State Consumer Disputes Redressal Commission
Eusebio Procopio Dulces De Braganca, vs Central Bank Of India Raia Branch, on 10 July, 2012
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI- GOA Revision Petition No. 02/2011 1. Eusebio Procopio Dulces De Braganca, major of age, and his wife; 2. Jean Elvin Themudo, major of age, both residents of House No. 583, Majilvaddo, Raia , Goa. 3. Agnela Ofelia De Braganca, major of age, and her husband; 4. Leo Neves Themudo, major of age, both residents of House No. 276, Battyvaddo, Orlim, Goa. Petitioners/Orig. complainants v/s 1. Central Bank of India Raia Branch, Rep. by Branch Manager, Raia, Salcete, Goa. .. Resp.No. 1/O.P. No. 1 2. Miss. Lizia De Jesus Pereira, (since deceased), Resident of House No. 19/8, C/o Mrs. Zita Pereira e Pinto, Olaulim,Pomburpa, Bardez, Goa .. Resp. No. 2/O.P. No. 2 a) Mrs. Anjali Pereira, aged 34 years; and her husband b) Mr. Charles Arthur Vijay Lobo, major of age, S/o. late Bernardinho J. Lobo; both r/o. Fernandes Building, Fontainhas, Mala, Panaji, Goa 403 001; c) Mr. Arun Pereira, aged 31 years, r/o. BF-4, Bhagyadham Residency, Murmuti, Margao, Goa. 403 601 d) Mrs. Ana Zita de Jesus Pereira e Pinto, 19/8, Olaulim, Pomburpa, Bardez, Goa. Petitioners/original complainants are represented by Adv. C. Mascarenhas. Respondent No. 1/O.P. No. 1 is represented by Adv. S. V. Kamat. Respondent Nos. 2 (a) to (d) exparte. Coram: Shri Justice N.A. Britto, President Shri. Vidhya R. Gurav, Member Dated: 10/07/2012 ORDER
[Per Shri Justice N. A. Britto, President] This Revision is filed under Section 17(1) (b) of the C.P. Act, 1986 and is directed against order dated 14/10/10 of the Lr. District Forum, South Goa, by which the complainants application dated 10/03/03 calling for cross examination of the Branch Manager of O.P. No. 1, has been dismissed.
2. Some facts are required to be stated to dispose off this revision.
3. Original complainant Lia De Jesus Pereira (since deceased and now represented by the Petitioners herein) an original O.P. No. 2 Lizia (since deceased and now represented by Respondent Nos. 2(a) to (d)) are sisters. There is a money multiplier deposit certificate dated 8/3/01 with maturity value of Rs. 93,885/- with O.P. No. 1 in the joint names of Lia and Lizia payable to either or survivor. The complainant claims that she has the original certificate and money due exclusively belongs to her while O.P. No. 2 claims that the same was stolen from her.
Initially, the complaint was filed only against O.P. No. 1, Central Bank of India, and an objection as regards non joinder having been taken by them, O.P. No. 2 came to be added, subsequently.
4. The complainant/s filed their affidavit in evidence on 19/6/09. O.P. No. 1 filed their affidavit in evidence on 20/7/09 and then O.P. No. 2 filed her affidavit in evidence on 18/2/10. The O.P. No. 1 in their written version as well as their affidavit in evidence of their Manager have taken a stand that the money due on the said certificate exclusively belongs to O.P. No. 2 Miss. Lizia de Jesus Pereira as the initial deposit dated 4/2/1986 for Rs. 20,000/- was exclusively in her name, etc, and, it is for that reason that the application dated 10/3/03 came to be filed for the cross-examination of the said Manager.
No application has been filed for cross examination of O.P. No. 2 as it is she who claims that the amount belongs to her, exclusively.
5. The Lr. District Forum in dismissing the said application has come to the conclusion that the Higher Courts under the C.P. Act, 1986 do not engage (sic encourage) the practice of allowing the application for cross-examination in every case as a matter of course unless there is manifest reason or grounds reflected in such application and that they do not find any reason to allow the same as the grounds given in the application are not convincing.
