Holding

The NCDRC order is set aside; the Registrar must forward all records to the expert and the Commission must pass a fresh order after receiving the expert opinion.

Summary

The appellant, diagnosed with spinal tuberculosis (Pott's disease), underwent three surgeries that left him handicapped and filed a complaint before the National Consumer Disputes Redressal Commission (NCDRC) alleging medical negligence. The Commission dismissed the complaint, holding that negligence was not proved, but the appellant contended that the Commission never received the expert neurologist's opinion because the Assistant Registrar failed to forward his original medical records and X‑ray films. The Supreme Court held that the omission denied the appellant a fair opportunity, violated principles of natural justice, and rendered the Commission's order unsustainable. It emphasized that expert opinion is indispensable in complex medical negligence matters and is governed by Section 45 of the Indian Evidence Act. Consequently, the Court set aside the NCDRC order, directed the Registrar to send all records to the appointed expert, and ordered a fresh hearing. The appeal was therefore allowed.

Issues considered

The failure of the NCDRC Registrar to forward the appellant's medical records to the appointed expert constituted a denial of natural justice.
Whether a consumer commission can render a decision on medical negligence without an expert opinion under the Consumer Protection Act.
Whether Section 45 of the Indian Evidence Act mandates the admission of expert opinion in such cases.

Legislation cited

Consumer Protection Act, 1986s. 23
Indian Evidence Act, 1872s. 45

Subjects

medical negligenceconsumer protectionexpert opinionnatural justiceSection 45 Evidence ActSection 23 Consumer Protection ActNCDRCspinal tuberculosis

Judgment

/
[2009] 14 (ADDL.) S.C.R. 424

A RAMESH CHANDRA AGRAWAL
v. ),/'
REGENCY HOSPITAL LTD. AND ORS.
(Civil Appeal No. 5991 of 2002)
SEPTEMBER 11, 2009
8
[G.S. SINGHVI AND H.L. DATTU, JJ.]

Consumer Protection Act, 1986 - Medical negligence -
Appellant diagnosed with T.B. infection - Operated upon - )..
c Multiple operations - Operations unsuccessful - Appellant
filed complaint before National Commission; sought
compensation - Complaint dismissed - On appeal, held:
Appellant had filed all records of treatment before the
Commission - Registry of the Commission, due to oversight,
D did not send original records and X-Ray films to the expert '/I
A

neurologist who had been requested to offer his opinion on >-
the surgery done on appellant- Due to non-availability of vital
aryd important information, the expert neurologist was
handicapped in giving his opinion - Appellant should not
E suffer for the negligence of the Registry and also when the
Commission itself stated in its judgment that supply of
material to the expert neurologist could have enabled him to
give a more complete report - Principles of Natural Justice ~-
require that a fair opportunity should be given to the
complainant to prove his claim based on report of the expert
F
- Since that opportunity was denied to appellant, order passed
by the Commission cannot be sustained - Registrar of the
Commission directed to forward all records of treatment filed
by appellant before the Commission to the expert concerned,
-
for his expert opinion - Commission to pass fresh order after
G receipt of expert opinion - Evidence Act, 1872- s.45.

Appellant was diagnosed to be suffering from T.B.
Infection in respondent no.1 hospital whereupon
respondent no.2 doctor operated upon him. However, the
H 424
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 425
l LTD. AND ORS.

problem got aggravated on which another operation was A
.._A
performed upon the appellant, this time by respondent
no.3. Even after the second operation, the infection was
not cured and appellant was referred to another hospital
whereat another operation was performed on the
appellant which provided some relief to him but left him B
handicapped.

- -.ii
The appellant filed complaint before the National
Consumer Commission alleging medical negligence on
the part of respondents 1 to 3 and sought compensation.
The National Commission came to the conclusion that
c
medical negligence was not proved against the
respondents and dismissed the complaint.

In appeal to this Court, the appellant contended that
\>
~
due to non-compliance of the order of National b
~
Commission by the Registry of National Commission, the
Commission did not have the benefit of expert opinion
(of neurologist) to arrive at a conclusion, as to whether
there was any negligence of the doctors who treated the
appellant. The appellant contended that pursuant to an E
interim order passed by the Commission, the appellant
had submitted all the records relating to his treatment and
. ·~ had requested the Registry of the Commission to forward
the same to the expert neurologist, who had been
requested to offer his opinion on the surgery done on the F
appellant; however, the Registry did not send the
documents furnished by the appellant to the expert and,
therefore, the expert could not offer his opinion and
thereby, the appellant was denied the benefit of having
an opinion which would have proved his case before the
G
Commission.

