IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISIDICTION)
SPECIAL LEAVE PETITION (C) NO. 27071 OF 2010
(Against the Impugned Final Order dated 7.9.2010 in M.A. No.594/2010
in OP. No. 240/1999 passed by the Hon’ble National Consumer Redressal
Commission (NCDRC), New Delhi).
IN THE MATTER OF:
…Petitioner
Dr. Kunal Saha
Versus
Dr. Sukumar Mukherjee and Others
...Respondents
WITH
I.A. NO. _________ OF 2010
PAPER BOOK
[FOR INDEX PLEASE SEE INSIDE]
ADVOCATE FOR THE PETITIONER : T.V.GEORGE
INDEX
SL.NO.
PARTICULARS
PAGE NO.
1.
Office Report on Limitation
A
2.
Listing Performa
A1 – A2
3.
Modified Check list
A3-
4.
Synopsis and List of Dates
B–
5.
6.
7.
A5
Impugned Judgment & Final Order dated
7.9.2010 in MA. No.594/2010 in OP. No.
240/1999 passed by the Hon’ble National
Consumer Redressal Commission (NCDRC),
New Delhi
Special Leave Petition with Affidavit
Annexure P/1 : A copy of the judgment and final
Order of C.A. No. 1727/2007 passed by the
Hon’ble Supreme Court dated 07.08.2009.
8.
Annexure P/2 : A copy of the final order dated
26.04.2010 in M.A. No. 200/2010 in O.P.
No. 240/1999 passed by the Hon’ble National
Consumer Redressal Commission (NCDRC),
9.
Annexure P/3 : A copy of the order dated
17.5.2010 in SLP (Civil) No. 15070/2010
passed by the Hon’ble Supreme Court.
10.
Annexure P/4 : A copy of the M.A. No.
594/2010 in O.P. No. 240/1999
11.
Annexure P/5 : A copy of the reply filed by
Respondents No. 1& 2 dated Nil.
12.
Annexure P/6 : A copy of the reply filed
by Respondent No.3 dated Nil.
13.
Annexure P/7 : A copy of the rejoinder filed by the applicant dated
11.08.2010
SYNOPSIS
The present Special Leave Petition is filed against the final order by
the National Consumer Dispute Redressal Commission (NCDRC) in
M.A. no. 594/2010 in O.P. no. 240/1999. The O.P. No. 240/1999 was
filed against the Respondent doctors and hospital seeking compensation
for wrongful death of Petitioner’s wife, Anuradha Saha. The O.P. no.
240/1999 was dismissed by the NCDRC in 2006 against which the
Petitioner filed an application before this Hon’ble Court vide Civil Appeal
no. 1727/2007 which was allowed by this court through a final judgment
on August 7, 2009 in which this Hon’ble Court held the Respondent Nos.
1-4 herein, guilty for medical negligence and responsible for the death of
Anuradha Saha, a child psychologist and naturalized citizen as well as
permanent resident of USA. The Apex Court also remanded the case back
to the NCDRC only for the purpose of determining the quantum of
compensation “as expeditiously as possible and preferably within six
months from the receipt of the order”. It was further directed by this
Hon’ble Court that “foreign experts” if any, may be examined only
through videoconferencing and at the cost of the Respondents.
Accordingly, the Petitioner filed an application before the
NCDRC vide M.A. No. 200/2010 for taking on record the opinions of four
experts from the field of economic, legal and psychology, from USA on
the question of the quantum of damages since this case involves
calculation of damages based on the status and standard of living in the
USA since both the victim and her husband were educated and
permanently settled in the USA. This has been clearly indicated in the
final judgment passed by this Court on August 7, 2009. This Hon’ble
Court previously took a similar position for calculation of compensation
when a permanent resident and citizen of USA suffered wrongful death
during a visit to India in United India Insurance Company vs. Patricia
Jean Mahajan & Ors. [2002 (6) SCC 281].
Unfortunately, the NCDRC was pleased to dismiss M.A.
200/2010 based on the argument by the Respondents that the “foreign
experts” as referred by the Apex Court in the final judgment for further
examination through videoconferencing was only to give liberty to the
Respondent doctors/hospital to “cross-examine” the foreign medical
doctors who provided opinions in support of the Petitioner to establish
“medical negligence”. This argument was obviously without any merit
whatsoever because this Hon’ble Court had already unequivocally held
the four Respondents (plus one Dr. Abani Roychowdhury who passed
away last year as this matter was pending before the NCDRC) guilty for
“medical negligence” causing the untimely death of Petitioner’s wife;
therefore, there can be no question of any further examination or
cross-examination of medical doctors to prove or disprove “medical
negligence”.
Furthermore, it is undisputed that this Hon’ble Court
remanded the case back to the NCDRC only for determination of the
quantum of compensation. Thus, there can be no question of allowing
the Respondents to cross-examine the medical doctors for a re-look at the
issue of “medical negligence”. Unfortunately, the NCDRC dismissed
M.A. 200/2010 by agreeing with the overtly absurd argument presented
by the Respondents that by examination of “foreign experts”, the Apex
Court actually meant cross-examination of the foreign medical doctors
who has deposed earlier.
Aggrieved by the dismissal of the M.A. 200/2010, the
Petitioner approached this Hon’ble Court with a Special Leave Petition
(SLP Civil No. 15070/2010) for not allowing opinions of the four
economic/psychology/legal experts from USA to help with the question of
the quantum of compensation as directed in the final judgment by this
Hon’ble Court. After hearing the counsel, this Court was pleased to pass
the following order on May 17, 2010:
“After arguing the case for a while, learned senior
counsel
appearing
for
the
petitioner
made a request that his client may be permitted to
withdraw this special
liberty
to
leave
petition with
avail opportunity of examining
foreign experts through video-conferencing
terms
of
the
order
passed
by
in
this
Court. The special leave petition is dismissed as
withdrawn in terms of the prayer made.”
