7 October, 2017
The Hon’ble Supreme Court of India in a recent judgment of Bijoy Sinha Roy (D) by Lr. Vs. Biswanath Das & Ors, Civil Appeal No. 4761 of 2009 dated August 30, 2017 has clarified the test of medical negligence and has also laid down guidelines to be followed by Consumer forums for speedy and timely disposal.
The present appeal arises out of an order of the National Consumer Disputes Redressal Commission (NCDRC) that reversed the order of the State Commission whereby compensation was awarded to the Appellant in the present appeal for medical negligence, resulting in death of his wife Bijoy Sinha Roy (the deceased).
The State Commission held that medical negligence had taken place by the Opposite parties and passed an order for compensation to the tune of INR 5 lakhs. This order had been reversed by the NCDRC on the grounds that there was no medical negligence in the decision of the surgeon to perform surgery.
Basis the contradictory findings of both the State Commission and the NCDRC and the submissions of the parties, the Hon’ble Supreme Court clarified various grounds for determining medical negligence. While the Court in several of its earlier decisions has clarified the position with respect to medical negligence, the Court in the present appeal has safeguarded its earlier opinion. The Court has specified that negligence in the context of medical professional calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a medical alternative is available.
In view of this legal position, the Court held that the NCDRC was justified in holding that decision to perform surgery on the deceased was not medical negligence. Further, the Court also found it necessary to refer to another important aspect relating to administration of justice by the Consumer Fora as the present case had been pending for the last 23 years.
In light of this, the Court held that keeping in mind the scheme and the object of the Consumer Protection Act, 1986 (‘The Act’), the Consumer forums need to monitor speedy resolution of disputes and need to avail the Alternate Disputes Resolution (ADR) mechanism which is now regarded as part of access to justice.
To achieve the object of providing speedy remedy to a consumer, steps can be taken under Section 24B (Administrative Control) of the Act. The NCDRC has administrative control over all the State Commissions. Thus, the NCDRC is competent to introduce monitoring mechanism for speedy disposal.
Additionally, the Court has also laid emphasis on the applicability of Section 89 (Settlement of disputes outside Court) of the Code of Civil Procedure, 1908. The Court has clarified that even though strictly speaking, the said provision is applicable only to civil courts; there is no reason to exclude its applicability to Consumer Fora having regard to the object of the Act.
Lastly, the Court has requested the NCDRC to issue appropriate directions in relation to both the aforesaid issues.
For further information, please contact:
Vineet Aneja, Partner, Clasis Law
vineet.aneja@clasislaw.com
