AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. S.M. Kantikar, Presiding Member
This Revision Petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the Petitioners - Dr. Saurabh Ambadekar & Dr. Pankaj Bagde (hereinafter referred to as the “Opposite Parties”) against the impugned Order dated 15.01.2021 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench, Nagpur (for short “the State Commission”) in First Appeal No. RBT 228/2019, whereby the State Commission returned the application of Appointment of the Medical Expert for Medico Legal without passing any Order.
The issue relates to whether Expert Opinion can be taken in the Appellate Stage.
Heard the learned Counsel for the Petitioners. The District Forum determined the negligence upon the OPs / Petitioners and allowed the Complaint.
Being aggrieved by the Order of the District Forum, the Opposite Parties /Petitioners filed First Appeal No. RBT – 228/2019 before the State Commission (Circuit Bench Nagpur), Maharashtra. During pendency of the Appeal, the Appellants / OPs filed an application for referring the matter to Expert medical opinion. The State Commission dismissed / rejected the said application holding that “There is no provision to entertain such application during the pendency of appeal.”
Being aaggrieved by the Order of the State Commission, the Petitioners/ Opposite Parties preferred this Revision Petition.
I have perused the application filed by the Opposite Parties before the State Commission. The grounds taken for need of expert medical opinion are that it is mandatory for Consumer Forum to call for expert medical opinion in the cases of the Medical Negligence. The OPs relied upon Martin F. D’Souza V. Mohd. Ishfaq case [I (2009) CPJ 32 (SC)].
The Hon’ble Supreme Court, in its few judgements, discussed on the issue of expert opinion namely ‘Indian Medical Assn. v. V.P. Shantha’[ (1995) 6 SCC 651], ‘Jacob Mathew v. State of Punjab’[ (2005) 6 SCC 1], & ‘J.J. Merchant (Dr.) v. Shrinath Chaturvedi’[ (2002) 6 SCC 635]. In 2010, in the case of ‘V. Kishan Rao v. Nikhil Super speciality’[(2010) 5 SCC 513], it held the Martin D’Souza case as “Per Incurium” with the following observation:
“55. 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”.
In the same case, the Hon’ble Supreme Court further held that in each and every matter, no mechanical approach to be followed by the fora. Each case has to be judged on its own facts. In its para 56, it was held as:
“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”.
Based on the foregoing discussion and relying upon the decisions of the Hon’ble Supreme Court (Supra), I do not find any error of the State Commission while rejecting the application filed by the petitioner for seeking Expert Opinion. However, the State Commission, at any stage of the arguments, can seek an expert opinion, if necessary.
The Revision Petition is dismissed.
The Parties are directed to appear before the State Commission for further proceeding on the date fixed.
The Registry is directed to send a Copy of this Order to the Parties and to the State Commission by e-mail within 2 days.