Accordingly, the Petitioner filed a new application (vide M.A.
594/2010) on May 21, 2010 before the NCDRC with specific prayers to
get an opportunity to examine the four economic/psychology/legal experts
from USA through “videoconferencing” at the cost of the Respondents as
previously directed by this Court in the final judgment on August 7, 2009.
With the application, the Petitioner also provided personal letters from the
four USA-based experts indicating their willingness to testify through
videoconferencing and also provided a letter from a reputed international
IT company showing the estimated cost for conducting videoconferencing
between India and USA, which the Respondents must pay as per the final
judgment passed by this Hon’ble Court
The Respondent nos. 1 and 2 jointly filed an affidavit in opposition
of the M.A. 594/2010. Incredibly, they raised the exact same argument
as before that by examination of “foreign experts” in the final judgment,
the Apex Court actually gave the Respondents doctors and hospital liberty
to examine the medical experts previously produced by the Petitioner.
Ironically, the Respondent no. 3 (AMRI Hospital) submitted that there is
no
need
to
go
through
the
huge
expenses
involved
for
“videoconferencing” between USA and India, instead the experts from
USA may be examined through the use of high-speed Internet using free
services like Skype or Yahoo Messenger which the hospital’s own IT
department can organize in Delhi without any cost. In fact, the Petitioner
did not raise any objection to the proposal by the Respondent no. 3 to
conduct the “videoconferencing” of foreign experts through free Internet
services.
Unfortunately, after adjourning the date of the final order on four
different occasions, the NCDRC eventually passed the final order on
September 6, 2010 by dismissing the M.A. 594/2010 in the most shocking
and capricious manner on basically the exact same ground they previously
dismissed the M.A. 200/2010, i.e. that the Apex Court did not permit any
foreign experts to examine in the final judgment on August 7, 2009. In
other words, the NCDRC once again agreed with the contentions of the
Respondent nos. 1 and 2 that the categorical direction given by the
Supreme Court in the final judgment that “We further direct that if any
foreign experts are to be examined, it shall be done only through video
conferencing and at the cost of respondents” actually was meant to give
an option to the Respondents to cross-examine the medical experts
previously produced by the Petitioner despite the fact the previous order
(in M.A. 200/2010) passed by the NCDRC on April 26, 2010 was
challenged by the Petitioner and this Hon’ble Court was pleased to give
liberty to the Petitioner “to avail opportunity of examining foreign experts
through video-conferencing” as directed in the final judgment. While the
NCDRC also implicitly raised some concern about “foreign experts”, but
did not in any way challenge the qualifications of the four USA-based
economic/legal/psychology experts produced by the Petitioner for
examination through videoconferencing.
These four individuals are
highly qualified in USA (their resumes were previously submitted before
the NCDRC) in their respective fields of economy, law and psychology
who can shed lights to help the NCDRC to come to a just quantum of
compensation in the proper context of this unique case. The operative
portion of the Order passed by the NCDRC while dismissing M.A.
594/2010 on September 6, 2010 reads as follows:
“Reading of the remand order dated 7.8.2009 in its entirety would
show that the complainant has not been permitted to lead
additional evidence on the point of quantum of compensation and
apportionment thereof between the said opposite parties and
complaint has to be decided on the basis of material available on
record. Further, as regards recording of the statements of said
four foreign experts, it may be stated that there is difference
between an expert witness and an ordinary witness.
Expert
witness is one who has a special skill or knowledge on a subject and
is not a witness of fact.
Determination of compensation and
apportionment thereof has to be based on facts. Indisputably,
affidavits of aforesaid four persons was declined to be taken on
record and read in evidence vide order dated 26.4.2010.
Presumably, the statements of the above foreign experts would be
on the lines their affidavits were filed.
By the order dated
17.5.2010, the Supreme Court has permitted the complainant to file
application only in terms of the order dated 7.8.2009.
For
deciding the issue in question, the statements of aforesaid persons
who are strictly not the foreign experts, cannot be permitted to be
lead by the complainant.
Application thus, deserves to be
dismissed being without merit.”
LIST OF DATES AND EVENTS
7.08.2009:
The Hon’ble Supreme Court allowed the C.A. No.
1727/2007 and remitted the O.P.No. 240/1999 back to
the NCDRC for the sole purpose of determining the
quantum of compensation as expeditiously as possible
and preferably within 6 months. A copy of the
judgment and final order C.A. No. 1727/2007 dated
07.08.2009 is annexed hereto and is marked as
ANNEXURE P/1. (Pages :
24.08.2009:
to
)
The complainant filed an application before the
Hon’ble NCDRC for an early hearing and disposal of
O.P. No. 240/1999 in view of the Apex Court’s
specific direction for expedited disposal of the matter.
06.10.2009:
A letter received from the Hon’ble NCDRC that O.P.
No. 240/1999 which was remitted back by the Hon’ble
Supreme Court has been fixed for hearing on
24.11.2009.
24.11.2009:
In order to avoid further delay in the case, the
Petitioner
withdrew
his
application
(M.A.No.
1266/2009) that was previously filed for impleadment
of the Legal Heirs of Op. no.3 (Dr. Abani
Roychowdhury) who passed away after the delivery of
the Supreme Court judgment on August 7, 2009.
7.1.2010:
The Respondent no. 3 filed a new application (M.A.
No. 13/2010) for impleadment of the Breach Candy
Hospital even though this Hon’ble Court has already
decided that the Breach Candy Hospital was in no way
responsible for Anuradha’s death. But despite outright
rejection of any role of Breach Candy Hospital by this
Hon’ble Court in the final judgment, the Hon’ble
NCDRC issued a notice to the petitioner/complainant
on the overtly frivolous application by the Respondent
No. 3 to implead the Breach Candy Hospital.
