Haryana

StateCommission

RP/50/2016

AJAY SOOD - Complainant(s)

Versus

ALCHEMIST HOSPITAL - Opp.Party(s)

VARUN CHAWLA

19 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Revision Petition No: 50 of 2016

Date of Institution:     15.06.2016

Date of Decision :      19.09.2016

 

1.     Ajay Sood s/o Sh. Achhra Dass Sud, Resident of House No.406, Sector-15, Panchkula.

2.     Anurita Sethi d/o Sh. Achhra Sud and wife of Sh. Rajiv Sethi, Resident of Australia Sydney, through authorised representative Sh. Ajay Sood s/o Sh. Achhra Dass Sud, Resident of House No.406, Sector 15, Panchkula.

                                      Petitioners-Complainants

Versus

1.      Alchemist Hospital, Sector 21, Panchkula through its Managing Director.

2.      Dr. S.P. Kaushik, Alchemist Hospital, Sector-21, Panchkula.

3.      Dr. Mudit Kumar, Alchemist Hospital, Sector-21, Panchkula.

4.      New India Assurance Company Limited, Hemkunt Chambers, 89 Nehru Place, New Delhi.

                                      Respondents-Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Rajneesh Malhotra, Advocate for petitioners.

                             Shri Nitin Sood, Advocate for respondent No.1.

                             Shri Vivek Sethi, Advocate for respondent No.3.

                             Service of respondents No.2 & 4 dispensed with.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

Ajay Sood and another-complainants, have come up in revision against the order dated May 4^th, 2016, passed by District Consumer Disputes Redressal Forum, Panchkula (for short ‘the District Forum’), vide which the application filed by the petitioners-complainants seeking permission to cross-examine Dr. Mudit Kumar-respondent No.3/Opposite Party No.3, was dismissed.

 

2.                The petitioners-complainants filed complaint under Section 12 of the Consumer Protection Act, 1986 (for short ‘the Act’) alleging medical negligence and deficiency in service on the part of the respondents-opposite parties while treating Achhra Dass Sud-since deceased.

3.                The Opposite Parties contested the complaint while denying the allegations of the complainants.

4.                During the course of evidence by the opposite parties, the complainants filed application for cross-examination of the opposite party No.3 – Dr. Mudit Kumar. The District Forum dismissed the application vide impugned order. 

5.                Heard. Not permitting the petitioners to cross-examine respondent No.3/Opposite Party No.3 on his appearing as a witness would amount to curtailing the right of the complainants to prove their case, as provided in Section 13 (4) of the Consumer Protection Act, 1986, which reads as under:-

“13 (4)   For the purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:—

(i)  the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii)     the reception of evidence on affidavits;

(iv)    the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness, and

(vi)    any other matter which may be prescribed.” 

 

6.                A plain reading of the aforesaid Section makes it clear that the Consumer Forum is empowered to exercise the powers vested in Civil Court. 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(s) by the party who calls him for evidence. It also provides that witness can be examined by the Court or the Commissioner appointed by it.

7.                The instant case is based upon the negligence of the doctors in giving treatment to Achhra Dass Sud (since deceased). Whether there was negligence or not on the part of the respondents, would depend upon facts alleged and in such a case cross-examination of Dr. Mudit Kumar-respondent No.3, that is, the treating doctor, is necessary because the same would be helpful to reach to a right conclusion by the Consumer Forum. The District Forum fell in error while declining the prayer of the complainants to cross-examine Dr. Mudit Kumar-respondent No.3.

5.                In view of the above, the revision petition is allowed, the impugned order is set aside. The petitioners are permitted to cross-examine Dr. Mudit Kumar-respondent No.3.

9.                The next date of hearing before the District Forum is 29^th September, 2016.  The parties are directed to appear before the District Forum on the date fixed.

 

Announced 19.09.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL