0 - Madhya Pradesh State Consumer Disputes Redressal Commission

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
CC No.20 / 2011.
SANAVAR KHAN.
VS.
DR. ASHA SARAF.
Date of
Order
30.7.14.
2.
3.
…. COMPLAINANT
…. OPPOSITE PARTY
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
Shri V. K. Saxena, learned counsel for the
complainants.
Shri Deepesh Joshi, learned counsel for the
opposite parties no.1, 2 and 3.
Shri Pradeep Nighojkar, learned counsel for the
opposite party no.4.
4.
Heard
on
IA/2
and
IA/3,
respectively
the
applications under Order 19 Rule 2 read with
Section 151 of C.P.C. and under Section 13 (4) of
the Consumer Protection Act read with Section 151
of the CPC filed by the complainants.
5.
Learned counsel for the complainants submits that
the opposite parties have filed a report of Madhya
Pradesh Medical Council, Bhopal dated 24.12.2011
(R/23) purporting to be based on the report of Chief
Medical & Health Officer, (CMHO) District Ratlam.
The report of the CMHO is a biased report and has
been obtained with a view to shield and protect the
interest of local doctors. Counsel submits that in
the said situation the truth of the
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
report could be brought out only if the CMHO,
Ratlam and Dr.L. S. Chauhan, who conducted the
inquiry are subjected to cross-examination before
the Commission. Counsel further submits that since
report by Dr. Varuna Pathak, Assistant Professor,
Gandhi Medical College, Bhopal has also been filed
by the opposite parties, the cross-examination of the
said doctor is also essential.
Besides above,
learned counsel also prays for cross-examination of
Dr. Smt. Asha Saraf (opposite party no.1) who has
sworn affidavit in support of her written statement.
In the application in section 13 (4) of the C.P. Act
learned counsel submits that under the orders of the
Authorities, Dr. L.S. Chauhan had conducted inquiry
and on that basis CMHO, Ratlam has submitted his
report on 8.1.2009 ( R/8) to Collector, Ratlam along
with documents. An inquiry was also conducted by
Additional Director (Complaints), Medical Services,
Bhopal through Gandhi Medical College, Bhopal.
This inquiry was conducted
by
Dr.
Varuna
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
Pathak, Assistant Professor, Gynaelocogy, Gandhi
Medical College, Bhopal who submitted report dated
9.10.2009
(R/11). However, along with copy of the
report no documents have been filed by the
opposite party no.1.
In this view of the matter,
learned counsel submits that Dr. L.S. Chauhan and
Dr. Varuna Pathak be summoned as court witnesses
before the Commission with complete reports and
related documents.
6.
In his reply, the learned counsel for opposite parties
no.1, 2 and 3 submits that the provisions of Order
19 Rule 2, CPC could only be invoked when a
person has proved any point by affidavit to support
certain facts. Only when an affidavit is filed by one
party, the other party can be permitted to crossexamine the said witness / deponent.
Since no
affidavits have been filed by Dr. L. S. Chauhan or
Dr. Varuna Pathak, the question of summoning them
for cross-examination does not arise.
Learned
counsel submits that since Dr. Smt. Asha Saraf has
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
filed her affidavit, she can only be subjected to cross
examination by interrogatories. She is neither the
resident of Bhopal nor practising in Bhopal.
He
submits that both the aforesaid applications filed by
the complainants deserves to be dismissed.
7.
Learned counsel for the complainants has placed
reliance on the decisions rendered by the National
Commission in Mrs. S. Padmavathy Vs. M/s
Kamineni Hospitals & Ors., 2011 (3) CPC 479,
National Insurance Company Ltd. Vs. Ashok Kumar
Gupta, I (2012) CPJ 547 (NC) and Cellular
Operators Association of India & Anr. Vs. Nivedita
Sharma & Ors., IV (2013) CPJ 265 (NC).
8.
