State Consumer Disputes Redressal Commission
Dr.G.Pakkialakshmi,Sivagangai vs T.Thiruselvi,Sivagangai on 21 March, 2024
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
R.P.No.36/2023
(Against the order in C.M.P.No.42/2023 in C.C.No.36/2022, dated 04.07.2023 on the file of
the District Commission, Sivagangai.)
THURSDAY, THE 21st DAY OF MARCH 2024.
Dr.G.Pakkialakshmi,
Lakshmi Fertility Centre,
No.5, Church 2nd Street,
T.T.Nagar, Karaikudi,
Sivagangai. Revision Petitioner/Petitioner/Opposite Party
-Vs-
T.Thiruselvi,
W/o Thangapandi,
Kanba Nagar, Thirupathur,
Sivagangai. Respondent/Respondent/Complainant
Counsel for Revision Petitioner/ Petitioner/Opp.Party : Mr.S.Madhavan, Advocate.
Counsel for Respondent/Respondent/Complainant : Mr.R.Srinivasan, Advocate.
This revision petition coming before me for final hearing on 18.03.2024 and
on perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. This revision petition has been preferred by the revision petitioner/opposite party against the order passed in C.M.P.No.42/2023 in C.C.No.36/2022 by the District Consumer Disputes Redressal Commission, Sivagangai on 04.07.2023.
2. Initially the complainant one T.Thiruselvi filed a consumer complaint alleging medical negligence against the opposite party/doctor and claimed compensation.
3. The opposite party also filed her written version and then the District Commission received the complainant side proof affidavit with documents. At the 2 stage the opposite party preferred a petition with a prayer either to dismiss the complaint in limine, as per the Apex Court directions or to arrange for getting expert opinion from the doctor of a Government Medical College Hospital".
4. The above petition was subsequently dismissed by the District Commission.
5. Aggrieved over the same the opposite party preferred the revision alleging that the order of the District Commission is erroneous and the District Commission without taking note of the Apex Court decision which emphasized getting expert opinion involving medical negligence, dismissed the petition. The District Commission failed to understand the importance of expert opinion u/s 38 (9) (D) of the Consumer Protection Act, 2019. Hence they prayed to allow the petition.
6. Both sides submitted their respective arguments before this Commission
7. Now the point for consideration is:
Whether any expert opinion is necessary?
8. Point: As far as the cases of medical negligence is concerned. Initially the Supreme Court held in....Martin F. D' Souza .Vs. Mohd. Ishfaq on 17 February, 2009 (AIR 2009 SUPREME COURT 2049) as follows:
"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 Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized 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 concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent." 3
But subsequently The Apex Court made it clear that expert opinion is not at all necessary or mandatory in Kishan Rao .Vs. Nikhil Super Speciality Hospital & Anr on 8 March, 2010 in the following words.
"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 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). 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.
Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D'souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.
Those directions are also contrary to the avowed purposes of the Act"
So the present position is getting medical expert opinion is not mandatory and it is the discretion of the District Commission to seek any expert opinion.
9. At this juncture, the opposite party preferred this revision petition to quash the proceedings on the face of it, not maintainable. The revision petitioner/opposite party did not plead how the medical expert opinion is necessary in this case, and the doctor did not explain on what basis that is by examining the complainant or by examining any medical records the expert opinion has to be obtained? 4
10. If the doctors wants the expert opinion on the basis of any medical records then the doctor ought to have mentioned the particulars of documents which have to be referred to the expert doctors. But no specifications of documents were given in the petition.
11. So the petition itself was imperfect as such the dismissal is found valid. Hence there is no necessity for this Commission to interfere with the order in its revisional jurisdiction. After all, it is for the complainant to prove her allegations of medical negligence 'Prime Facie' then only the burden of proof shifted to the opposite party.
12. So the order of the District Commission is hereby confirmed and the revision petition is liable to be dismissed without cost
13. In the result,
1. The revision petition is dismissed.
2. No cost.
Sd/-xxxxxxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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