A.SRIMANNARAYANA Vs DASARI SANTAKUMARI
Bench: SURINDER SINGH NIJJAR,ANIL R. DAVE
Case number: C.A. No.-000368-000368 / 2013
Diary number: 26923 / 2010
Advocates: R. CHANDRACHUD Vs
RAMESHWAR PRASAD GOYAL
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1 REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 368 OF 2013 [Arising out of S.L.P (C) No.26043 of 2010]
A. Srimannarayana ... Appellant
VERSUS
Dasari Santakumari & Anr. …Respondents
WITH
CIVIL APPEAL NO. 369 OF 2013 [Arising out of S.L.P (C) No.1495 of 2011]
O R D E R
1. Delay condoned.
2. Leave granted.
3. These appeals arising out of the aforesaid
special leave petitions have been filed against
the judgment and order dated 15.07.2010 in R.P.
No. 2032 of 2010 passed by the National Consumer
Disputes Redressal Commission (hereinafter
referred to as “the National Commission”), New
Delhi.
4. Relevant facts are taken from Special Leave
Petition (C) No.26043 of 2010.
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2 5. The appellant and respondent No.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 13.07.2008.
Respondent No. 1, wife of the deceased, filed a
complaint against the appellant and respondent
No.2, before the District Consumer Forum. We may
notice here that respondent No.2 is the appellant
in Civil Appeal No………………………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 No.2. 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 reported in Martin F. D’Souza Vs. Mohd.
Ishfaq (2009) 3 SCC 1. In this revision petition,
respondent No.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
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3 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. The revision petition has been
dismissed by the National Commission by relying
upon the subsequent judgment of this Court in V.
Kishan Rao Vs. Nikhil Super Speciality Hospital &
Anr. (2010) 5 SCC 513, wherein this Court has
declared that the judgment rendered in Martin F.
D’Souza (supra) is per incuriam. Hence the
present special leave petitions challenging the
aforesaid order of the National Commission dated
15.07.2010.
6. Heard Mr. Rao, learned counsel appearing on
behalf of the appellant and respondent No.2 and
Mr. K.K. Kishore, learned counsel appearing on
behalf of the respondent No.1, at length.
7. Mr. Rao has tried to persuade us that the
judgment of this Court in the case of V. Kishan
Rao Vs. Nikhil Super Speciality Hospital & Anr.
(supra), has erroneously declared the earlier
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4 judgment of this Court in the case of Martin F.
D'Souza Vs. Mohd. Ishfaq (supra) as per incuriam,
on a misconception of the law laid down by a
three-Judge Bench of this Court in Jacob Mathew
Vs. State of Punjab & Anr., (2005) 6 SCC 1. We are
not inclined to accept the submission made by Mr.
Rao. The judgment in Jacob Mathew (supra) 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
paragraph 48 of Jacob Mathew (supra) leave no
manner of doubt that in the aforesaid judgment
this Court was concerned with a case of medical
negligence which resulted in prosecution of the
concerned doctor under Section 304A of the Indian
Penal Code. We may notice here the relevant
conclusions which are summed up by this Court as
under:
xxx xxx xxx xxx
xxx xxx xxx xxx
“(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
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5 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 304A of 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 304A of the 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.”
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6
8. The guidelines in Paragraph 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 :-
“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 suf- fering. 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
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7 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 op- eration and a quivering physician can- not 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 sur- geon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician success- fully administer the life-saving dose of medicine. Discretion being the bet- ter part of valour, a medical profes- sional 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 prosecu- tion if his effort fails. Such timidity forced upon a doctor would be a disser- vice to society.”
9. The aforesaid observations leave no manner
of doubt that the observations in Jacob Mathew
(supra) were limited only with regard to the
prosecution of doctors for the offence under
Section 304A 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 the
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8 case of Martin F. D’Souza (supra) has been
correctly declared per incuriam by the judgment in
V. Kishan Rao (supra) as the law laid down in
Martin F. D’Souza (supra) was contrary to the law
laid down in Jacob Mathew (supra).
11. In view of the above, we are of the opinion
that the conclusions recorded by the National
Commission in the impugned order does not call for
any interference. The civil appeals are dismissed.
…………………………………………………………J. [Surinder Singh Nijjar]
………………………………………………………J. [Anil R. Dave]
New Delhi; January 09, 2013.