SAMIKSHA BHATTACHARYA,  MEMBER 

Today is fixed for passing necessary order in respect of IA/786/2023.

The instant  Interlocutory Application IA/786/2023 has been filed by Dr. Kingshuk Das  being the OP No. 2 praying for allowing the OP No. 2 to cross-examine Dr. Ajay Kumar Gupta as per suggested question attached with the Interlocutory Application.

We have gone through the Interlocutory Application and its objection filed by the complainant.

It is pertinent to mention here that another application being No. IA/173/2023  has already been filed by OP No. 1/Ruby General Hospital to cross-examine Dr. Ajay Kumar Gupta as per suggested questions. The said application filed  by  OP No. 1  has been allowed on contest  subject to deletion of Question Nos. 1, 2, 6, 14 and 15.

The OP No. 2 has filed the instant Interlocutory Application praying for examining  the Expert Dr. Ajay Gupta attached with the questions which are same as the questionnaire filed by OP No. 1. At the time of filing interlocutory application, the complainant has objected to put the Question Nos.  1, 2, 6, 14 and 15 since those questions are not  at all relevant in the instant case.   

Heard the Ld. Advocates of both sides. We  have also relied upon the judgment passed by  Hon’ble Supreme Court in case of J.J Merchant (Dr) vs. Srinath Chaturvedi [(2002) 6 SCC 635] where Hon’ble Apex Court has  held that “The Affidavits of the experts including the Doctors can be taken as  evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve  a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those  questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still a party intends to cross-examine  such Doctors or Experts, there can be video conferences or asking questions by arranging telephonic conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.

The report submitted by an expert does not go in evidence automatically. He is to be examined as a  witness in Court and has to face cross-examination.”

Considering the submission of both sides and relying upon the abovementioned judgment,  we think there is no  harm to put the questionnaire by OP No. 2  to the Expert namely, Ajay Kumar Gupta who has filed the Expert evidence supporting the  complainants, but subject to deletion of Question Nos. 1, 2, 6 14 and 15.

Accordingly, the Interlocutory Application being No. IA/786/2023 is allowed on  contest subject to deletion of above numbered questions.

The OP No. 2 is hereby permitted to put the questionnaire afresh to the Expert for the interest of justice.

Fix  29.02.2024 for filing questionnaire by OP No. 2 to the  Expert, Dr. Ajay Kumar Gupta.

Today is fixed for filing reply by Expert Doctor against questionnaire filed by OP No. 1. But no reply has been filed by Expert Doctor to that effect.

To date for filing reply by the Expert Dr. Ajay Kumar Gupta against the questionnaire filed   by OP No. 1.

MA/1040/2016 will be considered at the time of final hearing.