Allowing the appeal, the Court

HELD: 1.1. Since ·medical science is complicated,
H
/
426 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.
.........

A expert opinion provides deep insight. The law of evidence
is designed to ensure that the court considers only that
.;.A
evidence which will enable it to reach a reliable
conclusion. There is a need to hear an expert opinion
where there is a medical issue to be settled. The scientific
B question involved is assumed to be not within the court's
knowledge. Thus cases where the science involved, is
highly specialized and perhaps even esoteric, the central
role of expert cannot be disputed. In order to bring .the
evidence of a witness as that of an expert it has to be "'--
-
c shown that he has made a special study of the subject
or acquired a special experience therein or in other words
that he is skilled and has adequate knowledge of the
subject. [Paras 10, 11 and 13] [433-E-F; 433-H; 434-A-B-
C; 435-G]
~
D 1.2. An expert is not a witness of fact and his ~ +-
evidence is really of an advisory character. The duty of
an expert witness is to furnish the Judge with the
necessary scientific criteria for testing the accuracy of the
conclusions so as tv enable the Judge to form his
E independent judgment by the application of these criteria
to the facts proved by the evidence of the case. The
scientific opinion evidence, if intelligible, convincing and
tested becomes a factor and often an important factor for +-..
consideration along with other evidence of the case.
F [Para 15] [436-B-D]
1.3. In the present case, the appellant had filed all
records of the treatment before the Commission. The
Assistant Registrar of the Commission, due to oversight,
did not send the original records and X-Ray films to the
G 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 neurologist was handicapped in
giving his opinion on the bash~ of which the order of the
H
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 427
LTD. AND ORS.

Commission was to be passed. It is very much clear from A
the report of the expert that he would have been in a better
position if certain documents would have been made
available to him. The appellant had also filed an
application before the Commission, bringing to the notice
of the Commission the lack of care shown by the B
Assistant Registrar, who had failed to forward the records
- of the treatment to the expert, and had requested to send
the records for reconsideration. This application wa~
rejected by the Commission holding that th~
reconsideration of the expert opinion at that stage was c
not necessary. [Para 24] [439-C-F]

1.4. The Commission while rendering its judgment
., failed to appreciate that in such cases expert would nQt
be in a position to form a true opinion if all the documents
pertaining to the matter, on which the opinion is desired, D
are made available to him. The Commission on the
application made by the appellant should have again
directed for the expert opinion after making all the
records of the treatment available to the expert. Th~e
appellant should not suffer for the negligence of the E
Assistant Registrar and also when the Commission has
itself stated in its judgment that supply of material to the
expert neurologist could have enabled him to give a more
complete report. [Para 25] [439-G-H; 440-A]
F
1.5. The principles of Natural Justice require that a
fair opportunity should be given to the complainant to
prove his claim based on the report of the expert. Since
that opportunity was denied to the appellant, the
impugned order passed by National Commission cannQt G
be sustained. The Registrar of the Commission is
directed to forward all the records of the treatment filed
by the appellant before the Commission to the expert
concerned, for his expert opinion. After receipt of the
expert opinion, the Commission is requested to pas~
H
428 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A fresh order in accordance with law. [Paras 26 and 27) ~,, ,
[440-C-D; 440-E-F]

State of H.P. v. Jai Lal and Ors, (1999) 7 sec
280 and
Malay Kumar Gangu/y v. Dr. Sukumar Mukherjee and Others,
(2009) 13 Addi. SCR 1, relied on.
8
State of Maharashtra v. Damu slo Gopinath Shinde and
others AIR 2000 SC 1691 and The State (Delhi
Administration) v. Pali Ram AIR 1979 SC 14, referred to. )-

C Titli v. Jones AIR 1934 All 237, referred to.

Errors, Medicine and the Law, Alan Merry and Alexander
McCall Smith, 2001 ed., Cambridge University Press,
p.178, referred to. ,.
D Case Law Reference:
(1999) 1 sec 280 referred to Para 13
AIR 1934 All 237 referred to Para 14
(2009) 13 Addi. SCR 1 referred to Para 15
E
AIR 2000 SC 1691 referred to Para 16
+-
'-"
AIR 1979 SC 14 referred to Para 16
CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
F 5991 of 2002. ,.
I

From the Judgment & Order dated 23.5.2002 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition N9. 128 of 1996.
G Anil Mittal, Vibhuti Sushant, Dr. Kailash Chand for the
Appellant.

lndu Malhotra, Kush Chaturvedi, Vikas Mehta, Sharmila
Upadhyay, R.K. Tripathi, John L. Joedl for the Respondents.
H
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 429
LTD. AND ORS .
... _,\ A
The Judgment of the Court was delivered by

H.L. DATTU, J. 1. 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 B
Commission has rejected the petition filed by the complainant.

2. The facts in brief are as under:
-<f
The appellant/complainant was a teacher by profession.
He was aged about 60 years when he was down with physical c
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-
-i up. On the same day, C.T. Scan was done and he was D
diagnosed as a patient of "Dorsal 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.
E
Atul Sahay (Respondent No.2) on 25.11.1995. It is asserted,
..... _.,. that, after the operation, the condition of the appellant
deteriorated further and it was revealed from the MRI scan that
the operation was not successful as it was not done at the right
level. It is also stated that the case summary and the MRI reports
F
suggest that the problem was aggravated and there was need
for another operation. Dr. l.N. Vajpayee (respondent no.3) was
consulted on 12.12.1995 and he performed the operation on
the same day. Even after the second operation the infection was
not cured and this forced him to refer his case to Vidya Sagar
·;c Institute of Mental Health and Neurological Sciences, New Delhi G
(VIMHANS) for further treatment. It is further stated, that, the third
operation was preformed and it provided the appellant· some
relief, but left him handicapped due to his legs being rendered
useless and loss of control over his Bladder movement.
H
430 SUPREME COURi REPORTS [2009) 14 (AODL.) $.C.R.

-;.._""
A 3. CoMPLAINT BEFORE THE NAt10NA1. CoMM1ss10N: The
appellant, being impaired by the treatment, filed a complaint
before the National Consumer Disputes Redress al
Commission (hereinafter referred as "National Commission")
alleging medical negligence on the part of respondents 1 to 3.
B
The claim of the appellant before the National Commission
was as under:

(i) ~-
That the correct method of operating his infection
was the Antero-Latera/ Decompression (ALO) and
c not Laminectomy.

(ii) That the complainant/appellant contends that he
I-
was kept only for one week on the Anti-Tubercular
drugs before the surgery which is a much shorter I! ~

duration than the accepted medical practice. 'y
D
(iii) That there was no requirement of immediate
surgery.

(iv) That the respondent no.2, who was a Neurosurgeon
E did not consult the Orthopedic surgeon, even though
he was not c,Slpable to handle the case of
complainant/appellant without consulting ..\-' '

Orthopedic surgeon.

Hence, it was claimed that there is gross negligence and
F
carelessness on the part of the respondents in treating the
complainant/appellant, and therefore, respondents be directed
to pay a sum of Rs. 22,00,000/- with interest at the rate of 24%
per annum to the complainant.
G 4. National Commission Judgment: ~

After considering the case presented by the appellant and
the respondents and looking through the affidavits filed by the
parties, the National Commission has come to the conclusion
H that medical negligence is not proved against the respondents.
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 431
LTD. AND ORS. [H.L. DATTU, J.]

The Commission has concluded: A
_, . ~
• "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.
B
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.
<I
~
5. Feeling aggrieved by the decision, the appellant has c
filed this appeal under Section 23 of the C-onsumer Protection
Act, 1986.

6. Contention in the Appeal :
~

It is the contention of the appellant that it was due to non-
D
_,_
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 E
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, Neurologist, who had been
requested to offer his opinion on the surgery done to the F
appellant. However, the Registry had not sent the documents
i furnished by the appellant to the expert and, therefore, the
expert could not offer his opinion and thereby, the appellant was
denied the benefit of having an opinion which would have
proved his case before the Commission: G
).-
7. The respondents in their counter affidavit filed before this
court, have denied the assertions and allegations made by the
appellants and further justified the judgment of the National
-j' Commission.
H
')

432 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A 8. We have heard the learned counsel for the parties to
the lis.