15.01.2010:
The matter was adjourned again for arguments to
25.01.2010.
25.01.2010:
The matter is adjourned again to 28.01.2010
28.01.2010:
The matter was adjourned once again to 09.02.2010
for argument because of the file was not circulated.
11.02.2010:
As previously directed by the NCDRC, the petitioner
filed a compilation of the documents that contained
only
the
opinions
of
the
four
economic/legal/psychology experts from USA and
their resumes to be taken on record to avoid any
further objections/delays.
15.02.2010:
The MA. No. 13/2010 filed by the Respondent no. 3
for impleadment of the Breach Candy Hospital was
dismissed by the NCDRC.
22.02.2010:
A formal application filed by the petitioner being MA.
No. 200/2010 for taking on record the opinions of
four
“foreign
experts”
economy/law/psychology
in
from
USA
on
of
the
support
compensation claimed by the petitioner.
23.02.2010:
The NCDRC gave another three weeks time to the
Respondents to file their reply even though the same
foreign experts’ opinions were previously filed by the
petitioner but was withdrawn later only for a technical
reason to avoid unnecessary delays
23.03.2010:
Arguments were heard from all parties by the Hon’ble
NCDRC in MA. No. 200/2010 and order reserved for
5.04.2010.
5.04.2010:
No order was not pronounced by the Hon’ble NCDRC
and the matter was adjourned till 12.04.2010.
12.04.2010:
No order was not pronounced by the Hon’ble NCDRC
and the matter was adjourned till 20.04.2010
20.04.2010:
No order was pronounced and the matter was again
adjourned till 26.04.2010.
26.04.2010:
The
order was pronounced by the NCDRC
dismissing the application by the petitioner for taking
on record the opinion of the four USA-based “foreign
experts” filed in support of the quantum of
compensation claimed by the petitioner. A copy of the
final order dated 26.04.2010 in M.A. No. 200/2010 in
O.P. No. 240/1999 passed by the Hon’ble National
Consumer Redressal Commission (NCDRC), New
Delhi, is annexed here to and its marked as Annexure
P/2.(Pages :
17.05. 2010
to
)
A Special Leave Petition (Civil) No. 15070/2010 was
filed by the petitioner against the aforesaid impugned
order/judgment in M.A. No. 200/2010 in O.P. No.
240/1999 which came up for consideration when this
Hon’ble Court was pleased to allow the petitioner to
withdraw the said SLP with liberty to avail opportunity
of
examining
foreign
experts
through
videoconferencing in terms of the previous order
passed by this Hon’ble Court on 7.8.2009. A copy of
the order dated 17.5.2010 in SLP (Civil) No.
15070/2010 passed by this Hon’ble Court is annexed
herewith and marked as ANNEXURE P-3.
:
21.5.2010
to
(Pages
)
Pursuant to the aforementioned order dated 17.5.2010
passed this Hon’ble Court, the petitioner filed an
application being M.A. No. 594/2010 before the
Hon’ble NCDRC. A copy of the M.A. No. 594/2010 in
O.P. No. 240/1999 is annexed herewith and marked as
ANNEXURE P-4.(Pages :
28.07.2010
to
)
The M.A. No. 594/2010 was taken up and the
Respondents were given opportunity to file objections
and the matter was fixed for argument on 19.8.2010.
Respondents 1 & 2 filed a common reply. A copy of
the reply filed by Respondents No. 1& 2 dated Nil is
annexed hereto and is marked as ANNEXURE P/ 5
.
(Pages :
to
)
A copy of the reply filed by Respondent No.3 dated
Nil is annexed hereto and is marked as ANNEXURE
P/ 6 (Pages :
11.08.2010
to
)
The petitioner/Applicant filed a rejoinder. A copy of
the rejoinder filed by the applicant dated 11.08.10
is annexed hereto and its marked as ANNEXURE P/7
(Pages :
19.08.2010
to
)
After hearing arguments from both sides, the Court
fixed that final order will be passed on 26.8.2010.
26.8.2010
No order was delivered and the matter was adjourned
for final order on 3.9.2010.
3.9.2010
No order was delivered and the matter was adjourned
for final order on 6.9.2010.
6.9.2010
The M.A. 594/2010 in O.P.No. 240/1999 was
dismissed by the NCDRC vide the impugned order.
Hence the present Special Leave Petition.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISIDICTION
SPECIAL LEAVE PETITION (C) NO. 27071 OF 2010
IN THE MATTER OF
Position of Parties
Trial
In this
Court
Court
(Arising out of Final Order dated
7.9.2010 in MA. No.594/2010 in
OP. No. 240/1999 passed by the
Hon’ble (NCDRC), New Delhi).
IN THE MATTER OF :Dr. Kunal Saha
Permanent resident of:
3937, Kul Circle South
Hilliard, Ohio-43026, USA,
Local Resident of:
C-10, Ministry of External Affairs
Residential Complex 37-38
Dr. S. Radhakrishnan Marg Chanakya Puri,
New Delhi 110021
Applicant
Petitioner
Versus
1.
Dr. Sukumar Mukherjee,
1/1A, Tara Road, Calcutta – 70026.
as well as DA - 5, Salt Lake,
Calcutta – 700064.
2.
Resp.No.1 Resp. No.1
Dr. B. N. Haldar (Baidyanth Halder),
FE - 382, Sector – 3,
(Near number 12 water tank)
Salt Lake, Calcutta -700106.
Resp.No.2 Resp. No.2
3.
The Director,
Advanced Medicare and
Research Institute (AMRI),
P-4 & 5, C.I.T Scheme-LXXII
Gariahat Road,
Calcutta – 700029.
Resp. No.3
4.
Dr. Balram Prasad,
Advanced Medicare and
Research Institute (AMRI),
P-4 & 5, C.I.T Scheme-LXXII
Gariahat Road,
Resp.No.3
Calcutta – 700029.
