National Consumer Disputes Redressal
Mathura Mahto Mistry vs Bindeshwar Jha (Dr.) And Anr. on 31 October, 2007
Equivalent citations: I(2008)CPJ109(NC)
ORDER
B.K. Taimni, Member
1. Appellant was the complainant before the State Commission where he had filed a complaint alleging medical negligence on the part of the respondents. Upon issue of notice, the matter was contested before the State Commission, who after hearing the parties dismissed the complaint, as the complainant had failed to adduce the expert opinion in support of allegations made by him. Aggrieved by this order this appeal has been filed before us.
2. We heard the learned Counsel for the parties at some length. After going through the material on record we find that the State Commission clearly has not followed the provisions of Section 13(2)(a)(b)(i) of the Consumer Protection Act, which reads as under:
(2) The District Forum shall, if the (complaints admitted) by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services-
(a) Refer a copy of such complaint to the opposite party directing him to give version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
(b) Where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute;
(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint.
(Emphasis supplied)
3. Undisputedly, in this case, the factum of medical negligence was vehemently opposed by the respondent. In support of their contentions, he respondents had also produced medical literature. But what we find quite strange is that the State Commission, in view of the clear provisions of Section 13(2)(i) of the CPA, did not direct the parties to lead evidence in support of respective contentions.
4. Disposing of the complaint, especially in a case of medical negligence, without directing the parties to file evidence by way of affidavits, illegality is writ large on the face of it. Both the parties obviously did not get an opportunity to prove their respective case, in view of which, we are unable to sustain the order passed by the State Commission, which is set aside and the case is remanded back to the State Commission to give an opportunity to both the parties to lead evidence by way of affidavits as also permit cross-examination, if so requested. The State Commission may also consider obtaining an expert opinion, if so requested by the complainant, and only then pass the orders on merits. Both the parties are directed to appear before the State Commission on 10.12.2007.
5. Since this is an old case, the State Commission is requested to dispose of the case at the earliest preferably within a period of 6 months from the date of first appearance before them.