State Consumer Disputes Redressal Commission
Ashok Rampal vs Fortis Escorts Hospital on 13 April, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Revision Petition No.14 of 2015
Date of institution : 09.04.2015
Date of decision : 13.04.2015
ASHOK RAMPAL SON OF SHRI JANAK RAJ RAMPAL, R/O
H.NO.793, NEW BANK WALI GALI, RAYYA, AMRITSAR.
.......PETITIONER-COMPLAINANT
VERSUS
1.FORTIS ESCORTS HOSPITAL, MAJITHA VERKA BYE PASS ROAD, AMRITSAR; THROUGH ITS CHAIRMAN/MANAGING DIRECTOR/PRINCIPAL OFFICER; SERVICE THROUGH ITS MEDICAL SUPERINTENDENT.
2. DR. MANUJ WADHWA C/O FORTIS ESCORTS HOSPITAL, MAJITHA VERKA BYE PASS, AMRITSAR; PRESENTLY RESIDENT OF H.NO.2367, SECTOR 23-C, CHANDIGARH.
3. DR. MOHIT ARORA C/O FORTIS ESCORTS HOSPITAL, MAJITHA VERKA BYE PASS, AMRITSAR.
........RESPONDENTS/OPPOSITE PARTIES Revision Petition against the order dated 29.1.2015 of the District Consumer Disputes Redressal Forum, Amritsar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President Present:-
For the petitioner : Shri Updip Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This revision petition by Ashok Rampal, petitioner/complainant, is directed against the order dated 29.1.2015 passed by District Consumer Disputes Redressal Forum, Amritsar (in short, "District Revision Petition No.14 of 2015 2 Forum"), vide which the application filed by him to recall Dr. Manuj Wadhwa, respondent No.2/opposite party No.2, for cross- examination, was dismissed.
2. The facts, in brief, are that the complainant filed complaint against the respondents/opposite parties under Section 12 of the Consumer Protection Act, 1986, for directing them to pay Rs.12,00,000/-, spent on his treatment from 17.6.2010 onwards, along with compensation of Rs.5,00,000/- for gross medical negligence committed by them. He alleged therein that he was having some pain in both the knees and had slight problem in the movements. Accordingly he went to opposite party No.1-Hospital, where he was checked by opposite parties Nos.2 and 3, who advised him to get both his knees replaced and assured that they had complete infrastructure for doing that surgery. The replacement surgery of both the knees was done on 18.6.2010 and he was informed that the same was successful and was discharged on 25.6.2010 in spite of the fact that he complained of the restricted movements of the knees and acute pain in the same. He had been following the advice of the opposite parties for follow-up action and had been adhering to the treatment, as advised by them. On 1.7.2010 he was told that his bad condition was on account of septicemia, which was hospital infected and that the bedsores were worst. He was re-admitted in the Hospital and was discharged on 15.7.2010, though his condition was not satisfactory. The pus remained oozing out of the operation wound side and the medicine was administered to him unethically without considering the side- Revision Petition No.14 of 2015 3
effects. On 8.3.2011 he consulted Dr. Avtar Singh of Amandeep Hospital, who advised for redo surgery of both the knees total replacement on the ground that the earlier surgery had failed. That shows that the opposite parties were totally negligent and careless while giving medical treatment to him. In rebuttal to the evidence of the complainant the opposite parties tendered in evidence affidavit of opposite party No.2, in which he detailed the procedure adopted for the treatment of the complainant and also deposed that there was no such medical negligence on the part of the opposite parties while treating the complainant. The complainant filed an application dated 12.2.2014 for the cross-examination of that opposite party and he was allowed to be cross-examined through interrogatories. 12 interrogatories were served upon him and he gave answers to all those interrogatories by means of his affidavit. Not satisfied with those answers, the complainant filed application dated 15.1.2015 for recalling that opposite party for cross-examination on the ground that he had expressed certain technical points regarding the medical text and had stated the factual position falsely and those aspects can be explored only by way of his cross-examination. The application was opposed by the opposite parties and after hearing the arguments for both the sides the same was dismissed, vide aforesaid order.
3. I have heard the learned counsel for the petitioner and have carefully gone through the records of the case.
4. It has been submitted by the learned counsel for the petitioner that opposite party No.2 did not give correct replies to the interrogatories served upon him and he has given evasive replies. In Revision Petition No.14 of 2015 4 addition to that he has deposed about the technical position and all those facts can only be clarified through his further cross- examination and such further cross-examination is to be allowed in view of the judgment of the Hon'ble Supreme Court reported in 2002(2) CPC 640 (SC) (Dr. J.J. Merchant and others v. Shrinath Chaturvedi).
5. Having carefully gone through the records, the impugned order and the judgment, so relied upon by the learned counsel for the petitioner, I am of the considered view that no illegality or material irregularity was committed by the District Forum while dismissing the application while exercising the jurisdiction, so vested, in it. The prayer of the complainant for cross-examination of opposite party No.2 was allowed and he was permitted to be cross-examined through interrogatories. The detailed replies to those interrogatories were given by that opposite party by means of his affidavit. Having gone through the interrogatories and those replies, annexed with the revision petition as Annexure P-4 and P-5 respectively, it has been found that no such evasive reply has been given nor any such opinion has been expressed on the technical point, which requires his further cross-examination. In case such a procedure is adopted, there will be no end to the proceedings. In Dr. J.J. Merchant's case (supra) it was never held by the Hon'ble Supreme Court that after the permission is given to a party to cross-examine the other party by way of interrogatories, he can still be permitted to further cross- examine him. The relevant portion of that judgment, upon which the Revision Petition No.14 of 2015 5 reliance was placed by the learned counsel for the complainant, is reproduced below:-
"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 District Forum 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 who calls him for evidence. It also provides that witness could be examined by the Court or the Commissioner appointed by Revision Petition No.14 of 2015 6 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 conferences or asking questions by arranging telephone conferences 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."
6. In fact, that judgment supports the case of the complainant. The complaints under the Consumer Protection Act, 1986, are Revision Petition No.14 of 2015 7 required to be decided within the time frame mentioned therein and to cut short the time, the District Forum adopted the correct procedure of cross-examination of opposite party No.2 by way of interrogatories. At the time of arguments, learned counsel for the complainant could not point out any answer to any of the interrogatories, which may entitle the complainant to ask that opposite party to give further reply to any of those interrogatories or to make out a case for his further cross-examination. There is no merit in this revision and the same is hereby dismissed in limine.
(JUSTICE GURDEV SINGH) PRESIDENT April 13, 2015 Bansal