Resp.No.4 Resp. No.4
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA
THE HUMBLE PETITION OF
THE PETITIONER
ABOVE
NAMED
MOST RESPECTFULLY SHOWETH:
1.
The petitioner/complainant prefers the above Special Leave Petition
(SLP) under Article 136 of the Constitution of India against the final
order passed by the Hon’ble National Consumer Redressal
Commission (NCDRC) vide Judgment, dated 6.9.2010 in MA. No.
594/2010 in OP. No. 240/1999, whereby the Hon’ble Commission
was pleased to dismiss the Miscellaneous Application for
examination of four USA-based “foreign experts” (two economists,
psychologist and legal experts) through videoconferencing, as
directed in the final judgment by this Hon’ble Court on August 7,
2010, for deciding the quantum of loss that resulted from the untimely
death of Petitioner’s wife.
Both late Anuradha and her doctor
husband were (are) citizens of the USA and were(are) permanently
settled in the USA for a very long time.
2.
Questions of Law:
A. Whether the NCDRC lost complete sight of the fact that the Hon’ble
Supreme Court allowed the Petitioner on May 17, 2010 to withdraw his
special leave
avail
petition (filed against M.A. 200/2010) “with liberty to
opportunity
of
examining
foreign
experts
through
video-conferencing”?
B.
Whether the NCDRC failed to appreciate that both in the final
judgment on August 7, 2009 (in response to C.A. No. 1727/2007) and
again on May 17, 2010 (in response to SLP Civil No. 15070/2010) that by
examination of “foreign experts” through videoconferencing, the Hon’ble
Apex Court clearly implied to give liberty to examine “foreign experts”
whose opinions may help to come to a just quantum of compensation in
this particular case?
C. Whether the NCDRC has failed to appreciate that “examination” is
not same as “cross-examination” in law? Since the very last sentence of
the final judgment by the Apex Court read, ““We further direct that if any
foreign experts are to be examined, it shall be done only through video
conferencing and at the cost of respondents”, the Supreme Court only
intended to give opportunity to the Petitioner to examine any foreign
experts, if he preferred to do so.
D. Whether the NCDRC remained totally oblivious of the fact that it had
previously dismissed M.A. 200/2010 on the sole ground that by “foreign
experts” actually implied the medical experts produced earlier by the
Petitioner to established “medical negligence” which was challenged and
returned by the Apex Court giving liberty to the Petitioner to examine
“foreign experts” through videoconferencing? Ironically, the NCDRC
once again dismissed M.A. 200/2010 on the very same ground in clear
disregard to the categorical observation made by the Hon’ble Supreme
Court?
E)
Whether the NCDRC has failed to appreciate that the four
economic/legal/psychology USA-based experts named by the Petitioner
have special knowledge and experience for calculation of financial
damages who could help the court to come to a just conclusion about the
quantum of compensation in the particular facts and circumstances in the
present case?
F) Whether the NCDRC has miserably failed to appreciate the simple
logic that after holding the Respondent doctors/hospital unequivocally
guilty for medical negligence and responsible for causing death of
Petitioner’s wife, the Hon’ble Supreme Court had absolutely no reason to
pass a specific direction giving liberty to the Respondents to
cross-examine the foreign medical experts?
G) Whether the Hon’ble commission has failed to appreciate that the
deceased Anuradha Saha was a naturalized citizen of USA who was also
educated in USA and who had been working and would have continued to
work in USA and therefore the opinion of USA-based “Foreign Experts”
on the question of damages is necessary for the purpose of determining a
just and fair compensation to be awarded in the case?
3.
DECLARATION IN TERMS OF RULE 4 (2)
The petitioner states that no other petition for Special Leave to
Appeal against the impugned final order, dated 6.9.2010 passed by the
NCDRC in MA. No. 594/2010 in OP. No. 240/1999 has been filed by him
before this Hon’ble Court.
4.
DECLARATION INTERMS OF RULE 6
That Annexures P/1 to P/
annexed with this Special Leave
Petition are True/ Typed copy of the pleadings/ Documents which formed
part of the Proceedings in the Hon’ble NCDRC at New Delhi, against
whose order the Leave to Appeal is sought for in this Special Leave
Petition.
5.
Grounds
A.
Because the Hon’ble NCDRC has miserably failed to appreciate the
real implication for the direction given by the Hon’ble Supreme Court in
the last sentence of its judgment while disposing of the Civil Appeal (C.A.
1727/2007) as the court has categorically stated, “We further direct that if
any foreign experts are to be examined it shall be done only through video
conferencing and at the cost of respondents”. It should be clear even to an
ordinary man of common sense and prudence that the “foreign experts”
referred by the Hon’ble Supreme Court in the last sentence of the
judgment could only mean “foreign experts” who may shed lights and
help the Hon’ble Commission on the question of quantum of
compensation because of the unique nature of this case.
The
compensation for the wrong death of Anuradha and the pain/suffering for
her husband must be calculated in view of their status and condition in the
USA since both of them were settled permanently in the USA. In a case
of similar nature, when an NRI who was also permanently settled in the
USA died during a social visit to India, the Hon’ble Supreme Court has
taken a similar view and awarded compensation for the victim’s family
based on their status and standard of living in the USA [United India
Insurance Company vs. Patricia Jean Mahajan & Ors. 2002 (6) SCC
281].
B.
Because the Hon’ble NCDRC has failed to apply its mind in
passing a perverse order while dismissing M.A. No. 594/2010 on Sept. 6,
2010 on the very same ground that it had earlier dismissed M.A. 200/2010
on April 26, 2010 (i.e. by “foreign experts”, the Apex Court meant foreign
medical doctors who previously testified in this case) in candid disregard
to the order passed on May 17, 2010 by the Supreme Court which
permitted the Petitioner to withdraw the SLP to allow him to go back to
the NCDRC for examination of economic/legal/psychology “foreign
experts” through videoconferencing.
