State Consumer Disputes Redressal Commission
Dr. S. K. Chatterjee vs Smt. Sugata Roy & Anr. on 6 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/88/2018 ( Date of Filing : 25 May 2018 ) (Arisen out of Order Dated 08/05/2018 in Case No. Complaint Case No. CC/549/2017 of District Kolkata-III(South)) 1. Dr. S. K. Chatterjee C/o Ramkrishna Optical, 104, Raja S.C. Mullick Road, P.O. Naktala(Garia), P.S. Netaji Nagar, Kolkata - 700 047. ...........Appellant(s) Versus 1. Smt. Sugata Roy & Anr. W/o Sri Bholanath Roy, 298, Banerjee Para Road, Chatterjee Bagan, P.S. - Haridevpur, Kolkata - 700 041. 2. Sidheswari Drugs 5/27, Netaji Nagar, P.S. Netaji Nagar, Kolkata - 700 040. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Petitioner: Mr. R. K. Choumal, Ms. Debarati Chatterjee, Advocate For the Respondent: Mr. Tapas Sil, Advocate Dated : 06 Mar 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
The instant revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as, 'the Act') is at the behest of opposite party No.1 Dr. S.K. Chatterjee to assail the OrderNo.14 dated 08.05.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (in short, 'Ld. District Forum') in MA/109/2018 stems from Consumer Complaint No. 549/2017 whereby the application filed by the revisionist/OP No.1 to allow him to cross-examine the complainant on dock was rejected.
The opposite party No.1 herein Smt. Sugata Roy lodged a complaint under Section 12 of the Act before the Ld. District Forum on the allegation of medical negligence resulting to damage of her left eye with prayer for several reliefs, viz.- (a) direction for opinion of the expert medical practitioner into the matter, (b) direct the Opposite Party No.1 to pay the actual expenses incurred towards Pharmacy, Medical Test Report, and Doctors Expenses as per bills and other expenses to Rs.27,278.00/- (Rupees Twenty Seven Thousand Two hundred seventy Eight) only, (c) direct the opposite party No.1 to pay Rs.5,00,000/- (Rupees Five Lakhs) only for long process Medical treatment of damaged eyes, (d) to direct Opposite Party No.1 to pay compensation of Rs.5,000/- medical treatment of damaged eye; (e) to direct OPs to pay compensation of Rs.3.5 Lakhs (Rupees Three lakhs Fifty Thousand) only for mental agony and harassment; (f) litigation cost amounting to Rs.50,000/- (Rupees fifty Thousand) only and (g) any other compensation as your Honour may deem fit and proper.
After entered appearance, the revisionist being opposite party No.1 by filing Written Version is contesting the case and the case is now pending for filing evidence on affidavit by OPs as a last chance.
Seen the materials on record and considered the submission advanced by the Ld. Advocate for the petitioner/revisionist and OP No.1.None appears for OP No.2 to contest the case.
Having heard the Ld. Advocate for the respective parties and on perusal on the materials on record it would reveal that the complainant has tendered evidence on affidavit on 11.01.2018.Thereafter, OP NO.1/revisionist has filed questionnaire on 09.02.2018 to test the veracity of statement of the evidence of the complainant.Subsequently, the complainant has given answer to the questionnaire set forth on behalf of OP No.1/revisionist on 27.02.2018.
Ld. Advocate for the revisionist has submitted that the answers /replies given by the complainant is not permissible under the law, particularly in case of serious allegations of the alleged medical negligence.He has also submitted that languages used by the complainant in her reply is offensive and not permissible in any legal proceedings.
Ld. Advocate for OP No.1/complainant has contended that in accordance with the decision of the Three-Judge Bench of the Hon'ble Supreme Court reported in (2002) 6 SCC 635 (Dr. J. J. Merchant and Ors. Vs.- Sreenath Chaturbedi) there is no scope on the part of Ld. District Forum to allow the OP No.1 to examine the complainant on dock and as such the Ld. District Forum has rightly rejected the application.He has also submitted that after filing questionnaire by the OP No.1 there was hardly any scope to ask for cross-examination of the complainant and the Ld. District Forum referring to the decision reported in Three-Judge Bench of the Hon'ble Supreme Court reported in (2011) 9 SCC 541 (Rajeev Hitendra Pathak and Anr. Vs.- Achyut Kashinath Karkar and Ors.) has rightly dismissed the application.
The scope of revisional jurisdiction of State Commission flows from the provision of Section 17(1)(b) of the Act which is reproduces below:
"To call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity".
Therefore, the scope of invoking revisional jurisdiction is very limited and unless there is any legal error or material irregularity, there is hardly any scope to interfere with the order.
The materials on record indicate that the OP No.1 has already filed questionnaire to which reply has been given by the complainant.Therefore, at this stage, there was hardly any scope on the part of the Ld. District Forum to allow the application in order to enable OP No.1 to cross-examine the complainant on dock.Moreover, the concept of examining the complainant on dock is not permissible in view of the decision of the Hon'ble Supreme Court in the case of Dr. J.J.Merchant (Supra) where it has been observed-
"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 affidavit.In case where stakes are very high and still a party intends to cross examine such doctors or experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the persons who claims such video conference.Further, cross examine can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time".
Whether a particular statement given by the complainant against the questionnaire set forth by OP No.1 is consistent or not or whether it relevant or not will be considered by the Ld. District Forum on merit. But taking into consideration of ratio of decision in the case of Dr. J.J. Merchant and others (Supra) this Commission has no other option, but to hold that there was no illegality or material irregularity in passing the order impugned.In other words, we do not find any illegality or infirmity in the impugned order calling for interference in our limited revisional jurisdiction as envisaged by the Hon'ble Apex Court in a decisionreported in (2011) 11 SCC 269[Mrs Rubi (Chadra) Dutta Vs-United India Insurance Co. Ltd.] Consequently, the revision petition is dismissed on contest. However, there will be no order as to costs.
The impugned order is hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 27.03.2019 and the Ld. District Forum is requested to proceed to dispose of the case in accordance with law.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER