REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.

5991 OF 2002

Ramesh Chandra Agrawal Versus Regency Hospital Ltd. & Ors.

.. Appellant

..Respondents

JUDGMENT H.L. Dattu, J. This appeal is directed against the order passed by ational Consumer !isputes Redressal Commission" $%& o' $(() dated %*.+.%,,%. ew !elhi in Original #etition -y the impugned order o.

ational

Consumer Commission has re.ected the petition 'iled by the complainant. %/ The 'acts in brie' are as under0 The appellant1complainant was a teacher by pro'ession. He was aged about ), years when he was down with physical ailments such as

bac2ache and di''iculty in wal2ing as a result o' progressi3e wea2ness o' both his lower limbs. As the problem worsened" on %,.$$.$((+" the appellant approached Regency Hospital Ltd. 4Respondent o. $/" 'or

5edical chec26up. On the same day" C.T. 7can was done and he was diagnosed as a patient o' 8!orsol Cord Compression !96!) #ott:s spine; which in simple terms means that T.-. in'ection has spread till his 3ertebra. On the same day he was ad3ised to get operated 'or decompression o' spinal cord by Laminectomy D-3 to D-6. The operation was per'ormed by !r. Atul 7ahay 4Respondent o.%/ on

%+.$$.$((+. <t is asserted" that" a'ter the operation" the condition o' the appellant deteriorated 'urther and it was re3ealed 'rom the 5R< scan that the operation was not success'ul as it was not done at the right le3el. <t is also stated that the case summary and the 5R< reports suggest that the problem was aggra3ated and there was need 'or another operation. !r.<. .Va.payee 4respondent no.*/ was consulted on $%.$%.$((+ and he per'ormed the operation on the same day. =3en a'ter the second operation the in'ection was not cured and this 'orced him to re'er his case to Vidya 7agar <nstitute o' 5ental Health and eurological 7ciences" ew !elhi 4V<5HA 7/ 'or 'urther treatment.

<t is 'urther stated" that" the third operation was pre'ormed and it

pro3ided the appellant some relie'" but le't him handicapped due to his legs being rendered useless and loss o' control o3er his -ladder mo3ement.
*/ COMPLAINT BEFORE
THE

NATIONAL COMMISSION

The appellant" being ational

impaired by the treatment" 'iled a complaint be'ore the

Consumer !isputes Redressal Commission 4hereina'ter re'erred as 8 ational Commission;/ alleging medical negligence on the part o' respondents $ to *. The claim o' the appellant be'ore the under 0
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ational Commission was as

That the correct method o' operating his in'ection was the Antero-Lateral Decompression (ALD) and not Laminectomy. That the complainant1appellant contends that he was 2ept only 'or one wee2 on the Anti6Tubercular drugs be'ore the surgery which is a much shorter duration than the accepted medical practice. That there was no re>uirement o' immediate surgery. That the respondent no.%" who was a eurosurgeon did not consult the Orthopedic surgeon" e3en though he was not capable to handle the case o' complainant1appellant without consulting Orthopedic surgeon.

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Hence" it was claimed that there is gross negligence and carelessness on the part o' the respondents in treating the complainant1appellant"

and there'ore" respondents be directed to pay a sum o' Rs. %%",,",,,16 with interest at the rate o' %9? per annum to the complainant. !" NATIONAL COMMISSION JUDGMENT A'ter considering the case presented by the appellant and the respondents and loo2ing through the a''ida3its 'iled by the parties" the ational Commission has come to the conclusion that medical negligence is not pro3ed against the respondents. The Commission has concluded0 85edical negligence is when a doctor did something which he ought not to ha3e done or did not do what he ought to ha3e done. The doctors were >uali'ied pro'essionals. They did whate3er was re>uired to be done o' euro67urgeons. <n 'act" we 'ind the complainant:s de'icient" who neither appeared 'or cross e@amination nor produced any literature in support o' this case to be o' any assistance to this Commission. +/ Aeeling aggrie3ed by the decision" the appellant has 'iled this appeal under 7ection %* o' the Consumer #rotection Act" $(&).
)/ C#$t%$t&#$ &$ t'% A((%a) 0

<t is the contention o' the appellant that it was due to non6compliance o' the order o' ational Commission by the Registry o' ational

