Synopsis of the Judicial References in Consumer Case

 

District : South 24-Parganas.

 

Before the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, Kolkata – 700 027, South 24-Parganas.

 

                                                                        Complaint Case no. 384 of  2012.

 

                                                                        In the matter of :

 

Smt. Rama Dhar,                                                                  _______Complainant.

-          Versus –

 

Swadesh Basu Hospital, and others.

                        __________Respondents.

 

Synopsis of the Judicial References

 

1.      State of Maharshtra – Versus – Damu S/O Gopinath Shinde and others. AIR 2000 SC 1691.

 

2.      Ramesh Chandra Agarwal – Versus – Regency Hospital and Ors. S.C. 11^th  September’ 2009.

 

3.      Malay Kumar Ganguly v/s Dr. Sukumar Mukherjee, S.C. 7^th August’ 2009.

 

4.      A.R. Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602, AIR 1984 SC 684.

 

 

 

 

1.      Hon'ble Supreme Court in the case titled as Ramesh Chandra Agarwal v/s Regency Hospital Ltd. has broadly dealt and interpreted the scenario and held that, an expert is a person who devotes his time and study to a special branch of learning. However, he might have acquired such knowledge by practice, observation or careful study. The expert is not acting as a judge or jury. It was further held that 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 of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject. The real function of the expert is to put before the Court all the materials, together with reasons which induce him to come to the conclusion, so that the Court, although not an expert, may form its own judgment by its own observation of those materials. An expert is not a witness of fact (like other witnesses) and his evidence is really of an advisory character. The duty of the 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. No expert can claim that he could be absolutely sure that his opinion was correct.

 

2.      Hon'ble Supreme Court has further laid down in the case titled as State of Maharashtra v/s Damus/o Gopinath Shinde and others, AIR 2000 SC 1691, that mere assertion without mentioning the data or basis in support of his opinion is not evidence, even if it comes from an expert. It is held that such evidence though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value without examining the expert as a witness in Court. Therefore, no reliance can be placed on an opinion alone.

 

 

3.      Another important issue under consideration is that whether the Courts are bound by the opinion given by an expert on a particular fact in a case. Hon'ble Supreme Court has answered this question in the case titled as Malay Kumar Ganguly v/s Dr. Sukumar Mukherjee, wherein it has been held that, a Court is not bound by the evidence of the experts which is to a large extent advisory in nature.

In the present proceedings the three doctors, places their opinion on a request made by the opposite parties, without having any data, and or basis, thereof, and on being asked asserted that they will place medical text books at the time of argument in the present proceedings, and thus such opinions are not correct as those are not based upon any data, examples, and or on any accent of medical sciences, thus those are mere assertions of the O.P’s, versions, as requested by them, and whereas in view of such facts, the Hon’ble Forum, should not consider such opinion as shown as expert opinion by the O.P’s, as held in Hon’ble Supreme Court’s Judgment ( Supra ).

 

 

4.      It was held in A.R. Antulay v. R.S. Nayak, reported in (1988) 2 SCC 602 that per incuriam are those decisions, which are made in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that count to be demonstrably wrong.

 

The court held that it was not bound by the directions given in D’Souza’s case and expert evidence from a committee was not required.