C.
Because the NCDRC has made a grave error in judgment by failing
to appreciate the clear indications given by the Hon’ble Supreme Court on
two separate occasions, first with the final judgment on August 7, 2009
and then while disposing the SLP on May 17, 2010, that the Petitioner is
allowed to examine “foreign experts” only through videoconferencing at
the cost of Respondents.
D. Because the NCDRC has failed to appreciate that the four USA-based
experts on economy/law/psychology have special skills to assist the
Commission to come to a just quantum of compensation in the unique
context of this particular case because both the victim and her husband are
citizens and permanent residents of USA.
E.
Because
the
NCDRC
has
failed
to
recognize
that
economic/legal/psychology experts’ opinions from USA will have
important ingredients to satisfy the principles for determining the
compensation in this case since in the final judgment on August 7, 2009,
the Hon’ble Supreme Court has categorically mentioned that
compensation in this case would depend “upon her (Anuradha Saha)
educational qualification, her own upbringing, status, husband's income,
etc.………. The Commission must, therefore, while arriving at the
adequate compensation bear in mind all these relevant facts and
circumstances”. The opinions of the economic/law/psychology “foreign
experts” from USA as to Anuradha’s future prospects of earning as well as
the damages for her husband’s pain/suffering are also important for
NCDRC to learn to come into a just and fair amount of compensation in
this case.
F.
Because the Hon’ble NCDRC has failed to appreciate that even the
Respondent no. 3 (AMRI Hospital) did not oppose the notion of
examination of “foreign experts” through videoconferencing. While the
Respondent no. 3 has objected against Prof. Burke (economist), Ms. Hill
(CPA) and Mr. Griffith (legal expert) for various reasons, they claimed
that since the victim, Anuradha Saha, was a psychologist, only a
psychologist might shed lights to the quantum of loss in this particular
case. Although the Respondent no. 3 has said that the psychology expert,
Prof. John Broughton, did not provide a letter that he would be willing to
testify through videoconferencing (in fact Prof. Broughton did provide a
letter in support previously), they did not object admission of opinions of a
psychology expert in this case. However, the Respondent no. 3 raised
objection
against
the
high
cost
of
satellite-based
formal
“videoconferencing” and proposed to conduct the videoconferencing only
through the Internet through free Skype or Yahoo Messenger.
The
Petitioner raised no objection for conducting the videoconferencing using
the Internet which would save a lot of money for the Respondents.
G. Because the Hon’ble Commission has miserably failed to adhere to
the specific directions given by the Hon’ble Supreme Court for
expeditious disposal of the instant case. Instead, this matter has suffered
inordinate delay at the NCDRC and despite specific directions by the
Apex Court to dispose this matter “preferably within 6 months”, the case
has lingered with repeated adjournments at the NCDRC with no end in
sight even after more than 13 months.
6.
GROUND FOR INTERIM RELIEF
Because the petitioner has an excellent prima facie case for the reasons
stated above. The balance of convenience is in favour of the petitioner
and the petitioner will suffer irreparable damages if the OP. No. 240/1999
is decided in the absence of these foreign experts’ opinions.
7.
MAIN PRAYER
It is therefore most humbly prayed that this Hon’ble Court may;
a.
grant Special Leave to Appeal against the Impugned Final
Order dated 7.9.2010 in MA. No.594/2010 in OP. No.
240/1999
passed
bythe
Hon’ble
National
Consumer
Redressal Commission (NCDRC), New Delhi.
B
.PASS such other reliefs as this Hon’ble Court deems fit and
proper in the facts and circumstances of the case.
8. INTERIM PRAYER.
Direct the Hon’ble NCDRC to record the examination of foreign
experts produced by the petitioner through video conferencing leaving
arguments on the admissibility of the expert evidence at the time of final
arguments.
AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IS
DUTY BOUND SHALL EVER PRAY
DRAWN & FILED BY
[T.V.GEORGE]
Advocate
for
the
Petitioner
NEW DELHI
Drawn on : 06 - 09 -2010
Filed on :
15 -09 -2010
IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISIDICTION)
SPECIAL LEAVE PETITION (C) NO. _______ OF 2010
IN THE MATTER OF:
Dr. Kunal Saha,
…Petitioner
Versus
Dr. Sukumar Mukherjee and others
...Respondents
CERTIFICATE
Certified that the Special Leave Petition is confined only to the
pleading before the Court / Tribunal whose order is challenged and the
documents relied upon in those proceedings. No additional facts,
documents or grounds have been taken on relief upon in the Special Leave
Petition. It is further certified that the copies of the documents / annexures
attached to the Special Leave Petition are necessary to answer the question
of law raised in the petition or to make out grounds urged in the Special
Leave Petition for consideration of this Hon’ble Court. This certificate is
given on the basis of the instructions given by the petitioner / petition
authorized by the petitioner whose affidavit is filed in support of the
Special Leave Petition.
DRAWN
&
FILED
BY
[T.V.GEORGE]
Advocate for the Petitioner
New Delhi
Dated : 15 -09-2010
Annexure P/ 5
BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION: NEW DELHI
ORIGINAL PETITION NO. 240 OF 1999
IN THE MATTER OF:
Dr. Kunal Saha,
…Petitioner
Versus
Dr. Sukumar Mukherjee and others
...Opposite Parties
REPLY ON BEHALF OF OPPOSITE PARTIES NO. 1 & 2
PRELIMINARY SUBMISSION
1.
