In the three-tier consumer disputes redressal system, the members are not, and obviously cannot be Jacks of all trades. Sections 10(1)(b)(iii), 16(1)(b)(iii) and 20(1)(b)(iii) of the Consumer Protection Act lays down qualifications for these members at the district, state and national level. A relevant parameter is "adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration." In many cases, expertise in certain areas may be required to decide disputes involving medical negligence or manufacturing defects in products or food adulteration.
This is where expert opinion is crucial. I have come across a case where a consumer forum dismissed a complaint that cited suffocation inside an aircraft as passengers were made to board during re-fuelling and the air-conditioning was switched off. The learned judge ruled that there was no question of suffocation as even if the air-conditioning was in the switch-off mode, the fans would have been running!
There have been conflicting rulings of the Consumer fora and Commissions on the applicability of the Indian Evidence Act on the admissibility of expert opinions. Under Section 45 of the Evidence Act, "when the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts."
The Supreme Court in State of Himachal Vs Jai Lal held that "in order to bring the evidence of a witness as that of an expert, it has to be shown that he has made a special study of the subject, or acquired a special experience therein, or in other words, that he is skilled and has adequate knowledge of the subject." The Court added that "an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case."
Fair enough. But is an expert opinion mandatory in all cases of medical negligence or defective products? What if, for instance, an automobile has had a history of breakdowns with the same complaint and after yet another 'repair' is lying in the authorised workshop of the manufacturer and the owner is reluctant to take it back with legitimate safety concerns? An expert opinion at this stage may not reveal the real problem? Neither can the owner be expected to rustle up an expert to inspect the vehicle in the middle of the road! In such contexts, the principle of 'res ipsa loquitur', which means 'the occurrence speaks for itself'. The service history will be relevant in these cases with possible academic research findings or articles.
In an encouraging pro-consumer decision on medical negligence, the Apex Court in V.Kishan Rao Vs Nikhil Super Speciality Hospital clarified that "it is clear from the statement of objects and reasons of the Act that it is to provide a forum for speedy and simple redressal of consumer disputes. Such avowed legislative purpose cannot be either defeated or diluted by superimposing a requirement of having expert evidence in all cases of medical negligence regardless of factual requirement of the case." The Supreme Court laid down the guideline that "before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert."
How many ordinary consumers will be able to obtain an expert opinion to prove their case? How many 'experts' will be willing to testify against, either another doctor or hospital, or against a corporate giant, especially if they are from the same industry? Even if they are principled folks who are keen to stand up for a cause, wouldn't they have concerns about what else it would entail, beyond preparing the opinion? What is the yardstick that a forum or commission will employ to determine what constitutes a credible expert opinion, if there are conflicting opinions produced by the complainant and the opposite parties?
There was clarity from the Supreme Court in J.J. Merchant (Dr) Vs Shrinath Chaturvedi. "It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly." This procedure involves expert opinion taken on affidavits under Section 13(4)(iii) of the Consumer Protection Act.
Experts need not worry. If at all cross-examination is sought by the other side and the Commission or forum gives its nod, the Supreme Court suggested written interrogatories or video or telephonic conferencing or cross-examination by the Commissioner appointed by the forum at the working place of such experts at a fixed time. Experts help in deciding disputes and must not be harassed. On that note, why can't consumer fora have an accredited panel of experts from different fields, quite like arbitrators? Some fora have them but they are not publicised enough. And let's go by merit of private professionals too and not insist on government tags.
Let there be lightExpert opinions for medical negligence or defective products.
Expert opinion not mandatory in all cases.
Affidavits accepted as evidence.
Written interrogatories for cross-examination
(The writer is an advocate at the Madras high court, columnist & author)
