to avoid harassment to doctors who may not be  ultimately found to be negligent. We further  warn the police officials not to arrest or  

19

harass doctors unless the facts clearly come  within  the  parameters  laid  down  in  Jacob  Mathew  case,  otherwise  the  policemen  will  themselves have to face legal action.”

29. We are of the view that aforesaid directions are not  

consistent with the law laid down by the larger Bench  

in Mathew (supra).  In Mathew (supra), the direction  for consulting the opinion of another doctor before  

proceeding with criminal investigation was confined  

only  in  cases  of  criminal  complaint  and  not  in  

respect  of  cases  before  the  Consumer  Fora.   The  

reason why the larger Bench in Mathew (supra) did not  equate  the  two  is  obvious  in  view  of  the  

jurisprudential  and  conceptual  difference  between  

cases  of  negligence  in  civil  and  criminal  matter.  

This  has  been  elaborately  discussed  in  Mathew  (supra). This distinction has been accepted in the  

judgment of this Court in Malay Kumar Ganguly (supra)  (See paras 133 and 180 at pages 274 and 284 of the  

report).    

30. Therefore, the general directions in paragraph 106 in  

D’souza  (supra),  quoted  above  are,  with  great  respect, inconsistent with the directions given in  

20

paragraph  52  in  Mathew (supra)  which  is  a  larger  Bench decision.  

31. Those  directions  in  D’souza  (supra)  are  also  

inconsistent  with  the  principles  laid  down  in  

another three-Judge Bench of this Court rendered  

in  Indian  Medical  Association (supra)  wherein  a  three-Judge  Bench  of  this  Court,  on  an  exhaustive  

analysis of the various provisions of the Act, held  

that  the  definition  of  ‘service’  under  Section  

2(1)(o) of the Act has to be understood on broad  

parameters and it cannot exclude service rendered by  

a medical practitioner.

32.  About the requirement of expert evidence, this Court  

made it clear in  Indian Medical Association (supra)  that before the Fora under the Act both simple and  

complicated  cases  may  come.  In  complicated  cases  

which require recording of evidence of expert, the  

complainant may be asked to approach the civil court  

for  appropriate  relief.  This  Court  opined  that  

Section 3 of the Act provides that the provisions of  

the Act shall be in addition to and not in derogation  

of the provisions of any other law for the time being  

21

in force. Thus the Act preserves the right of the  

consumer to approach the civil court in complicated  

cases of medical negligence for necessary relief. But  

this  Court  held  that  cases  in  which  complicated  

questions do not arise the Forum can give redressal  

to an aggrieved consumer on the basis of a summary  

trial on affidavits.  The relevant observations of  

this Court are:

“...There may be cases which do not raise such  complicated  questions  and  the  deficiency  in  service may be due to obvious faults which can  be easily established such as removal of the  wrong limb or the performance of an operation  on the wrong patient or giving injection of a  drug to which the patient is allergic without  looking into the out-patient card containing  the  warning  [as  in  Chin  Keow v. Govt.  of  Malaysia,  1967  (1)  WLR  813(PC)]  or  use  of  wrong gas during the course of an anaesthetic  or leaving inside the patient swabs or other  items  of  operating  equipment  after  surgery.  One often reads about such incidents in the  newspapers.  The  issues  arising  in  the  complaints  in  such  cases  can  be  speedily  disposed of by the procedure that is being  followed  by  the  Consumer  Disputes  Redressal  Agencies and there is no reason why complaints  regarding deficiency in service in such cases  should  not  be  adjudicated  by  the  Agencies  under  the  Act.  In  complaints  involving  complicated  issues  requiring  recording  of  evidence of experts, the complainant can be  asked  to  approach  the  civil  court  for  appropriate relief. Section 3 of the Act which  prescribes  that  the  provisions  of  the  Act  shall be in addition to and not in derogation  of the provisions of any other law for the  time being in force, preserves the right of  

22

the consumer to approach the civil court for  necessary relief...”

33. A  careful  reading  of  the  aforesaid  principles  

laid  down  by  this  Court  in  Indian  Medical  Association (supra) makes the following position  clear:-

(a) There  may  be  simple  cases  of  medical  

negligence where expert evidence is not required.