9. Pott's Disease and Protocol of Treatment:

(i) The Disease
B
Pott's disease results from an infection of the bone by the
Mycobacterium Tuberculosis bacteria via a combination of
hematogenous root and lymphatic drainage. The organism may
stay dormant in ttie skeletal system for an extended period of
c time before the disease can be detected.

In Pott's disease, the spinal cord may become involved in
a compression by bony elemerits and/or expanding abscess
or by direct involvement of cord and leptomeninges by
granulation tissue. Through experimentations it is found that the
0 golden standard of the diagnosis in patients is CT guided
needle aspiration biopsy.[Assistance taken from the website]
'
)

(ii) Diagnosis
L_.
I
E At present, the treatment of Pott's disease remains
controversial. Some advocate conservative treatment with late
spinal fusion and others early spinal fusion followed by
conservative treatment Surgical treatment should include anti-
TB medication, abscess decompression. The anterior surgical
F approach is chosen for cervical and lumbar regions. Anterior
spinal fusions is currently thought to be the best surgical adjunct
to after atleast 18 months of anti-TB chemotherapy.

The differential diagnosis of low~r back pain is
complicated by the number of possible causes and the patient's
G reaction to the discomfort. In many cases 'the patient's
perception of back pain is influenced by poor-quality sleep or
emotional issues related to occupation or family matters. A
primary care doctor will begin by taking a careful medical and
occupational history, asking about the onset of the pain as well
H as its location and other characteristics. Back pain associated
I
. RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 433
LTD. AND ORS. [H.L. DATTU, J.]

._ -l with the lumbar spine very often affects the patient's ability to A
move, and the muscles overlying the affected vertebrae may
feel sore or tight. Pain resulting from heavy lifting usually begins
within ?4 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 B
pad or ice pack to relax muscle spasms.

-f- If the patient's pain is not helped by rest and other
-I conservative treatments, he or she will be referred to an
orthopedic surgeon for a more detailed evaluation. An
orthopedic evaluation includes a physical examination,
.c
neurological workup, and imaging studies.

iii Conservative treatments
~

~-
Surgery for lower back pain is considered a treatment of D
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: E

.. • + Since medical science is complicated, expert opinion
I
provides deep insight. (See Malay Kumar Gangu/y vs. Dr.
Sukumar Mukherjee and Ors.) [Criminal Appeal Nos. 1191-
1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, F
~ decided on 7.8.2009].

· It is clear that diagnosis and the method of treatment
suggested to a patient of Pott's disease vary. The nature of
disease is such that there exist difference in the identification
G
).--
of the symptoms and also the protocol of treatment to cure the
disease. Therefore, the expert opinion forms an important role
in arriving at conclusion.

11. Expert opinion:
H
434 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A The law of evidence is designed to ensure that the court f..,.
considers only that evidence which will enable it to reach a
reliable conclusion. The first and foremost requirement for an
expert evidence to be admissible is that it is necessary to hear
the expert evidence. The test is that ·the matter is outside the
B knowledge and experience of the lay person. Thus, there is a
need to hear an expert opinion where there is a medical issue
to be settled. The scientific question involved is assumed to be
not within the court's knowledge. Thus cases where the science
).-
-.
involved, is highly specialized and perhaps even esoteric, the
c central role of expert cannot be disputed. The other
requirements for the admissibility of expert evidence are:

(i) that the expert must be within a recognized field of
expertise

D (ii) that the evidence must be based on reliable principles, "
x
and

(iii) that the expert must be qualified in that discipline. '
~

[See Errors, Medicine and the Law, Alan Merry and
E Alexander McCall Smith, 2001 ed., Cambridge University
Press, p.178)

12. Section 45 of the Indian Evidence Act speaks of expert -+"'
evidence. It reads as under:
F·
"45. Opinions of experts - When the Court has to form
an opinion upon a point of foreign Jaw, or of science, or
art, or as to identity of hand writing or fli 1ger-impressions,
the opinions upon that point of persons specially skilled
in such foreign law, science or art, or in questions as to
G? identity of handwriting or finger impressions, are relevant
facts. Such person called experts. JJ/ustrations
"'
(a) The question is, whether the death of A was caused
by poison. The opinions of experts as to the symptoms
H produced by the poison by which A is supposed to have
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 435
LTD. AND ORS. [H.L. DATTU, J.]

