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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 Petitioner Mrs. Seema Kumari (hereinafter referred to as the “Complainant”) against the Impugned Order dated 18.05.2018 passed by State Consumer Disputes Redressal Commission, Bihar (for short “the State Commission”) in First Appeal No. 345 of 2016 which was filed against Order dated 09.09.2016 passed by District Consumer Disputes Redressal Forum, Khagaria in Complaint No. 85/2015.
Heard the arguments from the learned Counsel for both the sides. Perused the material on record inter-alia the Orders of District Forum and State Commission.
The District Forum held the Opposite Party liable for Medical Negligence and allowed the Complaint.
The Doctor (OP) filed the Appeal before the State Commission which was allowed. The relevant observations of the State Commission are reproduced as below:-
“…5. Since the matter in this case relates to allegation of defective medical treatment by appellant doctor, in light of settled position of law laid down by the Apex Court in case of Medical Negligence, we are of the clear opinion that to hold existence of negligence associated with the action inaction of a medical professional it requires an expert opinion on the matter as an evidence to prove the same. The respondent / complainant has not adduced any such medical expert opinion in support of her allegations to show as to what should have been done by OP Doctor, the allegations of the Complainant/Respondent that the appellant doctor provided defective and careless treatment/operation to Complainant is not established.
…6. It appears that the District Forum failed to consider then above settled position of law and erroneously passed the impugned Order, holding the Appellant/ OP Doctor for deficiency in service, which is not valid and sustainable under the law. It is thus set aside. We find merit in this appeal.”
In my view, the State Commission allowed the Appeal mechanically and dismissed the Complaint filed before District Forum, by holding that there was no expert evidence adduced by the Complainant. The State Commission has not discussed the merit of the instant case.
It should be borne in mind that in each and every case of alleged medical negligence, there is no absolute need for an expert opinion and it is not mandatory. This view dovetails from the judgements of the Hon’ble Apex court viz. Indian Medical Assn. vs. V.P. Shantha[1995) 6 SCC 651], Jacob Mathew vs. State of Punjab[(2005) 6 SCC 1], & J.J. Merchant (Dr.) vs. Shrinath Chaturvedi[(2002) 6 SCC 635].
The Hon’ble Supreme Court further discussed on the issue of expert opinion, in the case of V. Kishan Rao vs. Nikhil Super speciality[(2010) 5 SCC 513]. It was held that in each and every matters, no mechanical approach to be followed by the Fora. Each case has to be judged on its own facts. It was held in its para 56 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), the Order of the State Commission is hereby set-aside and the matter is remitted back to the State Commission to decide the appeal afresh on the merits and to pass the reasoned Order.
The Revision Petition is allowed.
Both the Parties are directed to appear before the State Commission for further proceeding on 12.10.2022.
Registry is directed to send the Copy of this Order to the Parties and State Commission immediately by speed post and e-mail.