West Bengal

Birbhum

MA/16/2018

Sk.Obaidullah, S/o Lt Md kamru jamal - Complainant(s)

Versus

Proprietor, Neo Gen Diagnostics and Polyclinic Pvt Ltd - Opp.Party(s)

09 Feb 2018

ORDER

Both parties file hazira.

            Petition dated 31.01.2018 filed by the O.P No. 1 and 2 for permitting them to cross examine PW.1 complainant Sk. Obaidullah on dock is taken up for passing order treating the same as M.A No. 16/18.

            The complainant has contested the said application without filing any formal written objection.

            The complainant has filed the present case against the O.Ps for directing the O.Ps to pay Rs. 195000/- with interest and other reliefs.

            The O.P No. 1 and 2 have filed written version against the said complaint.

            The complainant has also filed evidence on affidavit.

            By filing the instant petition the O.P No. 1 and 2 prayed for permitting them to cross examination the PW1 Sk. Obaidullah on dock.

            It is the case of the O.P that after filing of evidence on affidavit by the complainant as PW1, the case was fixed for cross examination of PW.1. But now the complainant has raised objection to adopt procedure for cross examination on dock and prayed for adopting procedure of cross examination by filing questionnaires and reply.

            During hearing Ld. Advocate Agent of the O.P also submitted that (actual) fact is to be come out from the witness by examining him on dock by putting the questions to him directly.

            On the other hand if he submits reply in writing against the questions put to him in writing that would be made with consultation of his lawyer and that would not deliberate answer.

            In his reply Ld. Advocate/Agent of the complainant submitted that though this Forum has been adopting procedure for cross examination of the witness on dock to cut short the procedure but in view of the judgement passed in J.J. Merchant case by Hon’ble Supreme Court, said procedure is obsoleted and the witnesses are to be cross examined by submitting suggested question of cross examination and filing reply of the same by other side on affidavit.

            We find from the copy of the judgment passed by the Hon’ble Supreme Court, in Appeal (Civil No. 7975 of 2001) (Dr. J.J. Merchant =Vs.= Srinath Chaturvedi) that Hon’ble Apex Court has been pleased to hold that “in case where cross examination of the persons who have filed affidavits is necessary, suggested questions of cross examination be given to the person who have tendered their affidavits and reply may be also on affidavits.”

We further find that the Hon’ble Apex Court also has not been pleased to confirm the procedure of cross examination of the witness by examining him on dock.

            Rather Hon’ble Apex Court also has been pleased to observe that in cases where the commission deems it fit to cross examine the witness 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.

            During hearing Ld. Advocate/Agent of the O.Ps submitted that in a present case like medical negligence, examination of the witnesses on dock is very much necessary to find out truth. But we find that J.J. Merchant case is also related to medical negligence.

            Considering the overall matter into consideration and relying upon the ruling cited above we have no other alternative but to hold that the present petition for permitting the O.P to cross examine of the PW.1 is on dock liable to be rejected.

Hence,

Ordered

that the petition dated 31.01.2018 filed by the O.P No. 1 and 2 for permitting them to cross examine PW.1 complainant Sk. Obaidullah on dock is rejected on contest but without any cost.

Thus the M.A. is disposed of accordingly.