,. ,, died, are relevant. A
~
(b) The question is whether A, at the time of doing a certain
act, was by reason of unsoundness of mind, in capable of
knowing the nature of the act, or that he was doing what
was either wrong or contrary to law. B
The opinions of experts upon the question whether the
symptoms exhibited by A commonly show unsoundness of
-f 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 c
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 D
'</-
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 E
in the case of State of H.P. v. Jai Lal and Ors., [(1999) 7 sec
\.,. + 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 F
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 to be shown that he has made a special study G
'!-· of the subject or acquired a special experience therein or in
other words that he is skilled and has adequate knowledge of
the subject.

14. It is not the province of the expert to act as Judge or
Jury. It is stated in Tiffi v. Jones (AIR 1934 All 237) that the real H
436 SUPREME COURT REPORTS [2009) 14 (ADDL.) S.p.R.

A function of the expert is to put before the court all the materials,
together with reasons which induce him to come to the v"'
conclusion: so that the court,· although not an expert, may form ,.
its own judgment by its own observation of those materials.

15. An expert is not a witness of fact and his evid~nce .is
B
really of an advisory character. The duty of an expert witness
is to furnish the Judge with the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the
Judge to form his independent judgment by the application of
these criteria to the facts proved by the evidence of the case.
c The scientific ·Opinion evidence, if intelligible, convincing and
*
tested becomes a factor and often an important factor for
consideration along with other evidence of the case. The
credibility of such a witness depends on the reasons stated in.
support of his conclusions and the data and material furnished ;,..

D which form the basis of his conclusions. (See Malay Kumar .\-
Ganguly vs. Dr. Sukumar Mukherjee and Others) (Criminal
AppealNos. 1191-1194 of 2005 alongwith Civil Appeal No.
1727 of 2007, decided on 7.8.2009].

E 16. In the case of State of Maharashtra v. Damu slo
Gopinath Shinde and others., [AIR 2000 SC 1691 at page
1700], it has been laid down that without examining the expert
as a witness in Court, no reliance can be placed on an opinion +~· f

alone. In this regard, it has been observed in The State (Delhi
F Administration) v. Pali Ram, [AIR 1979 SC 14] that "no expert
would .claim today that he could be absolutely sure that his
opinion was correct, expert depends to a great extent upon the
materials put before him and the nature of question put to him."
17. In the Article "Relevancy of Expert's Opinion" it has
G been opined that the value of expert opinion rest ori the facts
on Which it is based and his competency for forming a reliable
opinion. The evidentiary value of the opinion of expert depends
on the facts upon which it is based and also the validity of the
process by which the conclusion is reached. Thus the idea that .
H is proposed in its crux means that the importance of an opinion
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 437
LTD. AND ORS. [H.L. DATTU, J.]
>- ~
is decided on the basis of the credibility of the expert and the A
• 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: "~ere assertion without mentioning the
data or basis is not evidence, even if it comes form expert. B
Where the experts give no real data in support of their opinion,
- the evidence even though admissible, may be excluded from
-f . consideration as affording no assistance in arriving at the
correct value.,,.

Ill 18. Though we have adverted to the nature of disease and
c
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 vi~w of the fact that the Commission
-j is the last fact finding authority in the scheme of the Act.
0
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 tbe complainant to
the Registrar of the Commission to enable him to forward it to E
Dr. A. K. Singh, along with the complaint and also the affidavits
.... J
filed on behalf of the respondents. Dr. A. K. Singh will make
himself familiar with the complaint and the records and then give
his opinion.

20. The Assistant Registrar by his letter dated 12.6.2000, F
forwarded the original records of the present case to Dr. A. K.
Singh. On 19.8.2000, Dr. A. K. Singh submitted his report to
the Assistant Registrar with the findings that:

~ "After careful scrutiny of the documents now made G
available to me, I find that the current situation as regards
these vital and missing documentary evidences is as
follows:

(a) No original X-Ray films, of various radiological
H
438 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

A examinations were enclosed either in original form f- A
or in the form of copies. ..
(b) Nodetails of findings at surgery are provided.

