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A. Srimannarayana v. Dasari Santakumari And Another
Factual and Procedural Background
The case arises from a medical negligence complaint filed by the wife of a deceased patient. The appellant-doctor and another doctor (Respondent 2) had performed surgery on the patient, who later died on 13-7-2008. The widow lodged a complaint before the District Consumer Forum. After the Forum issued notice, the appellant moved the State Consumer Disputes Redressal Commission contending that, under this Court’s decision in Martin F. D’Souza v. Mohd. Ishfaq, the complaint could not proceed without an expert medical opinion. The State Commission dismissed the revision but allowed the appellant to seek an expert’s opinion before the District Forum. Instead of doing so, the appellant approached the National Consumer Disputes Redressal Commission, which dismissed his revision petition relying on V. Kishan Rao v. Nikhil Super Speciality Hospital. The appellant then filed the present special leave petitions, which have been heard and converted into civil appeals by the Supreme Court.
Legal Issues Presented
- Whether the National Commission erred in dismissing the revision petition by relying on V. Kishan Rao v. Nikhil Super Speciality Hospital, which had declared Martin F. D’Souza v. Mohd. Ishfaq per incuriam.
- Whether an expert medical opinion is a mandatory pre-condition for entertaining a consumer complaint alleging medical negligence before the Consumer Fora.
Arguments of the Parties
Appellant's Arguments
- Error in declaring precedent per incuriam: Counsel submitted that V. Kishan Rao wrongly branded Martin F. D’Souza as per incuriam, allegedly misconstruing the three-Judge Bench decision in Jacob Mathew v. State of Punjab.
- Reliance on Jacob Mathew: The appellant contended that the principles in Jacob Mathew supported the necessity of obtaining an expert opinion before proceeding against medical professionals.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 | Differentiates civil and criminal negligence; lays down standards for criminal prosecution of doctors under Section 304-A IPC. | Clarified that its ratio is confined to criminal prosecution, not civil consumer claims; used to reject appellant’s reliance on the case. |
| Martin F. D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 | Suggested Consumer Fora should obtain expert medical opinion before issuing notice in negligence cases. | Held to be contrary to Jacob Mathew in the consumer-law context and correctly declared per incuriam by V. Kishan Rao. |
| V. Kishan Rao v. Nikhil Super Speciality Hospital, (2010) 5 SCC 513 | Declares Martin F. D’Souza per incuriam; holds that expert opinion is not invariably mandatory for consumer complaints on medical negligence. | Formed the principal basis for dismissing the appellant’s revision and was affirmed by the Supreme Court in the present appeals. |
Court's Reasoning and Analysis
The Supreme Court examined the appellant’s contention that V. Kishan Rao erred in declaring Martin F. D’Souza per incuriam. It analysed Jacob Mathew and underscored that that decision dealt exclusively with criminal prosecution of doctors under Section 304-A IPC, requiring a higher threshold of negligence and presence of mens rea. Consequently, the duty to secure an expert opinion before initiating criminal proceedings could not be transplanted into civil consumer litigation.
Because Martin F. D’Souza had extended the criminal-law safeguards from Jacob Mathew into the consumer-law arena, it conflicted with the original ratio of Jacob Mathew. Therefore, the two-Judge Bench ruling in Martin F. D’Souza was correctly treated as per incuriam by the co-ordinate Bench in V. Kishan Rao. The Court concluded that the National Commission rightly relied on V. Kishan Rao and that no interference was warranted.
Holding and Implications
Appeals DISMISSED.
The Supreme Court affirmed the National Commission’s order, thereby upholding that Consumer Fora are not bound to obtain an expert medical opinion as a pre-condition to entertain medical negligence complaints. The decision reinforces the authority of V. Kishan Rao and leaves intact the complaint against the appellant before the District Consumer Forum. No new precedent was set, but the existing jurisprudence favouring consumer access without mandatory expert certification was strengthened.
Order
1. Delay condoned. Leave granted. These appeals arising out of the aforesaid special leave petitions have been filed against the judgment and order dated 15-7-2010 in A. Srimannarayana v. Dasari Santakumari RP No. 2032 of 2010 passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as “the National Commission”), New Delhi.