6. Both the parties namely the complainants and O.P. No. 1 have filed written submissions and we have perused the same.
7. According to the complainant/s, the delay in filing the application of about 8 months ought not to have come against the complainant/s because the Forum was either not functioning at all or used to sit with the single member in fits and starts and being so, no prejudice would have caused to O.P. No. 1 by the so called delay. The complainants contend that they wanted the Branch Manager to be cross examined on the statement made by the said Br. Manager that the money due belongs to the said O.P. No. 2 Lizia de Jesus Pereira, inspite of the fact that the complainant Lia was a holder of the original certificate and had presented the same to the Bank for encashment. Reliance has been placed on behalf of the complainant/s on two decisions, one in the case of Salgaonkar Medical Registration Centre (1996 (2) CPR 80 NC and the other in Narmada Cement Company Ltd., (1992(1) CPJ 299 NC).
8. We have perused the said two decisions and we need to observe that since then much water has flown down the river Sal.
9. We do appreciate that the District Forum was not functional for a considerable long time in as much as it could not have functioned with one member but that does not mean that the complainant/s could not be more deligent and file the application in time. There can be no dispute that the proceedings under the C.P. Act, 1986 are summary in nature which are decided on the basis of affidavits and documents produced by the parties and therefore cross examination, if any, had to be a rare exception, rather than a matter of rule. The Apex Court in Dr. J.J. Merchant & ors. vs. Srinath Chaturvedi (2002(6)SCC 635) has observed in para 19 that it is the discretion of the Commission to examine the experts if required in an appropriate matter.
The Apex Court has noted that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time and has held that the Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings, the only caution required being to follow the said procedure strictly. The Apex Court has further held that the affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross examination is sought for by 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 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 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.
10. The Apex Court in V. Kishan Rao vs. Nikhil Super Speciality Hospital & anr. (2010 (5)SCC 513) has held that the complaints before the Consumer Fora are tried summarily and the Evidence Act in terms does not apply as held in Malay Kumar Ganguly (2009 (9) SCC 521 ) and that the Fora are to follow the principles of natural justice.
11. The National Commission in the case of Neeraj Amarnath Dora (2011 (3) CPR 162 (NC) after referring to Dr. J. J. Merchant and ors. (supra) and its earlier decision in the case of Smt. Indrani Bhattacharjee decided on 3/12/04 has held that:
Henceforth in all matters wherever there is a prayer for cross-examination of the witness by the learned advocates for the parties, learned advocates to produce the interrogatories on record and those interrogatories should be replied by the concerned parties on affidavit.
Thereafter, the Commission would decide whether any cross-examination on any point is necessary or not. The Lr. Commission has observed that instead of recording the cross-examination may follow the practice of asking the parties to give interrogatories and thereafter reply of interrogatories on affidavits should be taken on record first, instead of permitting lengthy cross-examination.
12. Admittedly, the complainant/s did not seek the cross examination of the said Br. Manager through interrogatories and that should have been the first rule, if at all, if any witness was required to be cross examined, in this summary jurisdiction. As far as the facts of the case go the application was without any merits either for cross examination through interrogatories or for that matter for oral cross examination as the said Br. Manager had supported the inferences drawn by him, in favour of O.P. No. 2 Lizia, on the basis of documents annexed to his affidavit. In such a situation no useful purpose would have been served either by raising interrogatories or calling him for oral cross examination.
13. Before concluding we must note that the provisions of section 17(1)(b) applicable to the State Commission are in para materia the same as the provisions of Section 21(1)(b) applicable to the National Commission and with reference thereto the Apex Court in Mrs. Rubi (Chandra) Dutta vs. M/s. United India Insurance Company Ltd., (2011 (3) Scale 654) has held that the power of revision can be exercised only if there is some prima facie jurisdiction error appearing in the impugned order or in a case where legal principle is ignored by the fora below.
14. There is none in this case. We find there is no merit in this revision petition. The same is hereby dismissed with no order as to costs.
15. The parties are hereby directed to remain present before the Lr. District Forum on 24th instant at 10.30 a.m. The Lr. District Forum is hereby directed to dispose off the complaint as expeditiously as possible and in any event within a period of three months as the complaint is pending for disposal for almost seven years now when it ought to have been disposed off as per the mandate of sub-Section (3A) of Section 13 of the C.P. Act, 1986. We also direct O.P. No. 1 to renew the said money multiplier deposit certificate from the date of its maturity i.e. from 11/08/03 or as per existing guidelines of the R.B.I for another period of one year to be paid to the parties entitled to the same as per the decision of the Lr. District Forum, by leaving all contentions open.
[Smt. Vidhya R. Gurav] [Shri. Justice N.A. Britto] Member President