LexMALAY KUMAR GANGULY versus DR. SUKUMAR MUKHERJEE AND OTHERS
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• [2009] 13 (ADDL.) S.C.R. 1 MALAY KUMAR GANGULY v. DR. SUKUMAR MUKHERJEE AND OTHERS (Criminal Appeal Nos. 1191-1194 of 2005) AUGUST 7, 2009 [S.B. SINHA AND DEEPAK VERMA, JJ.] CONSUMER PROTECTION ACT, 1986/PENAL CODE, 1860: Sections 12, 131304-A - Medical negligence - Criminal negligence - Patient treated by various doctors/Hospitals - Death - Allegation of negligence - Negligence must be of a gross or a very high degree to amount to criminal negligence A B c - To prosecute a medical professional for negligence under 0 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 complexities involved in the case as also differing nature of E negligence exercised by various hospitals and doctors make - it difficult to distil individual extent of negligence with respect to each of them - As such medical negligence under Section 304A cannot be objectively determined - An act which may constitute negligence or even rashness under torts may not amount to same under Section 304-A /PC - If a representation F is made by a doctor that he is a specialist and ultimately it turns out that he is not, deficiency in service would be presumed. Provisions of Evidence Act not applicable to Consumer G Commission - Commission to merely comply with principles of natural justice and the procedure laid down under Sections 12, 13 and the Rules made under tne Act - Certain doctors held negligent - Due to their negligent action, patient died as 1 H 2 SUPREME COURT REPORTS [2009] 13 (ADOL.) S.C.R. A a result of cumulative incidence - But doctrine of cumulative ~ effect not available under criminal law - However, contributory negligence cannot be attributed - Theory of informed consent - Discussed - In the Civil Appeal, matter remitted to National Consumer Commission for determining compensation B preferably within six months - Constitution of India, Articles 21, 136. COSTS - Imposition of- In view of the stand and conduct of certain parties, higher cost directed to be paid. c LEGAL DOCTRINES/PRINCIPLES: Principle of res ispa loquitur - Not strictly applicable in a criminal case. D Doctrine of legitimate expectation - Applicability of - Administrative Law. Doctrine of Cumulative effect - No available in criminal , 1 law. E The Criminal Appeals were preferred against the order of the High Court and the Civil Appeal arose against the judgment and order of the National Consumer Commission. The matters relate to alleged criminal ~ negligence/medical negligence. The patient, .settled ·in F USA, came to India and suffered some health problem and was treated in Calcutta and later in Bombay. The High Court dismissed the Criminal Revision Petitions filed by the complainants and allowed the appeals filed by the Respondent-Doctors, thus setting G aside their conviction and sentence. Dismissing the Criminal Appeals and remitting the -1. , matter in the Civil Appeal to the National Consumer ' Commission, the Court H ..• MALAY KUMAR GANGULY v. DR SUKUMAR 3 . MUKHERJEE AND ORS. HELD: 1. The court for the purpose of arriving at a A decision on the basis of the opinions of experts must take into consideration the difference between an 'expert witness' and an 'ordinary witness'. The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether s such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence. [Para 1 OJ (58-E-F] State of H.P. v. Jai Lal and others, (1999) 7 sec 280, C relied on. 2.1. It is true that ordinarily if a party to an action does not object to a document being taken on record and the Y same is marked as an exhibit, he is estopped and D precluded from questioning the admissibility thereof at a later stage. It is, however, trite that a document becomes inadmissible in evidence unless author thereof is examined; the contents thereof cannot be held to have been proved unless he is examined and subjected to E cross-examination in a court of law. [Para 12] (60-0-E] 2.2. The document which is otherwise inadmissible cannot be taken in evidence only because no objection to the admi
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