(b) Those cases should be decided by the Fora  

under the said Act on the basis of the procedure  

which has been prescribed under the said Act.

(c) In complicated cases where expert evidence is  

required the parties have a right to go to the  

Civil Court.

(d) That right of the parties to go to Civil  

Court is preserved under Section 3 of the Act.

34. The  decision  in  Indian  Medical  Association  (supra) has been further explained and reiterated  

in another three judge Bench decision in  Dr. J.  

23

J. Merchant and others vs. Shrinath Chaturvedi  reported in (2002) 6 SCC 635.  

35. The  three  Judge  Bench  in  Dr.  J.  J.  Merchant  (supra) accepted the position that it has to be  

left to the discretion of Commission “to examine  

experts if required in an appropriate matter. It  

is equally true that in cases where it is deemed  

fit  to  examine  experts,  recording  of  evidence  

before  a  Commission  may  consume  time.  The  Act  

specifically  empowers  the  Consumer  Forums  to  

follow the procedure which may not require more  

time or delay the proceedings. The only caution  

required  is  to  follow  the  said  procedure  

strictly.” [para 19, page 645 of the report]

[Emphasis supplied]

36. 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  

Commission.  Therefore,  the  general  direction  

given  in  para  106  in  D’Souza (Supra)  to  have  24

expert  evidence  in  all  cases  of  medical  

negligence is not consistent with the principle  

laid down by the larger bench in paragraph 19 in  

Dr. J. J. Merchant (supra).

37. In  view  of  the  aforesaid  clear  formulation  of  

principles on the requirement of expert evidence  

only  in  complicated  cases,  and  where  in  its  

discretion,  the  Consumer  Fora  feels  it  is  

required the direction in paragraph 106, quoted  

above in D’souza (supra) for referring all cases  of medical negligence to a competent doctor or  

committee of doctors specialized in the field is  

a direction which is contrary to the principles  

laid down by larger Bench of this Court on this  

point.   In  D’souza (supra)  the  earlier  larger  Bench decision in Dr. J. J. Merchant (supra) has  not been noticed.  

38. Apart from being contrary to the aforesaid two  

judgments  by  larger  Bench,  the  directions  in  

paragraph 106 in D’souza (supra) is also contrary  

25

to the provisions of the said Act and the Rules  

which is the governing statute.

39. Those directions are also contrary to the avowed  

purposes of the Act. In this connection we must  

remember that the Act was brought about in the  

background  of  worldwide  movement  for  consumer  

protection. The Secretary General, United Nations  

submitted  draft  guidelines  for  consumer  

protection to the Economic and Social Council in  

1983. Thereupon on an extensive discussions and  

negotiations among various countries on the scope  

and content of such impending legislation certain  

guidelines  were  arrived  at.  Those  guidelines  

are:-

“Taking into account the interests and needs  of  consumers  in  all  countries,  particularly  those  in  developing  countries,  recognizing  that  consumers  often  face  imbalances  in  economic  terms,  educational  level  and  bargaining  power,  and  bearing  in  mind  that  consumer should have the right of access to  non-hazardous products, as well as importance  of promoting just, equitable and sustainable  economic  and  social  development,  these  guidelines  for  consumer  protection  have  the  following objectives:-

To  assist  countries  in  achieving  or  maintaining  adequate  protection  for  their  population as consumers.

26

To facilitate production and distribution  patterns responsive to the needs and desires  of consumers.  

To  encourage  high  levels  of  ethical  conduct for those engaged in the production  and  distribution  of  goods  and  services  to  consumers.   

To  assist  countries  in  curbing  abusive  business practices by all enterprises at the  national  and  international  levels  which  adversely affect consumers.

To  facilitate  the  development  of  independent consumer groups.

To  further  international  cooperation  in  the field of consumer protection.

To  encourage  the  development  of  market  conditions  which  provide  consumers  with  greater choice at lower prices.”

