West Bengal

StateCommission

RP/6/2018

Kanti Gopal Dutta - Complainant(s)

Versus

Dr. Dilip Pal - Opp.Party(s)

Mr. Monigopal Chakraborty

28 Jun 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
11A, Mirza Ghalib Street, Kolkata - 700087
 
Revision Petition No. RP/6/2018
( Date of Filing : 15 Jan 2018 )
(Arisen out of Order Dated 22/11/2017 in Case No. Complaint Case No. CC/26/2016 of District Paschim Midnapore)
 
1. Kanti Gopal Dutta
S/o Joydeb Dutta, Dangra, P.O. & P.S. - Pingla, Dist. Paschim Medinipore, Pin - 721 140.
2. Minor Krishna Gopal Dutta
Rep. by his natural guardian father, Kanti Gopal Dutta, Dangra, P.O. & P.S. - Pingla, Dist. Paschim Medinipore, Pin - 721 140.
...........Appellant(s)
Versus
1. Dr. Dilip Pal
C/o Dreamland Nursing Home, Hariharpur, P.O.- Balichak, P.S. - Debra, Dist. Paschim Medinipur, Pin - 721 124.
2. Arabinda Maity, Owner, Dreamland Nursing Home
Hariharpur, P.O.- Balichak, P.S. - Debra, Dist. Paschim Medinipur, Pin - 721 124.
...........Respondent(s)
 
BEFORE: 
 HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER
 
For the Petitioner:Mr. Monigopal Chakraborty, Advocate
For the Respondent: Binota Roy,Soumak bera, Advocate
Dated : 28 Jun 2018
Final Order / Judgement

 

          The instant revision petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainants to assail the Order No. 32 dated 22nd November, 2017 passed by the District Consumer Disputes Redressal Forum, Paschim Medinipur (in short ‘Ld. District Forum’) in Consumer Complaint No. 26 of 2016. By the impugned order, the Ld. District Forum rejected the prayer of the complainants for admission of photocopy of Enquiry Report conducted by Enquiry Committee, (CMOH).

          The revisionists/petitioners herein being complainants lodged the complaint under Section 12 of the Act before the Ld. District Forum on the allegation of medical negligence against the opposite parties resulting in premature death of wife and mother respectively of the complainants in a Nursing Home at Hariharpur, P.O.- Ballychak, P.S.- Debra, Dist.- Paschim Medinipur on 22.08.2014 with prayer for following reliefs, viz.- (a) a direction upon the opposite parties i.e. Doctor who treated the victim and the owner of the Nursing Home where the victim succumbed to death, to pay compensation to the tune of Rs. 19,00,000/- due to deficiency in services; (b) to pay Rs. 25,000/- as litigation cost etc.

          After entered appearance, the opposite parties are contesting the case.

          The impugned order runs as follows-

         “Order No. 32

           Date: 22.11.2017

          Parties filed haziras. Complainant files two petitions along with documents prayed for admitting his documents in evidence. Copy  served and objected to. Perused the petitions. Heard both sides. Considered. Complainant’s prayer for admitting one photocopy of  Enquiry Report dated 17.02.2015 in the evidence is rejected and the prayer for admission of two certified copies of FIR and Charge-sheet in evidence is allowed. Accordingly, those certified copies are marked as 2 and 3 respectively. Evidence of the complainant is closed.

          Fix 13.12.2017 for evidence of the opposite party”.

          In this regard, it would be worthwhile to record that the revisional jurisdiction of State Commission flows from Section 17(1)(b) of the Act which provides:

          “(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity”.

          The impugned order speaks that the Ld. District Forum allowed two documents i.e. copies of FIR and Charge-sheet as those two documents were certified copies but rightly rejected photocopy of Enquiry Report of CMOH because it is well-settled that best evidence must always be given. The complainants/revisionists in the revision petition, however, have categorically stated that the original copy of Enquiry Report prepared by Enquiry Committee (CMOH) is attached with the Charge-sheet in Debra P.S. Case No. 219 of 2014 dated 28.05.2014.

          There is no gainsaying that the Act is a legislation for social benefit meant to protect the interests of consumers and therefore, in order to achieve the objective and purpose of the legislation if the Ld. District Forum is found that the said copy of report dated 17.02.2015 prepared by Enquiry Committee are part of Charge-sheet, the Ld. District Forum may consider the same at the time of final hearing of the case. However, if it is not available, the complainant may obtain an authenticate copy of the same and to place it before the Ld. District Forum for consideration.

          In that perspective, I find no jurisdictional or legal error or mis-representation of facts has been done which calls for interference in the exercise of powers under Section 17(1)(b) of the Act. In other words, the order of the Ld. District Forum does not call for any interference or does it suffers from infirmity or irregular exercise of jurisdiction or material irregularity.

          Parting with the case, it has come to my notice that the instant complaint is pending before the Ld. District Forum since 03.03.2016 and till now already 32 dates have elapsed but the matter has not yet ripened for final hearing. Perhaps, this has happened due to non-exercise of actual procedure as enunciated by a Three-Judge Bench of Hon’ble Supreme Court reported in (2002) 6 SCC 635; (2002) 5 Supreme 337 [Dr. J. J. Merchant & Ors. – vs. – Shrinath Chaturvedi]. The said decision dealt with different aspects of the Act and while dealing with the issue, the Hon’ble Apex Court in Paragraph-37 (d) of the said decision has observed-

          “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”.

          The Hon’ble Supreme Court in Paragraph 37 (e) of the said decision has further observed-

          “In cases where Commission deems it fit to cross-examine the witnesses in person, video conference or telephone 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”.

          Therefore, the dictum of Three-Judge Bench of the Hon’ble Supreme Court in the case of Dr. J. J. Merchant & Ors. (supra) makes it abundantly clear that unless exceptional situation arises, a person tendered evidence through affidavit will be cross-examined through suggested questions in the form of questionnaire. If the Fora constituted under the Act on the application of either of the parties thinks it fit may allow cross-examination of the witness through a Commission but in no circumstances there is any scope under the scheme of the Act to permit cross-examination of a witness on dock.

          With the above observations, the instant revision petition stands disposed of.

          The Registrar of the Commission is directed to send a copy of the order to all the District Forums of the State for information for strict compliance with the observation of the Hon’ble Supreme Court in the case of [Dr. J. J. Merchant & Ors. – vs. – Shrinath Chaturvedi] reported in (2002) 6 SCC 635 in recording evidence.

 
 
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY]
PRESIDING MEMBER

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