State Consumer Disputes Redressal Commission
Captain Sekhar Saha vs Bajaj Allianz Life Insurance Co. Ltd. on 6 January, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 CASE NO. MA-268/2010 in CC/13/2010 DATE OF FILING: 06.10.2010 DATE OF FINAL ORDER:
06.01.2011 COMPLAINANT Captain Sekhar Saha S/o.
Late H.N. Saha Residing at Flat No.10D/2, Megha Mallar (10th floor) 18/3, Gariahat Road Kolkata 700 019 OPPOSITE PARTIES Bajaj Allianz Life Insurance Company Ltd.
Service through the General Manager G.E. Plaza, Airport Road Yerawada, Pune 411 106
2) The General Manager Bajaj Allianz Life Insurance Company Ltd.
G.E. Plaza, Airport Road, Yerawada Pune 411 106 3) The Zonal Manager Eastern Region Bajaj Allianz Life Insurance Company Ltd. Macmet House, 4th floor 10B, O.C. Ganguly Sarani Kolkata 700 020 4) The Zonal Customer Care Manager East Bajaj Allianz Life Insurance Company Ltd. Macmet House, 4th floor 10B, O.C. Ganguly Sarani Kolkata 700 020 5) The Branch Manager Bajaj Allianz Life Insurance Company Ltd. Tollygunj Branch 2 71, Jodhpur Park, Kolkata 6) Avijit Talukdar S/o. Late Ajit Talukdar Erstwhile Additional Chief Branch Manager Bajaj Allianz Life Insurance Company Ltd. Tollygunj Branch 2 71, Jodhpur Park, Kolkata Resident of 166/C/3, Lake Gardens Kolkata 700 045 BEFORE : HONBLE
JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER MEMBER :
MR. S. COARI FOR THE COMPLAINANT :
Mr. S. Sengupta, Advocate FOR THE O.Ps. : Mr. S. Roychowdhury, Advocate (Nos.1 to 5) :
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT By this Miscellaneous Application being MA/268/2010 the OPs 1 to 5 have prayed for a leave in the present proceeding to cross-examine the complainant in person orally in open Court on his evidence in chief that has been tendered by way of affidavit dated 22.7.2010. The complaint case has been filed alleging deficiency in service by the said OPs in relation to the BA New Unit Gain Easy Pension Plus SP policy vide policy no.0115385207 which was purchased by the complainant upon an initial premium investment of Rs.99,500/- on 10.12.2008. It has been alleged in the said complaint that the complainant was induced by the OP6 to purchase the aforesaid Life Insurance Policy from the OP1.
After such purchase he was further induced by him to invest further in the said policy under Top Ups Scheme for getting further benefits under the said policy. Unfortunately, the said OP6 ultimately failed to recognize any of the said top ups measures which had been purchased by the complainant. Hence the Complaint. The OPs 1 to 5 have filed a written objection to the aforesaid complaint case. It has been alleged therein by the said OPs that the complaint is not maintainable in law as well as in facts as the complainant has already approached the investigating agencies/authorities by filing an F.I.R against the said OP6. It has also been alleged therein that the OP6 in collusion with the other persons have purported to defraud the OP1 and some of its customers. In the said written objection some complicity and connivance between the complainant and the OP6 have also been alleged. After filing of the written versions by the OPs the complainant has filed affidavit evidence in support of his complaint case. In these state of affairs the above application has been filed by the OPs 1 to 5 by seeking permission to cross-examine the complainant in the open Court on the ground that there are criminal proceedings pending in respect of the same cause of action and, therefore, the complaint case raises complicated issues of fact and law and that apart the documentary evidences, the personal knowledge and demeanor of the witness are very vital to unearth the fraud that has taken place and the conspiracy if any made between the complainant and the OP6.
This application thus raises an important question for answer as to whether such cross-examination of the complainant is at all necessary in a summary proceeding of this nature. In otherwords whether such cross-examination on dock would achieve any fruitful purpose or on the other hand would frustrate the very object of the Act of doing justice to the consumer without putting them into the shackles of long drawn and well fought out litigation.
Section 18 of the Consumer Protection Act (hereinafter referred as the said Act for convenience) provides that the provisions of Sections 12,13 & 14 and the Rules made thereunder for the disposal of complainants by the District Forum shall, with such modifications as may be necessary, be applicable to the disposal of disputes by the State Commission.
Section 13 (3A) and Section 13(4) read as under:
13(3A). Every complaint shall be heard as expeditiously as possible and endeavour shall be made to decide the complaint within a period of three months from the date of receipt of notice by opposite party where the complaint does not require analysis or testing of commodities and within five months if it requires analysis or testing of commodities:
Provided that no adjournment shall be ordinarily granted by the District Forum unless sufficient cause is shown and the reasons for grant of adjournment have been recorded in writing by the Forum:
Provided further that the District Forum shall make such orders as to the costs occasioned by the adjournment as may be provided in the regulations made under this Act:
Provided also that in the event of a complaint being disposed of after the period so specified, the District Forum shall record in writing, the reasons for the same at the time of disposing of the said complaint:
4.
For the purposes of this section, the District Forum shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-
(i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(ii) the discovery and production of any document or other material object producible as evidence;
(iii) the reception of evidence on affidavits;
(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
(v) issuing of any commission for the examination of any witness; and
(vi) any other matter which may be prescribed.
Upon plain reading of Section 13(4) of the said Act it seems that the Commission or the Forum has been empowered to exercise the powers vested in Civil Court only for the purpose for discovery and production of any document, the reception of evidence on affidavit and for issuing of any Commission qua-examination of any witness on oath. The Honble Supreme Court in dealing with the question whether recording of evidence of experts including the doctors relied upon by the complainant in a case based upon medical negligence of the doctors in giving treatment to their patients, has held in paragraph 19 of the decision in the case reported in III(2002) CPJ 8 (SC) (Dr. J.J. Merchant and others-Vs-Shrinath Chaturvedi) as under:
17. In view of the aforesaid provisions, the Commission can certainly refer to Order VII Rule 14 which provides that where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in the Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint. It appears that this mandatory requirement is not followed and thereafter, there is complaint of delay in disposal. Similarly, in case of written statement under Order VIII Rule 1-A, defendant is required to produce the documents relied upon by him when written submission is presented. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.
18. Further, in the present case, the complainants case is based upon the negligence of the Doctors in giving treatment to the deceased.
Whether there was negligence or not on the part of the concerned Doctors would depend upon facts alleged to and in such a case there is no question of complicated question of law involved.
However, it has been pointed out by the learned Senior Counsel that recording of evidence of experts including doctors relied upon by the complainant would consume much time and therefore also complainant should approach the Civil Court. As against this, learned Counsel for the complainant submitted that under the Act, Commission is required to follow summary procedure. It may or may not examine the doctors or experts. It may only rely upon the statements given by such doctors or experts.
19. It is true that it is the discretion of the Commission to examine the experts if required in 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. Only caution required is to follow the said procedure strictly.
Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii). It also empowers such Forums to issue any Commission for examination of any witness (under Section 13(4)(v)]. It is also to be stated that Rule 4 in Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the Court or the Commissioner appointed by it. As stated above the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses.
The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still party intends to cross-examine such doctors or experts, there can be video conference or asking questions by arranging telephone conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.
The National Commission in the case of Smt. Indrani Bhattacharjee-Vs-CMO, Prakka Super Thermal Power (Original Petition 233 of 1996) has observed as under:
Henceforth in all matters wherever there is a prayer for cross-examination of the witnesses by the learned advocates for the parties, learned advocates to produce the interrogatories on record and those interrogatories should be replied by the concerned parties on affidavit. Thereafter, the Commission would decide whether any further cross-examination on any point is necessary or not.
The State Commissions as well as District Forums instead of recording the cross-examination may follow the practice of asking the parties to give interrogatories and thereafter reply of interrogatories on affidavits should be taken on record first instead of permitting the lengthy cross-examination.