Commission" the Commission did not ha3e the bene'it o' the e@pert opinion to arri3e at a conclusion" as to whether there was any negligence o' the doctors who treated the appellant. <t is 'urther
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contended that pursuant to the order passed by the Commission dated +.$.%,,," the appellant had submitted all the records relating to his treatment on 9.%.%,,, and had re>uested the Registry o' the Commission to 'orward the same to !r. A.B. 7ingh" eurologist" who had been re>uested to o''er his opinion on the surgery done to the appellant. Howe3er" the Registry had not sent the documents

'urnished by the appellant to the e@pert and" there'ore" the e@pert could not o''er his opinion and thereby" the appellant was denied the bene'it o' ha3ing an opinion which would ha3e pro3ed his case be'ore the Commission. C/ The respondents in their counter a''ida3it 'iled be'ore this court" ha3e denied the assertions and allegations made by the appellants and 'urther .usti'ied the .udgment o' the ational Commission. &/ (/ De ha3e heard the learned counsel 'or the parties to the lis. POTT*S DISEASE AND PROTOCOL OF TREATMENT i) The Disease #ottEs disease results 'rom an in'ection o' the bone by the 5ycobacterium Tuberculosis bacteria 3ia a combination o'

hematogenous root and lymphatic drainage. The organism may stay dormant in the s2eletal system 'or an e@tended period o' time be'ore the disease can be detected.
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<n #ottEs disease" the spinal cord may become in3ol3ed in a compression by bony elements and1or e@panding abscess or by direct in3ol3ement o' cord and leptomeninges by granulation tissue. Through e@perimentations it is 'ound that the golden standard o' the diagnosis in patients is CT guided needle aspiration

biopsy.FAssistance ta2en 'rom the websiteG &&" Diagnosis At present" the treatment o' #ottEs disease remains contro3ersial. 7ome ad3ocate conser3ati3e treatment with late spinal 'usion and others early spinal 'usion 'ollowed by conser3ati3e treatment 7urgical treatment should include anti6T- medication" abscess decompression. The anterior surgical approach is chosen 'or cer3ical and lumbar regions. Anterior spinal 'usions is currently thought to be the best surgical ad.unct to a'ter atleast $& months o' anti6T- chemotherapy. The di''erential diagnosis o' lower bac2 pain is complicated by the number o' possible causes and the patientEs reaction to the discom'ort. <n many cases the patientEs perception o' bac2 pain is in'luenced by poor6>uality sleep or emotional issues related to occupation or 'amily matters. A primary care doctor will begin by ta2ing a care'ul medical and occupational history" as2ing about the onset o' the pain as well as

its location and other characteristics. -ac2 pain associated with the lumbar spine 3ery o'ten a''ects the patientEs ability to mo3e" and the muscles o3erlying the a''ected 3ertebrae may 'eel sore or tight. #ain resulting 'rom hea3y li'ting usually begins within %9 hours o' the o3ere@ertion. 5ost patients who do not ha3e a history o' chronic pain in the lower bac2 'eel better a'ter 9& hours o' bed rest with pain medication and either a heating pad or ice pac2 to rela@ muscle spasms. <' the patientEs pain is not helped by rest and other conser3ati3e treatments" he or she will be re'erred to an orthopedic surgeon 'or a more detailed e3aluation. An orthopedic e3aluation includes a ('+,&-a) %.a/&$at&#$ " neurological wor2up" and imaging studies. &&& Conservative treatments 7urgery 'or lower bac2 pain is considered a treatment o' last resort" with the e@ception o' cauda e>uina syndrome. #atients should always try one or more conser3ati3e approaches be'ore consulting a surgeon about a laminectomy. Fhttp011www.surgeryencyclopedia.com1Ai6

La1Laminectomy .htmlG $,/ CLEAVAGE OF OPINION

7ince medical science is complicated" e@pert opinion pro3ides deep insight. 47ee 5alay Bumar Hanguly 3s. !r. 7u2umar 5u2her.ee and
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Ors./ FCriminal Appeal

os. $$($6$$(9 o' %,,+ alongwith Ci3il

Appeal o. $C%C o' %,,C" decided on C.&.%,,(G. <t is clear that diagnosis and the method o' treatment suggested to a patient o' #ott:s disease 3ary. The nature o' disease is such that there e@ist di''erence in the identi'ication o' the symptoms and also the protocol o' treatment to cure the disease. There'ore" the e@pert opinion 'orms an important role in arri3ing at conclusion. $$/ E0PERT OPINION The law o' e3idence is designed to ensure that the court considers only that e3idence which will enable it to reach a reliable conclusion. The 'irst and 'oremost re>uirement 'or an e@pert e3idence to be admissible is that it is necessary to hear the e@pert e3idence. The test is that the matter is outside the 2nowledge and e@perience o' the lay person. Thus" there is a need to hear an e@pert opinion where there is a medical issue to be settled. The scienti'ic >uestion in3ol3ed is assumed to be not within the court:s 2nowledge. Thus cases where the science in3ol3ed" is highly specialiIed and perhaps e3en esoteric" the central role o' e@pert cannot be disputed. The other re>uirements 'or the admissibility o' e@pert e3idence are0 i/ ii/ that the e@pert must be within a recogniIed 'ield o' e@pertise that the e3idence must be based on reliable principles" and

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that the e@pert must be >uali'ied in that discipline.

F7ee =rrors" 5edicine and the Law" Alan 5erry and Ale@ander 5cCall 7mith" %,,$ ed." Cambridge Jni3ersity #ress" p.$C&G $%/ 7ection 9+ o' the <ndian =3idence Act spea2s o' e@pert e3idence. <t reads as under0 89+. Opinions of experts - When the Court has to form an opinion upon a point of foreign la ! or of science! or art! or as to i"entity of han" riting or finger-impressions! the opinions upon that point of persons specially s#ille" in such foreign la ! science or art! or in $uestions as to i"entity of han" riting or finger impressions! are rele%ant facts. &uch person calle" experts. 'llustrations (a) (he $uestion is! hether the "eath of A as cause" )y poison. (he opinions of experts as to the symptoms pro"uce" )y the poison )y hich A is suppose" to ha%e "ie"! are rele%ant. ()) (he $uestion is hether A! at the time of "oing a certain act! as )y reason of unsoun"ness of min"! in capa)le of #no ing the nature of the act! or that he as "oing hat as either rong or contrary to la . (he opinions of experts upon the $uestion hether the symptoms exhi)ite" )y A commonly sho unsoun"ness of min"! an" hether such unsoun"ness of min" usually ren"ers persons incapa)le of #no ing the nature of the acts hich they "o! or #no ing that hat they "o is either rong or contrary to la ! are rele%ant. (c) (he $uestion is! hether a certain "ocument as ritten )y A. Another "ocument is pro"uce" hich is pro%e" or a"mitte" to ha%e )een ritten )y A. (he opinion of experts on the $uestion hether the t o "ocuments ere ritten )y the same person or )y "ifferent persons are rele%ant.;
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The importance o' the pro3ision has been e@plained in the case o' &tate of *.+. %. ,ai Lal an" Ors.!-(.///) 0 &CC 1234. <t is held" that"
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7ection 9+ o' the =3idence Act which ma2es opinion o' e@perts admissible lays down" that" when the court has to 'orm an opinion upon a point o' 'oreign law" or o' science" or art" or as to identity o' handwriting or 'inger impressions" the opinions upon that point o' persons specially s2illed in such 'oreign law" science or art" or in >uestions as to identity o' handwriting" or 'inger impressions are rele3ant 'acts. There'ore" in order to bring the e3idence o' a witness as that o' an e@pert it has to be shown that he has made a special study o' the sub.ect or ac>uired a special e@perience therein or in other words that he is s2illed and has ade>uate 2nowledge o' the sub.ect.
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<t is not the pro3ince o' the e@pert to act as Kudge or Kury. <t is stated in (itli %. ,ones 4A<R $(*9 All %*C/ that the real 'unction o' the e@pert is to put be'ore the court all the materials" together with reasons which induce him to come to the conclusion" so that the court" although not an e@pert" may 'orm its own .udgment by its own obser3ation o' those materials.