40. A  three-Judge  Bench  of  this  Court  in  State  of  Karnataka v.  Vishwabharathi  House  Building  Coop.  Society & Others, (2003) 2 SCC 412, referred to those  guidelines in paragraph 6. This Court further noted  

that  the  framework  of  the  Act  was  provided  by  a  

resolution dated 9.4.1985 of the General Assembly of  

the  United  Nations  Organization  known  as  Consumer  

Protection Resolution No. 39/248, to which India was  

a signatory.

41. After treating the genesis and history of the Act,  

this Court held that that it seeks to provide for  

greater protection of the interest of the consumers  

by providing a Fora for quick and speedy disposal of  

the grievances of the consumers.  These aspect of the  

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matter was also considered and highlighted by this  

Court in Lucknow Development Authority v. M.K. Gupta,  [(1994) 1 SCC 243], in Charan Singh v. Healing Touch  Hospital [(2000) 7 SCC 668] as also in the case of  Spring Meadows Hospital v. Harjol Ahluwalia [(1998) 4  SCC 39] and in the case of  India Photographic Co.  Ltd. v. H.D. Shourie [(1999) 6 SCC 428].

42. It is clear from the statement of objects and reasons  

of the Act that it is to provide a forum for speedy  

and  simple  redressal  of  consumer  disputes.  Such  

avowed legislative purpose cannot be either defeated  

or diluted by superimposing a requirement of having  

expert evidence in all cases of medical negligence  

regardless  of  factual  requirement  of  the  case.  If  

that is done the efficacy of remedy under the Act  

will be substantially curtailed and in many cases the  

remedy will become illusory to the common man.

43. In Spring Meadows (supra) this Court was dealing with  the case of medical negligence and held that in cases  

of gross medical negligence the principle of res ipsa  

loquitur can be applied.  In paragraph 10, this Court  

gave  certain  illustrations  on  medical  negligence  

28

where  the  principle  of  res  ipsa  loquitur can  be  

applied.

44. In  Postgraduate  Institute  of  Medial  Education  and  Research,  Chandigarh v.  Jaspal  Singh  and  others,  (2009) 7 SCC 330, also the Court held that mismatch  

in transfusion of blood resulting in death of the  

patient,  after  40  days,  is  a  case  of  medical  

negligence. Though the learned Judges have not used  

the  expression  res  ipsa  loquitur but  a  case  of  

mismatch  blood  transfusion  is  one  of  the  

illustrations given in various textbooks on medical  

negligence to indicate the application of  res ipsa  

loquitur.

45. In  the  treaties  on  Medical  Negligence  by  Michael  

Jones, the learned author has explained the principle  

of  res  ipsa  loquitur as essentially an evidential  

principle and the learned author opined that the said  

principle is intended to assist a claimant who, for  

no fault of his own, is unable to adduce evidence as  

to how the accident occurred.  The principle has been  

explained  in  the  case  of  Scott v.  London  &  St.  

29

Katherine Docks Co. [reported in (1865) 3 H & C.  596], by Chief Justice Erle in the following manner:-

“...where the thing is shown to be under the  management of the defendant or his servants,  and the accident is such as in the ordinary  course of things does not happen if those who  have  the  management  use  proper  care,  it  affords reasonable evidence, in the absence of  explanation  by  the  defendants,  that  the  accident arose from want of care”.

46. The learned author at page 314, para 3-146 of the  

book gave illustrations where the principles of  

res ipsa loquitur have been made applicable in the  

case  of  medical  negligence.   All  the  

illustrations  which  were  given  by  the  learned  

author  were  based  on  decided  cases.  The  

illustrations are set out below:-

• “Where a patient sustained a burn from a high  frequency  electrical  current  used  for  “electric  coagulation”  of  the  blood  [See  Clarke v. Warboys, The Times, March 18, 1952,  CA];

• Where gangrene developed in the claimant’s arm  following  an  intramuscular  injection  [See  Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42];

• When  a  patient  underwent  a  radical  mastoidectomy  and  suffered  partial  facial  

30

paralysis [See Eady v. Tenderenda (1974) 51  D.L.R. (3d) 79, SCC];

• Where the defendant failed to diagnose a known  complication of surgery on the patient’s hand  for Paget’s disease[See Rietz v. Bruser (No.2)  (1979) 1 W.W.R. 31, Man QB.];

