State Consumer Disputes Redressal Commission
Smt. Parvati Devi Hospital & Anr. vs Late Vandana Kapoor ( Since Deceased ) ... on 30 March, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Revision Petition No.34 of 2021
Date of institution : 06.12.2021
Reserved on : 24.03.2022
Date of decision : 30.03.2022
1. Smt. Parvati Devi Hospital, A-Block Ranjit Avenue, Amritsar,
through its Authorized Representative.
2. Dr. Ravinder Singh Malhotra, C/o Smt. Parvati Devi Hospital, A-
Block, Ranjit Avenue, Amritsar.
.....Petitioners/Opposite Parties No.1&2
Versus
Late Smt. Vandana Kapoor (since deceased) W/o Sh. Piara Lal
Kapoor, represented by her legal heirs/representatives namely :-
1. Piara Lal Kapoor age about 74 years, S/o Sh. Sardari Lal
Kapoor, R/o 24-B, Maqbool Road, Anand Avenue, Amritsar-
143001 (husband).
2. Archana Malhotra W/o Amit Malhotra, R/o 7-B, Rani Ka Bagh,
Amritsar (daughter).
3. Divya Khanna W/o Karan Khanna, R/o 39, Rattan Chand Road,
Amritsar (daughter).
4. Ankit Kapoor S/o Piara Lal Kapoor, R/o 24-B, Maqbool Road,
Anand Avenue, Amritsar-143001 (son).
.....Respondents/Complainants
Revision Petitioner under Consumer
Protection Act, 2019 against the order
dated 24.08.2021 passed by the
District Consumer Disputes Redressal
Commission, Amritsar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
Revision Petition No.34 of 2021 2
1) Whether Reporters of the Newspapers may be
allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the petitioners : Sh. Sukhandeep Singh, Advocate For the respondents : Sh. Neeraj Yadav, Advocate ..................................................................................
JUSTICE DAYA CHAUDHARY, PRESIDENT The petitioners/opposite parties No.1 & 2 i.e. Smt Parvati Devi and Dr. Ravinder Singh Malhotra have filed the present revision petition before this Commission for setting aside impugned order dated 24.08.2021 passed by the District Consumer Disputes Redressal Commission, Amritsar (in short the "District Commission") in Consumer Complaint No.364 of 2019 titled as "Late Smt. Vandana Kapoor (since deceased), through her LRs & others Vs. Smt. Parvati Devi Hospital & others", whereby the application filed by the petitioners has partly been allowed and the petitioners have been denied to cross-examine the witnesses of the complainant.
2. Petitioners filed Miscellaneous Application No.1340 of 2021 alongwith revision petition for condonation of delay of 8 days in filing of the revision petition, which was condoned by this Commission, vide order dated 09.12.2021.
3. Mr. Sukhandeep Singh, Advocate learned counsel for the petitioners submits that the District Commission while allowing interrogatories has failed to appreciate certain material facts that the complainant in the examination-in-chief raised certain serious allegations of medical negligence which were not only wrong but Revision Petition No.34 of 2021 3 against the facts as well. He also submits that the allegations raised in the examination-in-chief were not only malicious against the petitioners but the professional reputation of the petitioners was put at stake and as such the cross-examination of witness is necessary for proper adjudication of the matter in dispute.
4. Learned counsel further submits that the learned District Commission has failed to appreciate the settled principle of law as laid down in case titled as Dr. Swaroop Gopal Vs. Goli Venkateshwar Rao 2019(2) CPJ-226 passed by the Hon'ble National Commission with certain observations. It is also the argument of learned counsel for the petitioners that the judgment of Dr. J.J. Merchant & others Vs. Shrinath Chaturvedi 2002(6)SCC-635 has upheld the powers of Consumer Courts to cross-examine the witness. The District Commission vide impugned order dated 24.08.2021 has failed to appreciate that the Consumer Act would loose its object in case the cross-examination of witness is not allowed. Learned counsel also submits that the District Commission has taken incorrect appreciation of the facts as well as law in the impugned order dated 24.08.2021 and the same is liable to be set aside being not sustainable in the eyes of law. Learned counsel has also relied upon judgments of the Hon'ble National Commission of cases "Surinder Singh Saini Vs. Blossom Cooperative House Building First Society Ltd. & others"
2020(1)C.P.R.-263, "Cellular Operators Association of India & another Vs. Nivedita Sharma & other" 2013(4)C.P.J.-265, and "IFFCO Tokio General Insurance Co. Ltd. Versus Jaysukhlal Jentilal Naku" 2020(1)C.P.R.-830 in support of his arguments.Revision Petition No.34 of 2021 4
5. Mr. Neeraj Yadav, Advocate learned counsel for the respondents/complainants has opposed the submissions made by the learned counsel for the petitioners. He further submits that the impugned order dated 24.08.2021 is well reasoned and the same has been passed keeping in view the facts and circumstances of the case and also the fact that the witness Sh. Piara Lal Kapoor to whom the petitioners/OPs No.1 and 2 wanted to cross-examine was about 74 years of age and it would cause not only harassment to witness but no purpose would be served as the matter in dispute is to be decided on the basis of affidavits and documents and for that lengthy cross- examination of witness is not warranted. The controversy in the present case is squarely covered by judgment of the Hon'ble National Commission of case Con Décor Rep. by its Managing Director Vs. Smt. Smritikanan Ghose & another 1986-2005 Consuer 9178 (NS)=2002 CLT-434. Learned counsel further submits that judgment of Dr. J.J. Merchant (supra) of the Hon'ble Supreme Court is still holding the field and the impugned order has been passed by relying upon said judgment. Learned counsel has also relied upon judgments of the Hon'ble National Commission of case "Acron Developers Pvt. Ltd. & other Vs. Rajesh Malhotra & others" Revision Petition No.3413 of 2012, decided on 09.10.2012 and "Neeraj Amarnath Dora Vs. Nandan Hospital and others" Original Petition No.187 of 1999, decided on 05.05.2011 in support of his arguments.
