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:

Dr. Kunal Saha …Petitioner

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- A5

4. Synopsis and List of Dates B –

5. Impugned Judgment & Final Order dated7.9.2010 in MA. No.594/2010 in OP. No. 240/1999 passed by the Hon’ble National Consumer Redressal Commission (NCDRC), New Delhi

6. Special Leave Petition with Affidavit

7. Annexure P/1 : A copy of the judgment and final Order of C.A. No. 1727/2007 passed by theHon’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 leave petition with liberty

to avail opportunity of examining foreign experts

through video-conferencing in terms of the

order passed by 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 : to )

24.08.2009: 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” from USA on

economy/law/psychology in support of the

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 : to )

17.05. 2010 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. (Pages

: to )

21.5.2010 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 : to )

28.07.2010 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 : to )

11.08.2010 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 : to )

19.08.2010 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 inOP. No. 240/1999 passed by theHon’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. Resp.No.1 Resp. No.1

2. 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

Resp. No.3

4. Dr. Balram Prasad,

Advanced Medicare and

Research Institute (AMRI),

P-4 & 5, C.I.T Scheme-LXXII

Gariahat Road,

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 petition (filed against M.A. 200/2010) “with liberty to

avail 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 -2010Filed 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 advocate for the complainant under no

circumstances 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 GHOSHAdvocate for the Opposite

Party no. 1 and 2

Annexure P/6

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