2009 (9) TMI 931

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....eans 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. 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 suggest that the problem was aggravated and there was need for another operation. Dr.I.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 Institute of Mental Health and Neurological Sciences, New Delhi (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. 3) COMPLAINT BEFORE THE NATIONAL COMMISSION: The appellant, be....

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....ther  contended that pursuant to the order 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 appellant. However, the Registry had not sent 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 Commission. 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 Commission. 8) We have heard the learned counsel for the parties to the lis. 9) POTT'S DISEASE AND PROTOCOL OF TREATMENT: i) The Disease 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 the skeletal system for an extended p....

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....aminectomy .html] 10) CLEAVAGE OF OPINION: Since medical science is complicated, expert opinion provides deep insight. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and  Ors.) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, 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 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: The law of evidence is designed to ensure that the court 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 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. T....

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....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 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 Titli v. Jones (AIR 1934 All 237) that 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. 15) 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 to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by th....

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.... of the Act. 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 the complainant to the Registrar of the Commission to enable him to forward it to Dr. A. K. Singh, along with the complaint and also the affidavits 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, 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 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 examinations were enclosed either in original form or in the form of copies. b) No details of findings at surgery are provided. c) No details of operative findings have been provided. Only the surgi....

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....al and important information, the expert was handicapped in giving his opinion on the basis of which the order of the Commission was to be passed. It is very much clear from the report of Dr. A. K. 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 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 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 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 e....