National Consumer Disputes Redressal
Dr. Veena Mattu & Anr. vs Saket City Hospital & Anr. on 8 March, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1557 OF 2016 (Against the Order dated 29/09/2016 in Complaint No. 633/2014 of the State Commission Delhi) 1. DR. VEENA MATTU & ANR. R/O. 705A, BEVARLI PARK-1, DLG PHASE-2, M.G. ROAD, GURGAON-122009 2. SMT. KUNTI KAW R/O. E-351 NIRMAN VIHAR, NEW DELHI-110009 ...........Appellant(s) Versus 1. SAKET CITY HOSPITAL & ANR. MANDIR MARG, PRESS ENCLAVE ROAD, SAKET, NEW DELHI-110017 2. DR. JINDAL SIR GANGA RAM HOSPITAL, CARDIOLOGY DEPARTMENT, CCU, 5TH FLOOR, RAJENDRA NAGAR, NEW DELHI-110006 3. DR. JINDAL ALSO AT : 2647/194, OMKAR NAGAR-A, TRINAGAR, NORTH DELHI, NEW DELHI-110035 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER For the Appellant : Appellant No.1 in person With Mr. Datta Trevyas, Advocate For the Respondent : For the Respondent No.1 : Mr. C. Ravikesh Sinha, Advocate For the Respondent No.2 : Mr. Roshan Lal Goel, Advocate Dated : 08 Mar 2017 ORDER This appeal is directed against the order of the State Commission, Delhi dated 29th September, 2016 whereby the State Commission dismissed the application of the appellants for serving interrogatories in the nature of cross-examination on opposite party No.2. the relevant observations of State Commission are reproduced as under: -
"OP-2 has moved an application for serving interrogatories as well as reply to application already moved by complainant for interrogatories. OP-2 has not given answer to the interrogatories. Since the proceedings under Consumer Protection Act are summary in nature, the application of complainant vis-à-vis OP-2 both are rejected."
The appeal, however, has been filed after the expiry of 30 days period of limitation with a delay of 26 days. The appellants have, therefore, moved an application for Condonation of delay being IA/11779/2016. Heard. In view of the reason given in the application, delay in filing of appeal is condoned.
Learned counsel for the appellants has assailed the order of the State Commission on the ground that the State Commission has failed to appreciate that cross-examination of witness is a valuable right of a litigant which is the only way to check the veracity and correctness of the evidence adduced by the -3- witness. We fully agree with this contention. Hon'ble Supreme Court in the matter of J.J. Merchant & Ors. vs. Shrinath Chaturvedi (2002) 6 SCC 635 has observed as under: -
"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 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 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 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 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 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.
Similar action is also expected from the National Commission as well as State Commissions. Hence, for avoiding delay in disposal of complaints within prescribed period, National Commission is required to take appropriate steps including:
(a) By exercise of Administrative control, it can be seen that competent persons are appointed as Members on all levels so that there may not be any delay in composition of the Forum or the Commission for want of Members;
(b) It would oversee that time limit prescribed for filing defence version and disposal of complaints is strictly adhered to;-4-
(c) It would see that complaint as well as defence version should be accompanied by documents and affidavits upon which parties intend to rely;
(d) In cases where cross-examination of the persons who have filed affidavits is necessary, suggested questions of cross-examination be given to the persons who have tendered their affidavits and reply may be also on affidavits;
(e) In cases where Commission deems it fit to cross- examine the witnesses in person, video conference or telephonic conference at the cost of person who so applies could be arranged or cross-examination could be through a Commission. This procedure would be helpful in cross-examination of experts, such as, Doctors.
In view of the settled position of law as also in interest of justice the order of the State Commission cannot be sustained. It is accordingly set aside. It is submitted that interrogatories in the nature of cross examination have already been served upon opposite party No.2. Opposite party No.2 is directed to file response to the interrogatories on affidavit in the State Commission within four weeks with advance copy to the counsel for the complainants as well as opposite party No.1.
-5-Counsel for opposite party No.2 states that his application for serving interrogatories upon the appellant is also pending which was not considered by the State Commission because the application of the appellant was dismissed. Therefore, in interest of justice, we direct that appellant shall also file response to the interrogatories of opposite party No.2 on affidavit within four weeks.
Parties to appear before the State Commission on 16.3.2017, the date already fixed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER