The instant petition is a Miscellaneous Application no. MA/76/2022 dated 26.05.2022 filed by the petitioner in respect of the original case no. CC/16/2022 admitted before this Commission. The OPs are renowned hospital running under a trust, OP 2 being the Director, OP 3 & OP 4 both being office bearers, OP 5 being Advisor, OP 6 & OP 7 both being trustee board members and the OP No. 8, 9, 10, 11 & OP 12 being  medical consultants i.e. Doctors. All the OPs from OP 2 to OP 12 have filed this application in the MA petition for expunging their names on the ground that they are not involved in the day to day management and affairs of the hospital of OP no. 1 and hence they are not required to be impleaded as parties in the instant proceedings.

In a glance to the complaint petition read with exhibits, it is apparent that all the doctors made as OP were the treating doctors. They would often have the relevant information in the particular case. While it may be necessary to have the doctor testify, the requirement of testimony by the treating doctor who examined and treated the complainant, revolves around their unique position. The treating doctors examine the complainant clinically, because he was their patient for the purpose of diagnosis and treatment at relevant point of time. This means that treating physicians are required to provide their evidence, based on what they personally examined about the patient and about their observations on real time basis. The rules of evidences recognizes that the treating doctors may adduce evidences as a fact witness. As a result the evidences from the treating doctors cum OPs are required at any point of time during adjudication. This is inspite of the fact that the hospital might have a vicarious liability as well, towards their patients.

In a recent judgment in the matter of Manasi Mishra v/s Aayush Hospital and Maternity Home and Ors. vide transfer application no. 1 of 2021 decided on 09.02.2022 by the Hon’ble Dr. S.M. Kanitkar and Hon’ble Mr. Binoy Kumar of NCDRC, New Delhi has been relied upon, relevant portion of which runs as below:-

‘It is true that the Doctors are busy and conscious about their duties towards the patient but are not exempted from the legal proceedings and duty bound to attend the court proceedings either in person or through their Ld. Counsel. The statement of objects and reasons of act 2019 speaks of speedy and simple redressal to consumer disputes. This is the case of alleged medical negligence which needs a holistic approach after giving fair opportunities to the parties on both sides, instead of taking a technical approach. Hence in view of the above, as per the provisions contained under Section 22 of Consumer Protection Act, 2019 the transfer application is allowed.’

In our view the afore mentioned ruling is very much applicable in the case in hand.

Therefore having regard to the above mentioned judgment passed by the Hon’ble NCDRC, we are of the opinion that the said MA petition for expunging the names of OP 2 to OP 12 en masse, cannot be accepted in toto.  The OP hospital being juristic person needs to be represented by living person i.e. OP2 and Director of the hospital, OP 4 being dealt with hospital billing, records and documents as exhibited and the OP no. 8, 9, 10, 11 & 12 being the treating doctors cum consultants are required during adjudication process.

The balance OPs i.e. OP3 being other office bearer, OP5 being advisor and both the OP6 & OP7 being the trustee board members may be allowed for expunging their names from the instant suit, as their involvement in day to day operations in this matter was not substantiated sufficiently.

Hence the MA petition succeeds in part.

It is ordered that the petition submitted as Misc. Application vide no. MA/76/2022 is hereby partly allowed. The prayer of expunction of the OP 3, 5, 6 and 7 as such calls for action. Their names be expunged from the cause title of the complaint.

The Ld. Advocate appearing for the complainant is directed to file amended complaint deleting the names of OP 3, 5, 6 and 7 by 22.08.2022.

The MA petition of the rest OPs is hereby rejected on contest.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MR. Partha Kumar Basu]
MEMBER