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An e@pert is not a witness o' 'act and his e3idence is really o' an ad3isory character. The duty o' an e@pert witness is to 'urnish the Kudge with the necessary scienti'ic criteria 'or testing the accuracy o'

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the conclusions so as to enable the Kudge to 'orm his independent .udgment by the application o' these criteria to the 'acts pro3ed by the e3idence o' the case. The scienti'ic opinion e3idence" i' intelligible" con3incing and tested becomes a 'actor and o'ten an important 'actor 'or consideration along with other e3idence o' the case. The credibility o' such a witness depends on the reasons stated in support o' his conclusions and the data and material 'urnished which 'orm the basis o' his conclusions. 47ee 5alay Bumar Hanguly 3s. !r. 7u2umar 5u2her.ee and Others/ FCriminal Appeal $$($6$$(9 o' %,,+ alongwith Ci3il Appeal decided on C.&.%,,(G.
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o. $C%C o' %,,C"

<n the case o' 7tate o' 5aharashtra 3. !amu s1o Hopinath 7hinde and others." FA<R %,,, 7C $)($ at page $C,,G" it has been laid down that without e@amining the e@pert as a witness in Court" no reliance can be placed on an opinion alone. <n this regard" it has been obser3ed in The 7tate 4!elhi Administration/ 3. #ali Ram" FA<R $(C( 7C $9G that 8no e@pert would claim today that he could be absolutely sure that his opinion was correct" e@pert depends to a great e@tent upon the materials put be'ore him and the nature o' >uestion put to him.;

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<n the Article 8Rele3ancy o' =@pert:s Opinion; it has been opined that the 3alue o' e@pert opinion rest on the 'acts on which it is based and his competency 'or 'orming a reliable opinion. The e3identiary 3alue o' the opinion o' e@pert depends on the 'acts upon which it is based and also the 3alidity o' the process by which the conclusion is reached. Thus the idea that is proposed in its cru@ means that the importance o' an opinion is decided on the basis o' the credibility o' the e@pert and the rele3ant 'acts supporting the opinion so that its accuracy can be cross chec2ed. There'ore" the emphasis has been on the data on basis o' which opinion is 'ormed. The same is clear 'rom 'ollowing in'erence0 85ere assertion without mentioning the data or basis is not e3idence" e3en i' it comes 'orm e@pert. Dhere the e@perts gi3e no real data in support o' their opinion" the e3idence e3en though admissible" may be e@cluded 'rom consideration as a''ording no assistance in arri3ing at the correct 3alue.;

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Though we ha3e ad3erted to the nature o' disease and the rele3ancy o' the e@pert opinion" we do not thin2 it necessary to go into the merits o' the case in 3iew o' the course we propose to adopt" and in 3iew o' the 'act that the Commission is the last 'act 'inding authority in the scheme o' the Act.

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The Commission by its order dated ).*.%,,, had re>uested !r. A. B. 7ingh" eurologist" to gi3e his opinion on the surgery done in this

case. <t was also ordered that all the records o' the surgery will be submitted by the complainant to the Registrar o' the Commission to enable him to 'orward it to !r. A. B. 7ingh" along with the complaint and also the a''ida3its 'iled on behal' o' the respondents. !r. A. B. 7ingh will ma2e himsel' 'amiliar with the complaint and the records and then gi3e his opinion. %,/ The Assistant Registrar by his letter dated $%.).%,,," 'orwarded the original records o' the present case to !r. A. B. 7ingh. On $(.&.%,,," !r. A. B. 7ingh submitted his report to the Assistant Registrar with the 'indings that0 8A'ter care'ul scrutiny o' the documents now made a3ailable to me" < 'ind that the current situation as regards these 3ital and missing documentary e3idences is as 'ollows0 a/ o original L6Ray 'ilms" o' 3arious radiological e@aminations were enclosed either in original 'orm or in the 'orm o' copies. b/ c/ o details o' 'indings at surgery are pro3ided. o details o' operati3e 'indings ha3e been pro3ided. Only the surgical procedure carried out has been mentioned. o details o' any subse>uent neurological1neuro6 radiological assessment ha3e been pro3ided.
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<n 3iew o' the 'oregoing" < 'eel that no much additional in'ormation" o3er and abo3e what had originally been pro3ided to me by !r. Atul 7ahai" has been made a3ailable now 'or me to substantially re3ise my opinion earlier. <" there'ore" stand by my earlier opinion re'erred to abo3e.; %$/ The appellant on $C.(.%,,$" again 'iled an application be'ore the Commission 'or re'erring the matter to eminent doctor 'or his opinion. <t was stated that the e@pert had at many places stated that he would ha3e been in a better position to e@amine the matter i' he was made a3ailable the L6Rays and 5R< reports etc. <n>uiries 'rom the o''ice o' Commission re3ealed that the o''ice o' the Commission" by mista2e" 'orgot to 'orward the original record to !r. A. B. 7ingh and as a result thereo'" !r. A. B. 7ingh was depri3ed o' the opportunity o' perusing the same be'ore submitting his opinion in the matter. <n this way" the case o' the appellant was se3erely pre.udiced as without these records it was not possible 'or an e@pert to gi3e de'inite and correct opinion in the matter. %%/ The Commission by its order dated %%.$$.%,,$ re.ected the application o' the appellant stating that !r A. B. 7ingh had submitted his report as 'ar bac2 as on $(.&.%,,, and it is not understandable as to why this application should ha3e been 'iled at such a later stage.

