SHAHJAHAN SIDDIQUIE Vs. RUBY GENERAL HOSPITAL

JUDGEMENT

(1.) Majority View : 1. The facts of the present appeal matter have been described in the order of the learned President and are not being repeated here. The Forum heard the case in regard to maintainability of the matter and did not go into the merit of the matter. The complainant wanted to adduce the evidence of two medical experts in order to establish his allegation against the O. Ps. On such a prayer being made by the complainant the Forum came to the conclusion that the instant case involves complicated facts requiring the evidence of medical experts and passed the order that the complainant should be asked to approach the Civil Court of proper jurisdiction for appropriate relief, keeping in view the principle of law laid down by the Hon'ble Supreme Court in para 38 of the case AIR 1996 SC 550.

(2.) According to me the presumption of the Forum that the case involves complicated questions was too premature. The complainant merely sought to produce two medical experts as witnesses in order to prove his allegation of medical negligence against the O. Ps. I think that this was a legitimate prayer of the complainant and the mere fact that two medical experts were sought to be examined cannot and should not automatically lead to the conclusion that the case is complicated. As a matter of fact in several cases of medical negligence (for example order dated 28.7.1999 in F. As.2 and 3 of 1997-1999 (3) CPR 13 (NC), the Hon'ble National Commission has observed that it is necessary to produce evidence by way of opinion of medical experts and/or their examination as witnesses for proving the allegation of medical negligence. There are a very large number of cases of medical negligence that have been adjudicated by the District Fora/state Commissions all over the country where medical experts have been examined as witnesses for proper adjudication. Even in this State Commission several cases of medical negligence have been/are being adjudicated where medical experts are being examined and cross-examined as witnesses. According to me, the prayer of the complainant for examination of medical experts as witnesses was a legitimate prayer assuming that prima facie there was possibility of negligence, and he should not be denied this opportunity on the presumed technical ground that this will make the case complicated.

(3.) It is relevant to mention here that while adjudicating one matter the National Commission observed as under vide (NC), S. K. Abdul Sukur V/s. State of Orissa and Ors.,1991 2 CPJ 202 "if jurisdiction is declined by the Redressal Forums set up under the Act in all such cases on the mere ground that examination and cross-examination of witnesses would be necessary, it would amount to unjust denial of benefits of the Act to the aggrieved consumer by erroneous abdication of its jurisdiction by the Forum. "