State Consumer Disputes Redressal Commission
Shahnawaz vs Dr. Ajay Kumar And Another on 30 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
REVISION PETITION NO. 05 / 2010
Shahnawaz S/o Mohammad Nazim
R/o Kashipur, Roorkee
Pargana Roorkee
Tehsil Roorkee, District Haridwar
......Revisionist / Complainant
Versus
1. Dr. Ajay Kumar
Roorkee X-Ray, Ultrasound & C.T. Scan Centre
Opposite B.S.M. Degree College, Railway Road
Roorkee, Tehsil Roorkee
District Haridwar
2. Dr. Karan Singh
Dev Nursing Home
Near B.S.M. College
Dehradun Road, Roorkee
Tehsil Roorkee, District Haridwar
......Respondents / Opposite Parties
Sh. Prabhakar Gupta, Learned Counsel for the Revisionist
Sh. Gopal Narsan, Learned Counsel for Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Dated: 30/07/2012
ORDER
(Per: Justice B.C. Kandpal, President):
This revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 has been preferred against the order dated 28.06.2010 passed by the District Forum, Haridwar in consumer complaint No. 149 of 2007, whereby the District Forum has rejected the applications dated 28.06.2010 moved by the complainant -
revisionist for amendment in the consumer complaint and for summoning the opposite party No. 1 - respondent No. 1 Dr. Ajay Kumar for cross-examination.
22. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that in the month of August, 2006, the complainant suffered pain in his stomach and on 09.08.2006, the complainant was shown to Dr. B.S. Saini, who advised him for ultrasound. The complainant got his ultrasound done from the opposite party No. 1, who told that the complainant is having the problem of appendix and advised to consult a surgeon. On 09.08.2006, the complainant visited the nursing home of opposite party No. 2, who after examining the report, told that the complainant has to undergo an operation and told the fees of operation as Rs. 2,000/-. But later on, the opposite party No. 2 told that the fees of operation would be Rs. 6,000/- excluding the cost of medicines. It was told that the complainant was not operated upon for appendix, but his diagnosis was haemoperitoneum with splenic injury. It was alleged that after the operation, the complainant has not been able to perform his normal duties. Alleging medical negligence on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The opposite parties filed their separate written statement before the District Forum, denying the allegations made in the consumer complaint and pleaded that no medical negligence has been committed by them and that the complainant is not entitled to any relief.
4. On 28.06.2010, the complainant moved two applications before the District Forum, one for amending the consumer complaint and another for summoning the opposite party No. 1 for cross-examination. The District Forum vide impugned order dated 28.06.2010, rejected the said applications. Aggrieved by the said order, the revisionist has filed this revision petition.
35. We have heard the learned counsel for the parties and have also perused the record.
6. The revisionist - complainant had moved an application before the District Forum on 19.05.2010 (Paper No. 21), stating therein that he wants to withdraw his consumer complaint against the opposite party No. 1 - Dr. Ajay Kumar. The said application was allowed by the District Forum vide order dated 19.05.2010, as has been endorsed on the said application, which reads, "U;k;fgr esa çkFkZuk i= Lohd`r fd;k tkrk gSA". In view of the said application dated 19.05.2010 moved by the revisionist - complainant being allowed by the District Forum vide order dated 19.05.2010, it was necessary to amend the consumer complaint and the application to that effect moved by the revisionist - complainant on 28.06.2010, so as to delete the name of the opposite party No. 1 from the consumer complaint and to substitute the words "opposite party No. 1" in the consumer complaint by the words "Dr. Ajay Kumar", should not have been rejected by the District Forum on the ground that the amendment is vague. Thus, we are of the view that the amendment application moved by the revisionist - complainant ought to have been allowed and the District Forum fell in error by rejecting the same and the order to that effect passed by the District Forum, need to be set aside and the amendment application moved by the revisionist - complainant need to be allowed.
7. So far as the application moved by the revisionist - complainant for summoning Dr. Ajay Kumar for cross-examination is concerned, we are of the view that the District Forum has rightly rejected the said application. If the complainant wants to put any questions from Dr. Ajay Kumar, he can very well serve the interrogatories upon him and ask him to answer the said questions, but 4 in the peculiar facts and circumstances of the case, the cross-examination of Dr. Ajay Kumar is not at all necessary.
8. In the case of Institute of Laparoscopic Surgery, Jeevan Satya and another Vs. Bimal Kumar Ghosh; I (2008) CPJ 470 (NC), the permission for cross-examination of witness was declined and the application was dismissed by the State Commission. The interrogatories for the purpose of cross-examination were served by the opposite party and the same were replied by witness. It was held by the Hon'ble National Commission that no interference is required in the impugned order and the revision petition was dismissed. In the case of Mani Square Limited and others Vs. Vinita Agrawal and others; I (2010) CPJ 150 (NC), it was held by the Hon'ble National Commission that the purpose of eliciting required information from witness shall be equally served even by filing interrogatories, to be answered by the witness and the revision petition was dismissed.
9. For the reasons aforesaid, the revision petition is disposed of with the observation that the amendment application dated 28.06.2010 moved by the revisionist - complainant is hereby allowed and the revisionist - complainant is directed to make necessary amendment in the consumer complaint, but so far as the prayer of the revisionist - complainant for summoning Dr. Ajay Kumar for cross-examination is concerned, the same has rightly been turned down by the District Forum and the order regarding rejection of the said application passed by the District Forum stands confirmed. However, if the revisionist - complainant wants to put any questions from Dr. Ajay Kumar, he can serve the interrogatories upon him, so as to answer the interrogatories. No order as to costs.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K