(c) No details of operative findings have been
B provided. Only the surgical procedure carried out
has been mentioned.

(d) No details of any subsequent neurological/neuro-
radiological assessment have been provided.
*-"
c In view of the foregoing, I feel that no much additional .,.
information, over and above what had originally been I

provided to me by Dr. Atul Sahai, has been .made
available now for me to substantially revise my opinion
earlier. I, therefore, stand by my earlier opinion referred to "
D ~
above."

21. The appellant on 17.9.2001, again filed an application
before the Commission for referring the matter to eminent
doctor for his opinion. It was stated that the expert had at many
E places stated that ·he would have been in a better position to
examine the matter if he was made available the X-Rays and
MRI reports etc. Inquiries from the office of Commission -A. 'f ,

revealed that the office of the Commission, by mistake, forgot
to forward the original record to Dr. A. K. Singh and as a result
F thereof, Dr. A. K. Singh was deprived of the opportunity of
perusing the same before submitting his opinion in the matter.
In this way, the case of the appellant was severely prejudiced
as without these records it was not possible for an expert to
.
give definite and correct opinion in the matter.
G 22. The Commission by its order dated 22.11.2001 -...j

rejected the application of the appellant stating that Dr A. K.
Singh had submitted his report as far back as on 19.8.2000
and it is not understandable as to why this application should
have been filed at such a later stage.
H
RAMESH CHANDRA AGRAWAL v. REGENCY HOSPITAL 439
LTD. AND ORS. [H.L. DATTU, J.]
• -~ 23. The Commission in course of its judgment has A
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 B
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
c
Registrar, due to oversight, did not send the original records
and X-Ray films to the e_xpert. Thus, it was the Assistant
Registrar of the Commission who had failed to perform the duty
.A
diligently. Due to the non-availability of vital and important
-f information, the expert was handicapped in giving his opinion D
.on the basis of which the order of the Commission was to be
passed. It is very much clear from the report of Dr. AK. Singh
dated 19.8.2000, that he would have been in a better position
if certain documents would have been made available to him.
The appellant had also filed an application before the E
Commission dated 17.9.2001, bringing to the notice of the
...... '"~- Commission the lack of care shown by the Assistant Registrar,
who had failed to forward the records of the treatment to the
expert, and had requested to send the records for.
~.
reconsideration. This application was rejected by the F
Commission holding that. the reconsideration of the expert
opinion at this stage is not necessary.

25. The Commission while rendering its judgment has
failed to appreciate that in such cases expert would not be in
G
a position to form a true opinion if all the documents pertaining
to the matter, on which the opinion is desired, are made
available to him. The Commission on the application made by
the appellant should have again directed.for the expert opinion
after making all the records of the treatment available to the
H
440 SUPREME COURT REPORTS [2009] 14 (ADDL.) S.C.R.

,_,...
A expert. The appellant should not suffer for the negligence of the
Assistant Registrar and also when the Commission has itself
stated in its judgment that supply of material to Dr. A K. Singh
could have enabled him to give a more complete report.

26. It is important to note that the appellant had brought to
_B
the notice of National Commission, the lack of care shown by
the Assistant Registrar, who had failed to forward the records _,
of the treatment to the expert, by filing an application before the
Commission dated 17.9.2001. This application was rejected
+
by the Commission holding that the reconsideration of the
c expert opinion at this stage is not necessary. In our view, the
principles of Natural Justice require that a fair opportunity
should be given to the complainant to prove his claim based
on the report of the·expert. Since that opportunity is denied to
the appellant, the impugned order passed by National
.. ...
_

~
D Commission cannot be sustained.

27. In view of the above discussion, appeal raquires to be
allowed and, accordingly, it is allowed. The impugned order is
set aside. The Registrai ui the Commission is directed to
E forward all the records of the treatment filed by the appellant
before the Commission to Or. A K. Singh, Neurologist, who is
now working at Fortis Hospital, Naida, for his expert opinion
within one month from the date of receipt of this order, with a
~
·-
-1

request to give his expert opinion on the basis of the records
F of the treatment and affidavits filed by both the parties within .~

two months from the date the records are made available to
him. After receipt of the expert opinion, the Commission is
requested to pass fresh order in accordance with law. No order
as to costs.
G B.B.B. Appeal allowed.