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The Commission in course o' its .udgment has obser3ed 8that in spite o' opportunity being gi3en" the complainant and his wi'e did not o''er themsel3es 'or the cross e@amination and they ha3e 'ailed to supply material to !r. A. B. 7ingh as mentioned in his report dated $(.,&.%,,," which could ha3e enabled him to gi3e a more complete report. Also no e3idence o' any e@pert was led by the appellant. Aor that matter none o' the parties 'iled any literature on the sub.ect to support their contentions in spite o' gi3ing them an opportunity.;

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<n the present case" the appellant had 'iled all the records o' the treatment be'ore the Commission. The Assistant Registrar" due to o3ersight" did not send the original records and L6Ray 'ilms to the e@pert. Thus" it was the Assistant Registrar o' the Commission who had 'ailed to per'orm the duty diligently. !ue to the non6a3ailability o' 3ital and important in'ormation" the e@pert was handicapped in gi3ing his opinion on the basis o' which the order o' the Commission was to be passed. <t is 3ery much clear 'rom the report o' !r. A. B. 7ingh dated $(.&.%,,," that he would ha3e been in a better position i' certain documents would ha3e been made a3ailable to him. The appellant had also 'iled an application be'ore the Commission dated

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$C.(.%,,$" bringing to the notice o' the Commission the lac2 o' care shown by the Assistant Registrar" who had 'ailed to 'orward the records o' the treatment to the e@pert" and had re>uested to send the records 'or reconsideration. This application was re.ected by the Commission holding that the reconsideration o' the e@pert opinion at this stage is not necessary. %+/ The Commission while rendering its .udgment has 'ailed to appreciate that in such cases e@pert would not be in a position to 'orm a true opinion i' all the documents pertaining to the matter" on which the opinion is desired" are made a3ailable to him. The Commission on the application made by the appellant should ha3e again directed 'or the e@pert opinion a'ter ma2ing all the records o' the treatment a3ailable to the e@pert. The appellant should not su''er 'or the negligence o' the Assistant Registrar and also when the Commission has itsel' stated in its .udgment that supply o' material to !r. A. B. 7ingh could ha3e enabled him to gi3e a more complete report. %)/ <t is important to note that the appellant had brought to the notice o' ational Commission" the lac2 o' care shown by the Assistant Registrar" who had 'ailed to 'orward the records o' the treatment to

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the e@pert" by 'iling an application be'ore the Commission dated $C.(.%,,$. This application was re.ected by the Commission holding that the reconsideration o' the e@pert opinion at this stage is not necessary. <n our 3iew" the principles o' atural Kustice re>uire that a 'air opportunity should be gi3en to the complainant to pro3e his claim based on the report o' the e@pert. 7ince that opportunity is denied to the appellant" the impugned order passed by Commission cannot be sustained. %C/ <n 3iew o' the abo3e discussion" appeal re>uires to be allowed and" accordingly" it is allowed. The impugned order is set aside. The Registrar o' the Commission is directed to 'orward all the records o' the treatment 'iled by the appellant be'ore the Commission to !r. A. B. 7ingh" eurologist" who is now wor2ing at Aortis Hospital" ational

oida" 'or his e@pert opinion within one month 'rom the date o' receipt o' this order" with a re>uest to gi3e his e@pert opinion on the basis o' the records o' the treatment and a''ida3its 'iled by both the parties within two months 'rom the date the records are made a3ailable to him. A'ter receipt o' the e@pert opinion" the Commission is re>uested to pass 'resh order in accordance with law. to costs. o order as

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