Crying shame: The parents of Rajnish Patel, a young cricketer who died allegedly due to gross medical negligence at a Calcutta hospital in 2003, wait outside a civil court (file picture)

It shouldn’t have taken more than 90 days for 73-year-old Sheelu Merchant, who was blinded in one eye after a cataract operation by a city doctor went awry, to get justice. But the Mumbai-based Merchant had to wait for nine years to get compensation. Along the way came endless waits outside consumer courts in Mumbai. In the end, all she got as compensation was a modest Rs 1.25 lakh.

Ironically, the matter was pursued not in a civil court, but in a consumer forum, specially designed to dispense justice quickly. And if it hadn’t been for the Lok Adalat, where Merchant’s case was ultimately settled in October this year, the case could have dragged on for much longer. Says Justice Vagyani, the judge at the State Consumer Dispute Redressal Commission (SCDRC) in Mumbai, who gave Merchant the option of approaching the Lok Adalat on the final day of the hearing, “It ultimately depends on the evidence. Had it fallen short, she could have got an adverse order.”

Merchant, however, is not alone. Several others have found that cases filed against doctors in the country’s consumer courts stretch on interminably. Laxman Kotgiri, who works with the railways in Mumbai, lost his wife, Elda, 26, to post-surgical trauma a day after she had delivered a baby at a city railway hospital.

For the last 15 years, Kotgiri has been running from the SCDRC in Mumbai to the National Consumer Dispute Redressal Commission (NCDRC) in Delhi in search of justice. But even today, he awaits a final verdict. And had it not been for Mumbai-based medico-legal activist Dr Manohar Kamath, who fought his case for free, the bereaved husband’s story would have ended with the death of his wife. The case, which came up for hearing at the NCDRC last week, has been put on the backburner once again until March next year.

These examples reflect a fundamental problem that besets consumer courts ? they are bursting at their seams. Maharashtra’s consumer courts have 14,000 pending cases. Only 22 of the 146 such cases admitted at the SCDRC between April 2004 and September 2005 have been disposed of. And of the 115 cases that came as appeals from the district consumer forum, just 14 have been dealt with.

But, as retired Mumbai High Court judge S.M. Daud points out, the problem is not just the numbers. Though consumer courts have been designed to deal with medico-legal cases, they are, in Justice Daud’s words, “hardly equipped to understand medical problems. In recent times, the Supreme Court itself has realised the limitations of the consumer forum in dealing with medico-legal cases. In one case, it said that complex matters in this area should be referred to the civil court.”

But Justice Vagyani of the SCDRC feels that a consumer court operates on the principles of common sense and minimal technicalities and all that matters is the prosecution proving that an offence has taken place, beyond all reasonable doubt. “Here, cases should be decided on preponderance. The Evidence Act does not apply to the consumer court,” he says.

But the disadvantage of what appears to be a simplistic approach, especially in dealing with cases of life and death, according to Justice Daud, lies in the summarised nature of the procedure prescribed. Therefore, “no effective cross-examination can take place”, he says.

Besides, lawyers are also known to put up a poor show, sometimes owing to a lack of preparation, and sometimes because many of them don’t understand the technical aspects of cases involving alleged medical negligence or malpractice. Advocate Uday Wavikar, who represented Merchant, feels it’s the ‘time’ factor that really lowers a lawyer’s efficiency.

What has also become increasingly questionable, as Justice Daud points out, is the choice of judges in tribunals and courts. “They are taken either on the basis of the number of years of practice or on the basis of how their superior judges view them,” he says. The two lay assessors or members who assist the president of the consumer court, Justice Daud adds, are also not up to the mark. According to Kamath, they “never express dissent”.

One way of making consumer courts more effective would be to have doctors as assessors. Alternatively, the assessors could be medical or engineering professionals with law degrees. Justice H. Suresh, a retired judge of the Mumbai High Court, suggests that a five-member panel representing different professions, including doctors, be set up to aid the consumer court judges.

Needless to say, more consumer courts are also required. “In Mumbai, there could be at least one per ward,” says Justice H. Suresh. Justice Vagyani says additional benches are required too, along the lines of benches at a high court, to distribute the workload and save litigants the trouble of coming to the state commission in Mumbai.

On their part, consumers need to be sure that they have a strong case. Says Kamath, “You must be 100 per cent sure of the validity of the case before filing it, as the benefit of doubt always goes to the doctor.”