• Where  there  was  a  delay  of  50  minutes  in  obtaining expert obstetric assistance at the  birth of twins when the medical evidence was  that  at  the  most  no  more  than  20  minutes  should elapse between the birth of the first  and the second twin [See Bull v. Devon Area  Health Authority (1989), (1993) 4 Med. L.R.  117 at 131.];

• Where,  following  an  operation  under  general  anaesthetic, a patient in the recovery ward  sustained brain damage caused by bypoxia for a  period of four to five minutes [See Coyne v.  Wigan Health Authority {1991) 2 Med. L.R. 301,  QBD];

• Where,  following  a  routine  appendisectomy  under  general  anaesthetic,  an  otherwise  fit  and healthy girl suffered a fit and went into  a permanent coma [See Lindsey v. Mid-Western  Health Board (1993) 2 I.R. 147 at 181];

• When a needle broke in the patient’s buttock  while  he  was  being  given  an  injection  [See  Brazier v. Ministry of Defence (1965) 1 Ll.  Law Rep. 26 at 30];

• Where a spinal anaesthetic became contaminated  with disinfectant as a result of the manner in  which it was stored causing paralysis to the  patient [See Roe v. Minister of Health (1954)  2 Q.B. 66. See also Brown v. Merton, Sutton  and Wandsworth Area Health Authority (1982) 1  All E.R. 650];

31

• Where  an  infection  following  surgery  in  a  “well-staffed  and  modern  hospital”  remained  undiagnosed  until  the  patient  sustained  crippling injury [See Hajgato v. London Health  Association (1982) 36 O.R. (2d) 669 at 682];  and

• Where an explosion occurred during the course  of  administering  anaesthetic  to  the  patient  when the technique had frequently been used  without any mishap [Crits v. Sylvester (1956)  1 D.L.R. (2d) 502].”

47. In  a  case  where  negligence  is  evident,  the  

principle of  res ipsa loquitur operates and the  

complainant does not have to prove anything as  

the thing (res) proves itself. In such a case it  

is for the respondent to prove that he has taken  

care and done his duty to repel the charge of  

negligence.

48. If  the  general  directions  in  paragraph  106  in  

D’souza (supra)  are  to  be  followed  then  the  doctrine of res ipsa loquitur which is applied in  

cases  of  medical  negligence  by  this  Court  and  

also by Courts in England would be redundant.

32

49. In view of the discussions aforesaid, this Court  

is constrained to take the view that the general  

direction  given  in  paragraph  106  in  D’souza  (supra) cannot be treated as a binding precedent and  

those directions must be confined to the particular  

facts of that case.

50. With great respect to the Bench which decided D’souza  (supra)  this  Court  is  of  the  opinion  that  the  

directions in D’souza (supra) are contrary to (a) the  law  laid  down  in  paragraph  37  of  Indian  Medical  Association (supra), (b) and paragraph 19 in Dr. J.J.  Merchant (supra),      (c)  those  directions  in  paragraph  106  of  D’souza (supra)  equate  medical  negligence in criminal trial and negligence fastening  

civil liability whereas the earlier larger Bench in  

Mathew (supra) elaborately differentiated between the  two concepts, (d) Those directions in D’souza (supra)  are contrary to the said Act which is the governing  

statute,  (d) those directions are also contrary to  

the avowed purpose of the Act, which is to provide a  

speedy  and  efficacious  remedy  to  the  consumer.  If  

those general directions are followed then in many  

cases  the  remedy  under  the  said  Act  will  become  

33

illusory,  (f)  those  directions  run  contrary  to  

principle of ‘Res ipsa loquitur’ which has matured  

into  a  rule  of  law  in  some  cases  of  medical  

negligence where negligence is evident and obvious.