2. The relevant facts are taken from Special Leave Petition (C) No. 26043 of 2010.
3. The appellant and Respondent 2, who are doctors, conducted an operation on the left leg of the husband of the complainant. Sometime after the operation, the patient died on 13-7-2008. Respondent 1, wife of the deceased, filed a complaint against the appellant and Respondent 2 before the District Consumer Forum. We may notice here that Respondent 2 is the appellant in Civil Appeal No. 369 of 2013 arising out of SLP (C) No. 1495 of 2011. The complaint was duly registered and notice was issued to the appellant and Respondent 2.
4. Against the issuance of the notice, the appellant filed a revision petition before the State Consumer Disputes Redressal Commission, Hyderabad on the ground that the complaint could not have been registered by the District Forum without seeking an opinion of an expert in terms of the decision of the Supreme Court in Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1. In this revision petition, Respondent 2 filed IA No. 2240 of 2009 praying for stay of proceedings before the District Consumer Forum. The State Commission rejected the revision petition by granting liberty to the appellant to file the necessary application before the District Forum to refer the matter to an expert. He did not file any application before the District Forum, but challenged the aforesaid order of the State Commission by filing Revision Petition No. 2032 of 2010 before the National Commission.
5. The revision petition has been dismissed by the National Commission by relying upon the subsequent judgment of this Court in V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513 wherein this Court has declared that the judgment rendered in Martin F. D'Souza (2009) 3 SCC 1 is per incuriam. Hence the present special leave petitions challenging the aforesaid order of the National Commission dated 15-7-2010 RP No. 2032 of 2010.
6. Heard Mr Rao, learned counsel appearing on behalf of the appellant and Respondent 2 and Mr K.K Kishore, learned counsel appearing on behalf of Respondent 1, at length.
7. Mr Rao has tried to persuade us that the judgment of this Court in V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513 has erroneously declared the earlier judgment of this Court in Martin F. D'Souza v. Mohd. Ishfaq (2009) 3 SCC 1 as per incuriam, on a misconception of the law laid down by a three-Judge Bench of this Court in Jacob Mathew v. State of Punjab (2005) 6 SCC 1. We are not inclined to accept the submission made by Mr Rao. The judgment in Jacob Mathew (2005) 6 SCC 1 is clearly confined to the question of medical negligence leading to criminal prosecution, either on the basis of a criminal complaint or on the basis of an FIR. The conclusions recorded in para 48 of Jacob Mathew (2005) 6 SCC 1 leave no manner of doubt that in the aforesaid judgment this Court was concerned with a case of medical negligence which resulted in the prosecution of the doctor concerned under Section 304-A of the Penal Code, 1860. We may notice here the relevant conclusions which are summed up by this Court as under: (Jacob Mathew case (2005) 6 SCC 1)
“48. … (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word ‘gross’ has not been used in Section 304-A IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ‘gross’. The expression ‘rash or negligent act’ as occurring in Section 304-A IPC has to be read as qualified by the word ‘grossly’.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.”
8. The guidelines in para 48 were laid down after rejecting the submission that in both jurisdictions i.e under civil law and criminal law, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. It was observed that: (Jacob Mathew case (2005) 6 SCC 1 & 22-23, paras 12 & 28-29)
“12. … The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law. The essential ingredient of mens rea cannot be excluded from consideration when the charge in a criminal court consists of criminal negligence. …
28. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.
29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason—whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to society.”
9. The aforesaid observations leave no manner of doubt that the observations in Jacob Mathew (2005) 6 SCC 1 were limited only with regard to the prosecution of doctors for the offence under Section 304-A IPC.
10. The aforesaid observations and conclusions leave no manner of doubt that the judgment rendered by a two-Judge Bench of this Court in Martin F. D'Souza (2009) 3 SCC 1 has been correctly declared per incuriam by the judgment in V. Kishan Rao (2010) 5 SCC 513 as the law laid down in Martin F. D'Souza (2009) 3 SCC 1 was contrary to the law laid down in Jacob Mathew (2005) 6 SCC 1.
11. In view of the above, we are of the opinion that the conclusions recorded by the National Commission in the impugned order RP No. 2032 of 2010 do not call for any interference. The civil appeals are dismissed.
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