6. Heard the arguments at length raised by learned counsel for the parties. We have also carefully perused the impugned order dated 24.08.2021 which is under challenge and also the documents Revision Petition No.34 of 2021 5 available on the file. We have also gone through the judgments cited by learned counsel for both the parties.
7. Briefly, the facts of the case are that late Smt. Vandana Kapoor (since deceased) through her legal heirs [Piara Lal Kapoor (husband), Archana Malhotra (daughter), Divya Khanna (daughter) and Ankit Kapoor (son)] filed a complaint under Section 12 and 13 of the Act, 1986 (as amended upto date) with the prayer to issue directions to the OPs to pay compensation amount of Rs.15,00,000/- on account of medical negligence, 'unfair trade practice' and 'deficiency in service' on the part of the OPs causing mental pain, agony, physical harassment, loss of health of complainant as well as monetary loss as a huge amount was spent for the treatment of Vandana Kapoor (since deceased). Not only an amount of Rs.15,00,000/- was claimed as compensation but Rs.4,00,000/- was also demanded on account of loss love and affection to the complainants on account of death of Vandana Kapoor alongwith an amount of Rs.50,000/- as litigation charges.
8. During pendency of the complaint an application was filed by the OPs for cross-examination of witnesses of the complainants on the ground that the complainants had filed an affidavit of one witness namely Piara Lal Kapoor who had alleged certain allegations of medical negligence as well as allegations of malicious and derogative remarks due to which the professional reputation of the petitioners- doctor and hospital was at stack. The cross-examination of said witness qua this issue was required to be done by way of cross- examination. Said application was partly allowed with the direction to Revision Petition No.34 of 2021 6 furnish interrogatories to the counsel of complainants within a period of 15 days from the date of passing of the order. The counsel for the complainants was also directed to file reply to the interrogatories by way of affidavit.
9. Admittedly, the examination of witness includes cross- examination as well. As per principle of law the object of provisions of examination/cross-examination is to get the truth. It is also not disputed that object of the Consumer Protection Act is to dispose of the matter in a summary manner. However Section 13 of the Act gives powers to Consumer Forum to exercise civil power under C.P.C. for examination of witnesses which includes permitting the cross- examination either in the court or through appointment of Local Commissioner. However, it is the discretion of the Consumer Court to examine the expert if required in a particular case. The same issue was there before the Hon'ble Supreme Court in J.J. Merchant's case (Supra), wherein the Hon'ble Supreme Court has held as under:-
"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 consumer 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 18 of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of Revision Petition No.34 of 2021 7 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 find 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 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."
In said judgment of J.J. Merchant's case, the Hon'ble Supreme Court has specifically held that the Commission has the same powers to examine the witness as conferred on Civil Courts under order 18 Rule 4 of C.P.C. which includes the power to examine the witness by affidavit and to cross-examine the witness in view of Section 13(4)(v) and Rule 4 of Order 18 of C.P.C. In that case the Hon'ble Supreme Court rejected the argument that it would delay the disposal of the proceedings. The Hon'ble Supreme Court also issued certain guidelines in J.J. Merchant's case. It was also held that the Commissions were to exercise the powers only in appropriate cases but not in a routine manner. It was further observed that the discretion Revision Petition No.34 of 2021 8 to exercise such powers by the Commissions depended on the facts and circumstances of that particular case. The Hon'ble Supreme Court had restricted the powers of Commissions only to examination-in-chief or examination of witness through interrogatories. The cross- examination can be done either on oath before the Commission or through Local Commissioner so appointed by the Commission.
10. The judgments of the Hon'ble National Commission relied upon by the parties i.e. Acron Developers, Neeraj Amarnath Dora and Dr. Swaroop Gopal (Supra), are based on the ratio of judgment of Hon'ble Supreme Court of case J.J. Merchant (Supra) and no different view has been held even by the Hon'ble Supreme Court contrary to ratio of judgment of J.J. Merchant's case till date. The other judgments relied upon by learned counsel for the petitioners of cases Surinder Singh Saini, Cellular Operators and IFFCO Tokio (Supra) are not applicable to the facts of the present case as in the present case the District Commission has partly allowed the application filed by the petitioners/OPs No.1 and 2 for cross- examination of witness of the complainants namely Sh. Piara Lal Kapoor by way of interrogatories and the complainants were directed to file reply to the interrogatories by way of affidavit. By following the ratio of judgments of the Hon'ble National Commission of cases Con Dor Rep. by its Managing Director and Acron Developers (Supra) based on the judgment of Hon'ble Supreme Court of case J.J. Merchant (Supra), the District Commission has correctly passed the impugned order dated 24.08.2021 and no interference is required therein.
Revision Petition No.34 of 2021 9
11. In view of above discussion and ratio of judgment of the Hon'ble Supreme Court of case J.J. Merchant (Supra), we do not find any illegality/irregularity in the impugned order dated 24.08.2021 passed by the District Commission and as such the revision petition filed by the petitioners/OPs No.1 and 2 is hereby dismissed.
12. The revision petition could not be decided within the stipulated period due to heavy pendency of Court cases and non- sitting of this Commission due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY)
PRESIDENT
(URVASHI AGNIHOTRI)
March 30, 2022 MEMBER
MM