It is submitted that after the order of remand of the matter to this
Hon’ble Commission by the Hon’ble Supreme Court of India for
determining the quantum of compensation to be paid to the
complainant, the complainant filed a fresh complain under section
21 of the Consumer Protection Act 1986 dated 11/9/2009 which
was filed by the complainant in person and supported by his
affidavit dated 9/11/2009 verified at Hilliard, Ohio, United States
of America. That in the said fresh complaint the complainant
inter- alia prayed for the following reliefs:
“a)
To admit the claim for compensation along with the
supporting documents filed including the opinion of the
foreign experts.
b)
To direct the Ops to arrange for cross examination of the
foreign experts if they so wish through video
conferencing at their expense
as directed by the Hon’ble
Supreme Court.
c)
To fix this matter for final hearing as soon as possible on a
firm and fixed date to enable the petitioner who intends to
argue in person as he did before the Hon’ble Apex Court
to come down from his permanent residence in USA.”
2.
That on 24/11/2009 the Opposite Party brought to the notice of
this Hon’ble Commission that the complainant has filed a fresh
complaint petition with fresh prayers as aforesaid for adjudication
after the remand which he is not entitled to do for the reason that
the Hon’ble Supreme Court remanded the complaint filed
originally by the complainant only for determining the quantum of
compensation and therefore this Hon’ble Court is to adjudicate the
same on the basis of the original complaint and the records and
documents filed along with the original complaint filed before this
Hon’ble Commission.
3.
That on this the counsel for the complainant requests for allowing
him to amend the documents at page 1 to 24 filed on 16/11/2009.
I.e. the said fresh complaint petition filed by the complainant in
person after the remand of the matter.
4.
That after taking the aforesaid liberally from this Hon’ble
Commission the Counsel of the complainant filed an application
under his signature supported by his own affidavit for rectification
of clerical mistake. It is submitted that in the supporting affidavit
the advocate for the complainant gives a statement that the fact
regarding the clerical mistake in the said fresh complaint is true
and correct to his personal knowledge.
5.
It is submitted that the fresh complaint petition (of which the
rectification of clerical mistake has been sought for in the instant
application) was filed by the complainant in person supported by
his own affidavit which was verified a Hilliard, Ohio, USA and
therefore,
the
circumstances
advocate
for
the
complainant
under
no
acting in his personal capacity can seek
rectification of clerical
mistake committed by the complainant.
It is submitted that from the bare reading of the application it is
not clear that who’s clerk
has committee the said mistake,
whether it is the clerk of the
counsel or the clerk of the
complainant.
It is submitted that since the fresh complaint was filed by the
complainant himself it cannot be the clerk of the counsel who has
committed the mistake and therefore, the instant application
supported by the affidavit of the advocate of the complainant
is
erroneous and cannot be accepted.
6.
That the advocate for the complainant by this instant application
is now seeking merely to rectify in the page 3 and 4 of the fresh
complaint by changing the heading as “Affidavit of Dr. Kunal
Saha”.
7.
It is submitted that in the fresh complaint petition of which the
advocate for the complainant is seeking rectification of clerical
mistake contains fresh submissions, which were not part of the
record of the complaint filed before this Hon’ble Commission,
which was taken to appeal before the Hon’ble Supreme Curt. It is
submitted that all the annexure referred to in the said fresh
complaint which has now been sought to be renamed as “Affidavit
of Dr. Kunal Saha” were never part of the record of the original
complaint filed before this Hon’ble Commission and has never
been pleaded by the complainant. It is submitted that the affidavits
of three foreign experts referred to in paragraph 3 of the instant
application were never part of the records of the case in the
Original Complaint and were neither placed before the Hon’ble
Supreme Court.
8.
It is submitted that the instant complaint has been remanded back
by the Hon’ble Supreme Court for determination of quantum of
compensation which obviously has to be determined on the basis
of the documents and pleadings of the case which were part of its
record and o the basis of which the complaint was decided by this
Hon’ble Commission which was taken to appeal before the
Hon’ble Supreme Court and which was remanded back to this
Hon’ble Commission foe determination of the quantum of
compensation.
9.
It is submitted that the counsel for the respondent in paragraph 3
has referred to add davits of three foreign experts. It is submitted t
hat this Hon’ble Court in it’s order dated 3/12/2009 has also
referred to the three affidavits of foreign experts filed by the
complainant. It is submitted that those three affidavits were never
filed earlier by the complainant along with the original complaint
or during the course of adjudication of the said complaint and
therefore, at this stage the same cannot be permitted to be taken
on record by way of an affidavit.
10
It is submitted that the Hon’ble Supreme Court in the order of
remand has directed that if foreign experts are to be examined it
shall be done only through video conferencing at the cost of
respondents.
It is submitted that the said direction has been passed in reference
to the opinion of the foreign experts that the complainant has filed
in the proceedings before the Criminal Court wherein the
Criminal Trial under Section 304 A was conducted. And which
were also filed before this Hon’ble Commission in the
complaint at the time of adjudication of the complaint.
It is submitted that since the opposite party raised a categorical
objection with regard to admissibility of the said opinion of the
foreign experts and which connection was accepted by this
Hon’ble Commission while deciding the complaint petition the
occasion for cross examining the same by the opposite parties
could not arose.
However the Hon’ble Supreme Court in the order of remand
accepted the said opinion of foreign expert and for the reason that
the opposite parties had no occasion to cross-examine them, the
Hon’ble Supreme Court directed by giving liberty that the said
opinion of the foreign experts can be examined through video
conferencing.
11.
It is submitted as per the established principle of law in a case
which has been remanded back by a Higher Court to the court
subordinate to it, the subordinate court has to decide the case on
the basis of the documents available on it’s record unless the court
remanding the matter directs for de novo trial of the case.
In the instant complaint the Hon’ble Supreme Court has in fact
decided the matter on merit holding the opposite parties negligent
in so far as Civil negligence is concerned and so far as criminal
negligence the Hon’ble Supreme Curt has accepted the Judgment
of the Hon’ble High Court acquitting the OP no. 1, 2 and 3 from
the charges of the Criminal Negligence.
12.
That further in the Order of Remand dated 7/8/2009 the Hon’ble
Supreme Court while determining the point of contributory
negligence on the part of the complainant held that the
contributory negligence on the part of complainant should have
some role to play for the purpose of damages.
13.
It is submitted that in these proceedings before this Hon’ble
Commission after the remand the Hon’ble Supreme Court has not
given any liberty to the complainant for a de novo trial and
therefore the complainant cannot be permitted to file fresh
evidence.
14.
It is submitted that by way of an affidavit a party to a proceeding
cannot make fresh prayers. For seeking a relief from a Court, a
party to a proceeding has to file an application stating the prayers.
That by way of the application under reply the counsel for the
complainant is praying for permitting the complainant to rectify
the clerical mistake in a complaint and praying for treating the
fresh complaint to be an affidavit. However, while seeking such
rectification the advocate for the complainant has retained the
prayer clause in the said affidavit by the complainant, which is
absolutely misconceived and un-sustainable and is therefore liable
to be out-rightly rejected.
15.
It is submitted that by permitting the advocate for the complainant
to rectify the clerical mistake and by treating the fresh complaint
as an “affidavit of the complainant” this Hon’ble Commission
may actually allow the complainant to introduce fresh evidence
and
new plea an prayers which were not part of record of the
original complaint. It is not humbly submitted that grant of such
prayer cannot be permitted in the present case for the reason that
the Hon’ble Supreme Court after hearing the appeal filed by the
complainant against the dismissal of the complainant, has been
pleased to allow the said complaint and remitted back the
complaint to this Hon’ble Commission only for determination of
the quantum of compensation.
16.
REPLY ON MERITS
16.1 That the para no. 1 is matter of record and needs no reply
16.2 That with regard to contents of para no. 2 it is submitted that the
Hon’ble Supreme Court has not directed this Hon’ble commission
to dispose off the matter within as expeditiously as possible and
preferably within six months from the receipt of the copy of the
judgment. The rest of the contents of the para needs no reply.
16.3 That the contents of para no. 2 is a matter of record,. However, it
is submitted that the affidavits refereed to in the instant paragraph
to reply cannot be permitted to be taken on record and is liable to
rejected. The answering opposite parties no. 1 and 2 has stated
reasons for not permitting the applicant to file the said affidavits
other documentary evidence in the preliminary submissions which
to be read as a part and parcel of this para also.
16.4 That the contents of para no. 4 are wrong and denied. The
advocate of the complainant has incorrectly stated that due to
inadvertence heading of the affidavit has been wrongly typed. A
bare reading of document namely “the Complainant containing
page 1 to 24 filed 16/11/2009” which is now sought to be
rectified by way of the
instant application will show that the
said document was never intended to be affidavit of the
complainant as the entire formatting of the said document is of a
fresh complaint which is further evident from the statements in
the said document as well as from the prayer clause. Further,
affidavit supporting the said document clearly mentions the
document a an application.
That surprisingly the advocate for the complainant even though
request for amending the documents at page 1 to 24 filed on
16/11/2009 by the application in a most inappropriate and
misconceived manner sought rectify only the heading of the said
document. It is submitted that even the said document is renamed
as “affidavit of Dr. Kunal Saha” the same cannot be permitted to
be filed on record for the reason that the complainant cannot be
permitted to file an affidavit introducing from evidence, new plea,
fresh cause of action and new prayers.
16.5 That the contents of para 5 are wrong and denied. It is submitted
that there is no error in filing the fresh complaint which can be
sought to be rectified. As a matter of fact the complainant has
ventured to file a fresh complaint with new plea, fresh documents,
fresh cause of action, new evidence and fresh prayers. It is
submitted that the same cannot be allowed in the instant case for
the reason stated in preliminary submissions.
16.6 In view of the aforesaid paragraph 6 of the application is
misconceived wrong and denied.16.7 That the prayer clause of
the application under reply is absolutely misconceived, wrong,
misleading and vehemently denied. It is submitted that the instant
application which contains incorrect and misleading statements
and deliberate suppression of facts needs to be out-rightly
dismissed and the instant complaint may be decided on the basis
of the documents on record of the case on the basis of which the
Hon’ble Supreme Court remanded the matter to this Hon’ble
Commission to decide ht quantum of compensation to be paid to
the complainant.
OPOSITE PATY NO. 1
OPPOSITE PARTY NO.2
Filed by:
SANJOY KUMAR GHOSH
Advocate for the Opposite
Party no. 1 and 2
BEFORE THE HON'BLE NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION (NCDRC)
IN
O.P. No. 240 OF 1999
Dr.Kunal Saha
…………Complainant/Petitioner
Versus
Dr. Sukumar Mukherjee & Ors
……Opp. Parties/Respondents
REPLY ON BEHALF OF THE COMPLAINANT/PETITIONER IN
RESPONSE TO I.A. NO.
FILED BY
RESPONDENT NO. 3
Preliminary Submission:
The Respondent No. 3 has filed an overtly baseless, frivolous and
misguided application to implead the Breach Candy Hospital.
This
application is not maintainable because the Hon’ble Supreme Court has
already passed a final judgment in which they have categorically held that
the Respondent No. 3 along with the Respondent Nos. 1, 2 and 4 (plus late
Dr. Abani Roychowdhury) were responsible for the wrongful death of
complainant’s wife, Anuradha Saha, since deceased.
It must be
emphasized that the Hon’ble Apex Court has remanded this case back to
this Hon’ble Commission with categorical observation, “We remit the
case back to the Commission only for the purpose of determination of
quantum of compensation” (emphasis added). The Hon’ble Supreme
Court has already made a final decision about the parties liable for
Anuradha Saha’s wrongful death. The Breach Candy Hospital was not
even a party before the Hon’ble Supreme Court although the Apex Court
has adequately dealt with the issue of Breach Candy Hospital that was also
raised by the Respondents before the Supreme Court (see the next
paragraph). Any attempt to implead another party (including the Breach
Candy Hospital) at this stage is nothing but a gross abuse of the process of
law and a candid violation of the Hon’ble Supreme Court’s directives.
