Karnataka

StateCommission

A/1244/2022

Medical Director, Chinmaya Mission Hospital - Complainant(s)

Versus

R. Govindan - Opp.Party(s)

George Joseph

11 Jul 2022

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 11^TH DAY OF JULY 2022

 

PRESENT

 

SRI. RAVI SHANKAR                         : JUDICIAL MEMBER

SMT. SUNITA C. BAGEWADI              : MEMBER

 

Appeal No. 1244/2022

 

The Medical Director Chinmaya Mission Hospital Chinmaya Mission Hospital Road Opp. to Krishna Temple Defence Colony, Indiranagar Bengaluru 560 038   (By M/s. Dua Associates) V/s	….Appellant
R. Govindan S/o. Late V. Ramu R/at NO.19, 2nd Cross Saraswathipuram, Jogupalya Ulsoor, Bengaluru 560 007	..…Respondent

O R D E R

 

BY SRI RAVISHANKAR, JUDICIAL MEMBER

The OP in C.C.No.1247/2010 preferred this appeal against the order made by I Additional District Consumer Disputes Redressal Commission for cross examination of this appellant and submits that the complainant initially filed complaint alleging medical negligence in the year 2010 before the District Commission vide C.C.No.1247/2010 which was dismissed at the time of admission itself.  Subsequently, the complainant approached this Commission by preferring appeal vide Appeal No.4432/2010 and matter remanded back to the District Commission to adjudicate the matter on merits by providing opportunity to adduce evidence of both the parties.  Accordingly, District Commission restored the complaint and both parties have filed affidavit on their pleadings.  After that this OP also filed affidavit for which the District Commission posted the case for cross examination of the OP.  Since the said cross examination is not required in the summary proceedings as contemplated by Consumer Protection Act, hence, prays to set aside the order made by District Commission for cross examination of the OP.

2. The Learned Advocate for appellant relied upon certain decisions passed by Apex Court reported in (2002) 6 Supreme Court Cases 635 in the case of Dr. J.J. Merchant and others, reported in (2019) 2 Supreme Court Cases 282 passed in S.K. Jhunjhunwala Vs. Dhanwanti Kaur & anr., National Consumer Disputes Redressal Commission reported in 2002 SCC OnLine NCDRC 20 in the case of Con De’cor Rep. by its Managing Partner Vs. Smritikana Ghose & Anr., 2002 and submits that the cross examination of the Doctor is not required for adjudication of the dispute in hand. The appellant further relied on judgement of Hon’ble Supreme Court reported in C.P. Sreekumar (Dr.), MS (ORTHO) Vs. S. Ramanujam [(2009) 7 SCC 130] wherein it is categorically held that “the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence”.  In the decision passed by National Consumer Disputes Redressal Commission in Con De’cor Rep. by Managing Partner Vs. Smt. Smritikana Ghose and Anr. {2002 CTJ 692 (CP) (NCDRC)] wherein it is held that cross-examination of a witness during the trial of a Consumer Complaint is not a rule but an exception and can be permitted only where there is a question of reputation of person like a medical practitioner in cases of alleged medical negligence cases.  Hence, submits to set aside the order for cross examination and proceed to hear arguments of both side and dispose the matter in accordance with provisions of Consumer Protection Act.
3. Heard from appellant.  On perusal of the order sheet and memorandum of appeal we notice that after remand the District Commission has issued notice to both parties and provided an opportunity to lead evidence on their side.  Accordingly, complainant had filed his affidavit on 07.04.2022, there afterwards District Commission posted for evidence of OP on 28.04.2022.  Anyhow on 30.05.2022 on the side of OP Dr. Sudhir filed affidavit and marked documents as Ex.R1 to R4 and after that District Commission posted the case for cross examination of the said Dr.Sudhir whereas the appellant submits there is no provision in the Consumer Protection Act to automatically post the matter for cross examination of the parties and relied on above said decisions.
4. On going through the provision of Consumer Protection Act which is very much clear that the complaints has to be disposed summarily by accepting the affidavit on the side of both the parties we are of the opinion that if the District Commission founds the said evidence not sufficient and cross examination is required particularly in medical negligence cases, upon the application of the parties the District Commission can call for cross examination of the parties.  Whereas the District Commission without mentioning any reasons for cross examination of the parties automatically posted the matter for cross examination, which is not acceptable.  At the first instance the District Commission would have provided an opportunity to serve interrogatories on the part of OP to receive answers by way of affidavit, if at all the District Commission finds the answers to the interrogatories as not sufficient then only they can sought for cross examination of the parties.  Hence, we agree argument submitted by Learned Advocate for appellant and we direct the District Commission below to provide an opportunity to complainant to serve interrogatories instead of cross examination of the parties.  By that the court can save time and also the OP can serve the public at large during that time.  Accordingly, the appeal is allowed and the order for cross examination dated 30.05.2022 is hereby set aside and directed the complainant to provide interrogatories and receive answers from OP.  Further directed District Commission to dispose of the matter expeditiously after hearing.

 

MEMBER                                   JUDICIAL MEMBER

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