In case of Mrs. S. Padmavathy, supra, the National
Commission observed that an opportunity should be
allowed to the complainant to cross-examine the
expert. In this case the evidence of expert doctor
was recorded on affidavit.
However on
request of the complainant, National
the
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
Commission remitted matter to State Commission to
grant an opportunity to cross-examine the expert. In
case of Ashok Kumar Gupta, supra, the National
Commission observed that District Forum has full
power to summon and examine any witness under
oath in accordance with provisions of section 13 (4)
of the C.P. Act.
Similarly, in case of Nivedita
Sharma, supra, the National Commission observed
that the Consumer Protection Act, 1986 permits
reception of evidence by various Consumer Fora on
affidavits but when party insists that he wants to
cross-examine deponent of affidavit to prove that
affidavit cannot be relied upon, natural justice
requires that permission to cross-examine witness
should be given.
9.
In the instant case, in report R/11 dated 9.10.2009
submitted by Dr. Varuna Pathak it appears that
certain complaints / memorandums were presented
to the Governor and President, Shahar
Congress, Ratlam therefore, she
Mahila
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
was directed to submit her opinion on the basis of
the FIR, the post mortem report and the case
papers of deceased of Ankur Hospital, Ratlam. On
the basis of these papers, Dr. Varuna Pathak
submitted her report. R/23 dated 24.12.2011 is the
inquiry report of Deputy Registrar, M.P. Medical
Council, Bhopal. This inquiry report has also been
submitted on the basis of the report received from
the CMHO, District Ratlam.
R/8 and R/9 are
respectively the inquiry reports submitted by Dr. L.
S. Chauhan of Ratlam.
10.
These reports are the opinions based on fact finding
inquiries which have been conducted on the
complaints made by complainant to the Collector of
District Ratlam and other Authorities. These reports
cannot be presumed to be the opinions of experts,
yet, they are acceptable as the relevant facts on
which the opposite parties no.1, 2 and 3 seek to
place
recorded
reliance.
For
proving the opinions
therein, it would be
necessary
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
for the party who relies upon them to file affidavits of
the persons before the Commission, who conducted
inquiry and tendered the reports.
Under the
provisions of Order 19 Rule 1 and 2, CPC the court
may at any time for sufficient reason order that any
particular fact or facts may be proved by affidavit, or
that the affidavit of any witness may be read at the
hearing.
Though evidence may be given by
affidavit, but the court may, at the instance of either
party, order the attendance for cross-examination of
the deponent. However, the Commission / Forum,
for the expeditious disposal of medical negligence
cases may evolve a procedure permitting the parties
to cross examine the doctor / expert witnesses by
putting questions in writing and these questions to
be replied by expert / doctors on affidavits. (Dr. J. J.
Merchant & Others Vs. Shrinath Chatuvedi, 2013 (4)
CPR 408 (SC).
11.
In view of the above, in the facts and circumstances
of the present case, we deem it appropriate to direct
the opposite parties no.1, 2 and
Date of
Order
ORDER WITH SIGNATURE
Order of the Registrar
on Office noting
3 to file affidavit -- evidence of Dr. L. S. Chauhan,
CMHO and Dr. Varuna Pathak, Assistant Professor,
Gynaecology, Gandhi Medical College, Bhopal to
prove the inquiry reports tendered by them on which
they have placed reliance. On affidavits of the said
witnesses being filed, the complainants would be
free to cross-examine said witnesses on their
affidavit -- evidence by means of interrogatories. As
far as Dr. Smt. Asha Saraf is concerned, she has
tendered her evidence by way of affidavit, therefore,
it would be appropriate to permit complainant to
deliver interrogatories to her in writing which shall
be answered by the witness on oath.
12.
Applications,
IA/2
and
IA/3,
are
accordingly
disposed of.
13.
The opposite parties no.1, 2 and 3 are directed to
file affidavits -- evidence as aforesaid within three
weeks.
List on 10.9.2014.
PRESIDENT
MEMBER
MEMBER

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