Registry is directed to circulate this order to all the State Commissions with the request to circulate the same to all the District Forums.
These two decisions however have nowhere given any indication whatsoever for providing scope for cross-examination of the witnesses who have filed affidavit evidence in the consumer cases by the otherside either before the District Forum or the State Commission. Rather it has indicated that in extreme case where stakes are very high such cross-examination can be held by holding video conference or by asking questions by arranging telephonic conference. True such observations have been made in respect of the experts and the doctors who gave affidavit evidence in support of the complaint. They are the most important witnesses and are examined as being the independent and impartial witnesses in support of the complaint.
Their cross-examination, which is of utmost important to the otherside, has not been allowed to be held on dock by the Honble Apex Court. On the contrary it has clearly discouraged the practice of cross-examination of the witness on the dock for the purpose of disposal of cases by the District Forum or the State Commission or the National Commission. It has been avoided for the purpose of speedy trial of these type of cases in summary manner. Otherwise the very purpose of protecting the interest of the consumers would be lost forever. Once cross-examination on dock is allowed the proceeding would be as lengthy as it could be.
Relief of the consumers against might and wealth of the otherside would be illusory.
In this regard reference may be made to the provisions of Consumer Protection Regulations, 2005 framed by the National Consumer Disputes Redressal Commission in exercise of its power conferred under Section 30(A) of the Consumer Protection Act, 1986. The said Regulations if read as a whole give an impression that the proceedings under the said Consumer Act is in the nature of the summary proceeding and the District Forum and/or the State Commission and/or National Commission as the case may be in trying complaint cases exercise summary jurisdiction. In large number of cases where the facts are quite complex and would require a great deal of evidence for resolving the dispute the National Commission has refused to try the cases in summary jurisdiction. Reference may be made to the case of Omega AG Seeds Punjab Ltd.-Vs-Indian Overseas Bank and Others reported in The National Commission has observed therein that there were documents running over 100 pages. It has accordingly been held that it would not be possible for the National Commission decide this matter in its summary jurisdiction as it requires a great deal of evidence both oral and documentary for coming to a conclusion. All the aforesaid decisions go to establish that the proceedings either before the District Forum or State Commission or National Commission are of summary nature and should be disposed of in exercise of summary jurisdiction without adopting the elaborate procedure of disposal of cases by the traditional courts as per the strict procedure prescribed by code of civil procedure.
Further more the Supreme Court in the celebrated case of medical negligence between Dr. Kunal Saha-Vs-Dr. Sukumar Mukherjee and Others has observed that the affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds its proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain question in writing and those questions also could be replied by such experts including doctors on affidavit.
The National Commission in an original petition 233 of 1996 (Smt. Indrani Bhattacharya-Vs-CMO, Prakka Super Thermal Power and Others) pending before it has categorically observed as under:
Henceforth in all matters wherever there is a prayer for cross-examination of the witnesses by the learned advocates for the parties, learned advocates to produce the interrogatories on record and those interrogatories should be replied by the concerned parties on affidavit. Thereafter, the Commission would decide whether any further cross-examination on any point is necessary or not.
The State Commissions as well as District Forums instead of recording the cross-examination may follow the practice of asking the parties to give interrogatories and thereafter reply of interrogatories on affidavits should be taken on record first instead of permitting the lengthy cross-examination.
Registry is directed to circulate this order to all the State Commissions with the request to circulate the same to all the District Forums.
In view of the aforesaid discussion and for the reasons aforesaid this Commission holds that such cross-examination of the complainant by the OPs 1 to 5 should only be by way of putting questionnaire in writing to the complainant which would be replied by the complainant on affidavits. The above OPs are accordingly directed to put in questionnaires to the complainant by 23.02.2011 upon payment of cost of Rs.500/- in relation to the affidavit evidence filed by the complainant for his reply thereto.
This Miscellaneous Application being No.268 of 2010 is thus disposed of.
(S. Majumder) (S. Coari) (Justice P.K. Samanta) MEMBER(L) MEMBER PRESIDENT