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TMI Blog2009 (9) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... different persons are relevant? - C.A. 5991 OF 2002 - - - Dated:- 11-9-2009 - SINGHVI, G.S DATTU, H.L , JJ. JUDGMENT This appeal is directed against the order passed by National Consumer Disputes Redressal Commission, New Delhi in Original Petition No. 128 of 1996 dated 23.5.2002. By the impugned order National Consumer Commission has rejected the petition filed by the complainant. 2) The facts in brief are as under: The appellant/complainant was a teacher by profession. He was aged about 60 years when he was down with physical ailments such as backache and difficulty in walking as a result of progressive weakness of both his lower limbs. As the problem worsened, on 20.11.1995, the appellant approached Regency Hospital Ltd. (Respondent No. 1), for Medical check-up. On the same day, C.T. Scan was done and he was diagnosed as a patient of Dorsol Cord Compression D4-D6 Pott's spine which in simple terms means that T.B. infection has spread till his vertebra. On the same day he was advised to get operated for decompression of spinal cord by Laminectomy D-3 to D-6. The operation was performed by Dr. Atul Sahay (Respondent No.2) on 25.11.1995. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commission has concluded: Medical negligence is when a doctor did something which he ought not to have done or did not do what he ought to have done. The doctors were qualified professionals. They did whatever was required to be done of Neuro-Surgeons. In fact, we find the complainant's deficient, who neither appeared for cross examination nor produced any literature in support of this case to be of any assistance to this Commission. 5) Feeling aggrieved by the decision, the appellant has filed this appeal under Section 23 of the Consumer Protection Act, 1986. 6) Contention in the Appeal : It is the contention of the appellant that it was due to non-compliance of the order of National Commission by the Registry of National Commission, the Commission did not have the benefit of the expert opinion to arrive at a conclusion, as to whether there was any negligence of the doctors who treated the appellant. It is further contended that pursuant to the order passed by the Commission dated 5.1.2000, the appellant had submitted all the records relating to his treatment on 4.2.2000 and had requested the Registry of the Commission to forward the same to Dr. A.K. Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity to move, and the muscles overlying the affected vertebrae may feel sore or tight. Pain resulting from heavy lifting usually begins within 24 hours of the overexertion. Most patients who do not have a history of chronic pain in the lower back feel better after 48 hours of bed rest with pain medication and either a heating pad or ice pack to relax muscle spasms. If the patient's pain is not helped by rest and other conservative treatments, he or she will be referred to an orthopedic surgeon for a more detailed evaluation. An orthopedic evaluation includes a physical examination , neurological workup, and imaging studies. iii Conservative treatments Surgery for lower back pain is considered a treatment of last resort, with the exception of cauda equina syndrome. Patients should always try one or more conservative approaches before consulting a surgeon about a laminectomy.[http://www.surgeryencyclopedia.com/Fi-La/Laminectomy .html] 10) CLEAVAGE OF OPINION: Since medical science is complicated, expert opinion provides deep insight. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Ors.) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant. (c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant. 13) The importance of the provision has been explained in the case of State of H.P. v. Jai Lal and Ors.,[(1999) 7 SCC 280]. It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value. 18) Though we have adverted to the nature of disease and the relevancy of the expert opinion, we do not think it necessary to go into the merits of the case in view of the course we propose to adopt, and in view of the fact that the Commission is the last fact finding authority in the scheme of the Act. 19) The Commission by its order dated 6.3.2000 had requested Dr. A. K. Singh, Neurologist, to give his opinion on the surgery done in this case. It was also ordered that all the records of the surgery will be submitted by the complainant to the Registrar of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a later stage. 23) The Commission in course of its judgment has observed that in spite of opportunity being given, the complainant and his wife did not offer themselves for the cross examination and they have failed to supply material to Dr. A. K. Singh as mentioned in his report dated 19.08.2000, which could have enabled him to give a more complete report. Also no evidence of any expert was led by the appellant. For that matter none of the parties filed any literature on the subject to support their contentions in spite of giving them an opportunity. 24) In the present case, the appellant had filed all the records of the treatment before the Commission. The Assistant Registrar, due to oversight, did not send the original records and X-Ray films to the expert. Thus, it was the Assistant Registrar of the Commission who had failed to perform the duty diligently. Due to the non-availability of vital and important information, the expert was handicapped in giving his opinion on the basis of which the order of the Commission was to be passed. It is very much clear from the report of Dr. A. K. Singh dated 19.8.2000, that he would have been in a better position if certain documen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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