51. When  a  judgment  is  rendered  by  ignoring  the  

provisions  of  the  governing  statute  and  earlier  

larger Bench decision on the point such decisions are  

rendered  ‘Per  incuriam’.  This  concept  of  ‘Per  

incuriam’  has  been  explained  in  many  decisions  of  

this  Court.  Justice  Sabyasachi  Mukharji  (as  his  

Lordship then was) speaking for the majority in the  

case  of  A.R.  Antulay vs.  R.S.  Nayak  and  another  reported in (1988) 2 SCC 602 explained the concept in  

paragraph 42 at page 652 of the report in following  

words:-

“Per incuriam” are those decisions given in  ignorance  or  forgetfulness  of  some  inconsistent  statutory  provision  or  of  some  authority binding on the court concerned, so  that in such cases some part of the decision  or some step in the reasoning on which it is  based,  is  found,  on  that  account  to  be  demonstrably wrong.

52. Subsequently  also  in  the  Constitution  Bench  

judgment of this Court in Punjab Land Development  

34

and  Reclamation  Corporation  Ltd.,  Chandigarh vs.  Presiding  Officer,  Labour  Court,  Chandigarh  and  others reported in (1990) 3 SCC 682, similar views  were expressed in paragraph 40 at page 705 of the  

report.  

53. The two-Judge Bench in D’souza has taken note of the  decisions in  Indian Medical Association and  Mathew,  but even after taking note of those two decisions,  

D’souza (supra)  gave  those  general  directions  in  paragraph 106 which are contrary to the principles  

laid down in both those larger Bench decisions. The  

larger Bench decision in  Dr. J.J. Merchant (supra)  has not been noted in  D’souza (supra).  Apart from  that,  the  directions  in  paragraph  106  in  D’souza  (supra)  are  contrary  to  the  provisions  of  the  

governing  statute.  That  is  why  this  Court  cannot  

accept  those  directions  as  constituting  a  binding  

precedent  in  cases  of  medical  negligence  before  

consumer Fora. Those directions are also inconsistent  

with the avowed purpose of the said Act.

35

54. This Court however makes it clear that before the  

consumer Fora if any of the parties wants to adduce  

expert evidence, the members of the Fora by applying  

their mind to the facts and circumstances of the case  

and the materials on record can allow the parties to  

adduce such evidence if it is appropriate to do so in  

the facts of the case. The discretion in this matter  

is  left  to  the  members  of  Fora  especially  when  

retired judges of Supreme Court and High Court are  

appointed to head National Commission and the State  

Commission respectively. Therefore, these questions  

are to be judged on the facts of each case and there  

cannot be a mechanical or strait jacket approach that  

each and every case must be referred to experts for  

evidence. When the Fora finds that expert evidence is  

required, the Fora must keep in mind that an expert  

witness  in  a  given  case  normally  discharges  two  

functions. The first duty of the expert is to explain  

the technical issues as clearly as possible so that  

it  can  be  understood  by  a  common  man.  The  other  

function is to assist the Fora in deciding whether  

the acts or omissions of the medical practitioners or  

the hospital constitute negligence. In doing so, the  

expert can throw considerable light on the current  

36

state of knowledge in medical science at the time  

when the patient was treated. In most of the cases  

the question whether a medical practitioner or the  

hospital is negligent or not is a mixed question of  

fact and law and the Fora is not bound in every case  

to  accept  the  opinion  of  the  expert  witness.  

Although, in many cases the opinion of the expert  

witness may assist the Fora to decide the controversy  

one way or the other.

55.  For the reasons discussed above, this Court holds  

that it is not bound by the general direction given  

in  paragraph  106  in  D’souza (supra).  This  Court  further holds that in the facts and circumstances of  

the case expert evidence is not required and District  

Forum rightly did not ask the appellant to adduce  

expert  evidence.  Both  State  Commission  and  the  

National Commission fell into an error by opining to  

the contrary. This Court is constrained to set aside  

the orders passed by the State Commission and the  

National Commission and restores the order passed by  

the District Forum.  The respondent no.1 is directed  

to pay the appellant the amount granted in his favour  

by the District Forum within ten weeks from date.   

37

56.  The appeal is thus allowed with costs assessed at  

Rs.10,000/- to be paid by the respondent No.1 to the  

appellant within ten weeks.

.....................J. (G.S. SINGHVI)

.....................J. (ASOK KUMAR GANGULY)

New Delhi March 8, 2010

38