That it is pertinent to mention that the Respondents (including the
Respondent No. 3) raised a similar claim before the Hon’ble Supreme
Court to implead other parties including the Breach Candy Hospital. The
Hon’ble Apex Court considered all the pleadings and emphatically
rejected the claim that the Breach Candy Hospital or any other doctors
should be impleaded in this case. In fact, in the final judgment passed by
the Hon’ble Supreme Court, these aspects have been elaborately discussed
under a distinct heading, “C.6: Non-joinder of Necessary Parties” in
which the Hon’ble Apex Court has specifically observed, as below:
“An argument has also been advanced that Anuradha was
also treated by as many as 16 doctors and thus, there is no
reason as to why only the respondents should have been
proceeded against. Proceeding should be initiated both
under the criminal law as also the tort law only against
those who are specifically found to be guilty of criminal
misconduct or medical negligence or deficiency of service
and not against all…………….Respondents have also not
pointed out as to how treatment by any other doctor has
contributed in any manner to the death of Anuradha………
Submissions have also been made at the bar that Kunal
(Petitioner) issued notices to a large number of persons but
withdrew the case against most of them. It was placed
before us that in the first notice there were as many as 26
addresses and in the complaint filed before the National
Commission, there were 19 addresses.
Withdrawal of
cases against some of them, in our opinion, is not of much
significance…………………..Dr.
Kunal
says
that
the
proceeding against Breach Candy Hospital and doctors
treating Anuradha had been withdrawn as the principal
grievance against the hospital was that they did not have
any burn ward although he was already informed
thereabout……………Absence of burn ward by itself, thus,
might not be a contributory factor although existence
thereof was highly desirable keeping in view the treatment
protocol………………In any event, keeping in view of the
said decision, we are of the firm opinion that notices to a
large number of persons and withdrawal of cases against
some of them by itself cannot be considered to be a relevant
factor for dismissal of these appeals.” (emphasis added)
In view of the categorical observation made by the Hon’ble Apex Court, it
is a sheer outrage that the Respondent No. 3 has made a deliberate attempt
to overcome the Apex Court’s findings and filed this I.A. to mislead and
misguide this Hon’ble Commission by seeking to implead the Breach
Candy Hospital at this stage. This blatantly frivolous application would
undoubtedly cause waste of the valuable time of this Hon’ble Commission
and it must be rejected with exemplary cost against the Respondent No. 3.
In the instant I.A., the Respondent No. 3 has tried to assert that only
because late Anuradha Saha was treated for some period of time at the
Breach Candy Hospital and because the Petitioner/Complainant had
initially filed a complaint against 26 parties (including the Breach Candy
Hospital) some of which were withdrawn at a later point, the Breach
Candy Hospital must be impleaded now to share the burden of the
quantum of compensation for the wrongful death of complainant’s wife.
As discussed in the last paragraph, the Hon’ble Supreme Court has
examined these relevant issues and unequivocally declared that the
Respondent Nos. 1-4 (and late Dr. Abani Roychowdhury) were solely
responsible for the wrongful death of complainant’s wife. The Hon’ble
Apex Court has remitted this matter back to this Hon’ble Commission
solely and only for the purpose to determine the quantum of compensation
to be paid by these Respondents. In fact, in view of the recent judgment
passed by the Hon’ble Supreme Court in Nizam Institute of Medical
Sciences v. Prashant S. Dhananka & Ors. [2009 (7) SCALE 407], which
was also referred in the final judgment by the Apex Court in the instant
case, the Respondent No. 3, i.e. AMRI Hospital is liable to pay bulk share
of the compensation for the wrongful death of complainant’s wife.
PARA-WISE REPLY:
A. The Petitioner/Complainant agrees with the content of paragraph 1 that
this case has been remitted back by the Hon’ble Supreme Court only for
the purpose of determination of quantum of compensation.
B. The content of paragraph 2 is a matter of record. However, it is denied
that late Anuradha Saha, wife of the Petitioner/Complainant, was treated
at the AMRI Hospital (Respondent No. 3) for only 6 days or that she was
treated at the Breach Candy Hospital for 12 days, as alleged.
C.
The contents of paragraphs 3-5 are wrong and denied.
It is
specifically denied that the Petitioner/Complainant was selective in
prosecuting the Respondents. As explained above, the Hon’ble Supreme
Court has also observed that the Petitioner/Complainant had rightly
withdrew cases against some parties against whom notices were issued at
some earlier stage in this case.
D. The content of paragraph 6 is wrong and denied. The baseless
assertion made by the Respondent No. 3 that the Petitioner/Complainant
ever treated his wife is absolutely untrue and cooked up by the
Respondents with a sinister motive. Even the Hon’ble Supreme Court
has outright rejected these bogus claims made by the Respondents that the
Petitioner/Complainant actually “interfered" with the treatment of his
wife.
E. The contents of paragraphs 7 and 8 are wrong and denied. It is
specifically denied that the Petitioner/Complainant ever selectively picked
the Respondents. As discussed above, the Hon’ble Supreme Court has
categorically opined that only the Respondents in this instant case, i.e.
Respondent Nos. 1-4 (plus Dr. Abani Roychowdhury) were responsible
for the wrongful death of Petitioner/Complainant’s wife and the Breach
Candy Hospital had no role in it.
That in view of the submissions made hereinabove, it is humbly submitted
that the frivolous application filed by the Respondent No. 3 may be
dismissed with exemplary cost imposed against the AMRI Hospital.
DEPONENT