Tripura

StateCommission

A/1/2019

Shri. Pijush Kanti Dutta - Complainant(s)

Versus

Dr. Achintya Bhattacharya - Opp.Party(s)

Mr. Haradhan Sarkar

29 Mar 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

 

Case No.A.1.2019

 

1. Shri Pijush Kanti Dutta,

S/o Late Adhinath Dutta,

Resident of 43 Akhaura Road,

P.O. West Agartala, Sub-Division: Sadar,

District: West Tripura

                   … … … … Appellant/Complainant.

 

•  

 

1. Dr. Achintya Bhattacharya,

S/o Late Sushil R. Bhattacharya,

Resident of Ramnagar Road No.5,

C/o Teresa Diagnostic Centre,

7 - Hospital Road, P.O. Agartala - 799001,

P.S. West Agartala, District - West Tripura, Developer.

 

2. Mrs. Lili Sen,

W/o Shri Ashish Sen,

Resident of Pragati Road, (Near Ice Factory),

P.O. Agartala - 799001, P.S. East Agartala,

District: West Tripura, Developer.

… … … … … Respondent/Opposite Parties.

 

 

Present

 

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

 

 

For the Appellant:                                         Mr. Haradhan Sarkar, Adv.

For the Respondents:                                    Mr. Kanu Lal Das, Adv.

Date of Hearing and Delivery of Judgment: 29.03.2019.

J U D G M E N T [O R A L]

 

U.B. Saha,J,

The instant appeal is filed by the appellant, Shri Pijush Kanti Dutta (hereinafter referred to as complainant) against the order dated 17.12.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C.135 of 2017 whereby and whereunder the learned District Forum allowed the prayer of the respondents (hereinafter referred to as opposite parties) to re-examine the opposite party no.1, Dr. Achintya Bhattacharya, the respondent no.1 herein, for the purpose of getting clarification on two points/matters i.e. point no. (i) and (ii) at Para-3 of its petition dated 03.10.2018.

The point no. (i) and (ii) of Para-3 of the petition of the opposite parties dated 03.10.2018 are as follows:-

“(i) I entered into an Agreement with the Teressa Diagnostic” (ii) but it was not completed after 38 months.”

2. Heard Mr. Haradhan Sarkar, Ld. Counsel appearing for the appellant-complainant as well as Mr. Kanu Lal Das, Ld. Counsel appearing on behalf of the respondent-opposite parties.
3. Brief facts needed to be discussed are as follows:-

The complainant, Shri Pijush Kanti Dutta filed one petition under Section 12 of the Consumer Protection Act, 1986 against the respondent-opposite parties which was registered by the learned District Forum as C.C.135 of 2017. After taking evidence of respondent-opposite party no.1 as O.P.W.1, he filed one application for correction of some bona fide typing mistakes in his evidence on the date of argument. Such prayer was objected by the appellant-complainant. After hearing the parties, the learned District Forum passed the impugned order/judgment against which the present appeal is preferred.

4.  Mr. Sarkar, Ld. Counsel appearing for the appellant-complainant while urging for setting aside the impugned judgment would contend that the learned District Forum has no such power to recall a witness to re-examine particularly, in cross. He has also submitted that if such order is allowed to be continued and the O.P.W.1 is allowed to be re-examined, then the complainant will be prejudice. He has finally contended that the learned Distinct Forum failed to consider the judgment of the Hon’ble Apex Court in State of Maharashtra Vs. Ramdas Srinibas Nayak & Another AIR 1982 AIR 1249, 1983 SCR (1) 8.
5. On the other hand, Mr. Das, Ld. Counsel relying upon the provisions of Section 13(4)(i) as well as provisions of regulations 26 (1) of the Consumer Protection Regulations, 2005 urges that  the learned District Forum did not commit any error. In support of his contention he has relied upon the Order 18 Rule 17 of Civil Procedure Code wherein it is stated that a Court has the power to recall all witnesses for re-examination in the interest of justice, if it is found that the application is a bona fide one. In support of his contention, he has relied upon on two judgments of the Hon’ble Apex Court i.e. in the case of K.K. Velusamy Vs N. Palaanisamy (2011) 11 SCC 275 and in the case of Vadiraj Naggappa Vernekar (D) Through LRS Vs Sharad Chand Prabhakar Gogate AIR 2009 SC 1604.
6. We have gone through the application filed by the respondent-opposite parties i.e. by the opposite party no.1 dated 03.10.2018 before the learned District Forum as well as the impugned judgment. Upon going through the aforesaid application and the impugned judgment, we are of the considered opinion that though in the Consumer Protection Act, 1986 there is no specific provisions for recalling of a witness in the interest of justice, but a Consumer Court has given power under Section 13 (4) (i) of the Consumer Protection Act that a Consumer Court 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” meaning thereby, a Consumer Court can also exercise the power as mentioned in the Civil Procedure Code like Order 18 Rule 17 and Section 151 of CPC. In the instant case, respondent-opposite party no.1 in his application dated 03.10.2018 pointed out some wrong recordings of the evidence and prayed for correction of the said recordings of evidence, particularly, in cross. The learned District Forum after hearing the parties and going through the application of the respondent-opposite party no.1 and the objection filed by the appellant-complainant passed the impugned judgment which is, according to us, a reasonable one.
7. We have also gone through the judgment relied upon by Mr. Sarkar, Ld. Counsel appearing for the appellant-complainant i.e. in the case of State of Maharashtra Vs. Ramdas Srinibas Nayak & Another (supra). The fact of the aforesaid case is totally different, than the case in hand. Thus the said judgment has no application in the instant case. However, we are of the view that a witness may be examined by a party recalling him to prove something which either wrongly recorded or inadvertently recorded, but a witness cannot be examined either for filling-up the lacuna or for developing his case. In the instant case, the learned District Forum did not allow the application of the respondent-opposite party no.1 fully, rather it partly allowed only to clarification of certain points i.e. point no. (i) and (ii) of Paragraph-3 of the petition dated 03.10.2018. Thus according to us, the learned District Forum did not commit any wrong and more so, when the O.P.W.1 i.e. the respondent-opposite party no.1 will be re-examined, the appellant-complainant will get an opportunity to cross-examine him. Thus the appellant-complainant is in no way prejudice by the impugned order. We make it clear, when the learned District Forum will re-examine the O.P.W.1 i.e. the respondent-opposite party no.1, then the learned District Forum should not allow the opposite party no.1 to adduce any new evidence except the clarification of point no. (i) and (ii) of Paragraph-3 of the application dated 03.10.2018.

In view of the above, the appeal is dismissed being devoid of merit. No order as to costs.

Send down the records to the learned District Forum, West Tripura, Agartala.