This appeal is directed against the order dated 25.02.2008 passed by Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (for short, ‘the State Commission’) in O. P. No. 165 of 1998, thereby dismissing the complaint filed by the appellant alleging medical negligence and deficiency in service in the treatment of complainant at the time of delivery of a baby on 15.10.1994. The precise allegation of deficiency in service and negligence was that the opposite party No. 2-Gynecologist had delayed the cesarean section delivery for about two hours despite there being the foetus distress and the said delay in cesarean delivery resulted in cerebral palsy of the baby. Opposite parties denied the allegations of medical negligence and deficiency in service. In order to establish her case, -3- the complainant produced the affidavit of one Dr. Rajendra Kumar, who supported the case of the complainant in regard to the above allegation of deficiency in service and negligence. However, the said doctor was not produced for the purpose of cross examination as was sought for by the opposite parties and for that reason the State Commission had discarded his affidavit altogether. Even otherwise, the State Commission found that the complainant had failed to establish any medical negligence or deficiency in service on the part of respondent-doctor and the hospital. 2. The appeal came up for first ever hearing on 9.7.2008 when this Commission made the following order:- “Seeing the impugned order, it appears that the order of the State Commission would not be easily assailed as one of the witnesses absented as is apparent from para 25 which reads as under:- “One Dr. Rajendra Kumar of Dharmapuri was sought to be brought as a further witness. His proof affidavit went beyond the case of the complainant. The opposite parties sought to cross examine him. However, he did not present himself for cross examination and in such a situation we struck off his proof affidavit” It is submitted that the appellant would be helpless to prove the case when the witness did not turn up for the purpose of cross examination. He submitted that he may be permitted to summon him to remain present for the purpose of cross examination. On moving an application, let a notice be issued to the witness at the address -4- mentioned in the application to show cause why he should not remain present at his own expenses as and when the date is fixed for the purpose of his cross examination. Ld. counsel also submits that he may be permitted to move an appropriate application to file expert evidence in support of this case. Let the said application be filed. As prayed, the matter is adjourned to 17.09.2008.” After a gap of about two years, Registry has listed this appeal in the category of direction matters today because the appellant was not taking proper and timely steps to realize the order dated 9.7.2008 passed by this Commission in regard to securing the presence of Dr. Rajendra Kumar for the purpose of cross examination. 3. Mr. V. Prabhakar, learned counsel appearing for the appellant states that the appellant took dasti processes though after some delay for effecting service on Dr. Rajendra Kumar but the witness refused to accept the processes and, therefore, the processes were sent to him under registered cover and certificate of posting, proof of which has been filed on record. He has also invited our attention to misc. application (unnumbered) which he had filed on 25.08.2008 praying for making reference to an expert body of All India Institute of Medical Sciences in order to obtain their opinion in the matter. It appears that the said application was not pressed by the counsel for -5- the appellant and that is why, it was not taken up for consideration. Mr. V. Prabhakar, learned counsel for the appellant states that if this Commission is inclined to secure the presence of Dr. Rajendra Kumar for the purpose of cross examination by the opposite parties, he will not press the said application for making reference to a body of medical expert. 4. Having considered the matter and the submissions made by the counsel for the parties, we are of the view that the presence of Dr. Rajendra Kumar, whose affidavit was filed on record before the State Commission should be secured for the purpose of cross examination by issuing coercive processes as the said doctor has refused to accept the ordinary processes and honour the same. Since the doctor is Tamil Nadu based, it would be expedient if instead of calling him to appear before this Commission, he is asked to appear in the State Commission for the purpose of his cross examination. This would require remand of the matter to the State Commission for deciding the complaint keeping in view the evidence, cross examination of the above named witness and the oral and documentary evidence already produced on record. However, if for -6- any reason, the State Commission is unable to secure the presence of of Dr. Rajendra Kumar for the purpose of cross examination at the hands of the opposite parties, it would be open for the State Commission to seek the opinion of any other expert/body of independent medical experts from a government hospital. With these observations, the appeal is partly allowed and the impugned order is set aside and the complaint is remitted back to the State Commission to decide the same taking into account the cross examination of the above named witness and the material already existing brought on record. No order as to costs in these proceedings. The parties are directed to appear before the State Commission on 22.10.2010 for receiving further directions in the matter. The State Commission is requested to decide the complaint expeditiously in any case within six months form the date of appearance of the parties before it.