18.03.2016

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            This Revision u/s 17(1)(b) of the Consumer Protection Act, 1986 has been preferred by the OP No. 2-Doctor assailing the Order No. 57 dt. 7.5.2015 passed by the Ld. District Consumer Disputes Rederssal Forum, Burdwan in Consumer Complaint No. 160/2011, rejecting the petition, by the Revisionist with prayer for discarding the opinion of expert appointed by the Ld. District Forum at the instance of the Complainant and also for seeking expert-opinion from AIIMS, Delhi and Medical Council of India (MCI), showing the reason that the expert-Doctors concerned have been cross-examined through the exchange of interrogatories and replies thereto and the petition concerned for seeking opinion from AIIMS and MCI being not in proper form.

          Facts of the case are, in short, that the Revisionist/OP-Doctor after cross-examining the expert-Doctors through exchange of interrogatories and replies thereto noticed that the replies by the concerned Doctors of expert-report, as was ordered by the Ld. District Forum at the instance of the OP No. 1/Complainant, to the questionnaires were ambiguous and hence, not helpful in adjudication of the medical negligence in question.  Noticing such alleged ambiguity in replies by the expert-Doctors concerned in expert-report the Revisionist/OP No. 2-Doctor prayed for discarding the said expert-report and also for seeking opinion of AIIMS, Delhi and MCI.  Such prayer was rejected by the Ld. District Forum by its order impugned.  Hence, the Revision Petition by the OP No. 2-Doctor.

          The Ld. Advocate for the Revisionist/OP No. 2 submits that in course of cross-examination of the Doctor concerned with the expert-report through exchange of interrogatories, the replies thereto filed by the Doctors concerned with the expert-report were ‘contradictory’ and ‘inconclusive’ and hence, the Ld. District Forum should have discarded the expert-report in question and sought expert-opinion from AIIMS and MCI.

          The Ld. Advocate further submits that the Ld. District Forum committed both material irregularity and illegality in rejecting the petition of the Revisionist/OP No. 2-Doctor with the aforesaid prayer.

          The ld. Advocate finally submits that in view of the aforesaid submission the instant Revision should be allowed and the impugned order be set aside.

          On the other hand, the Ld. Advocate for the Respondent Nos. 4 to 7/OP Nos. 4 to 6 filing BNA submits, among others, that the Revisionist/OP No. 2-Doctor did not file any written objection at the time of filing the expert-report in question, thereby indicating the acceptance of the same by the Revisionist/OP No.2-Doctor.

          The Ld. Advocate further submits that after cross-examination of the Doctors concerned with the expert-report by means of exchange of interrogatories and replies thereto when the Revisionist/OP No. 2-Doctor ‘found himself hooked by the answers of the experts’, then the Revisionist/OP No. 2-Doctor prayed for discarding the expert-report in question and also for further expert-report from AIIMS, Delhi and MCI only to delay the case which is against the object of the Consumer Protection Act, 1986 being expeditious disposal of the Consumer Case.

          The Ld. Advocate also submits that the Revisionist/OP No. 2-Doctor would get opportunity to advance his argument as to the said expert-report at the time of final hearing of the case in view of the settled principle that whether such expert-report could be accepted or not lies within the domain and discretion of the Fora concerned.

          The Ld. Advocate finally submits that in view of the aforesaid submission and settled principle the instant Revision should be dismissed and the impugned order be affirmed.

          None appeared on behalf of the Respondent Nos. 1 to 3 despite due service of Notices as evident from the Order No. 4 dt. 28.9.2015 of this Commission.

          We have heard both the sides present, considered their respective submission and perused the materials on records.

          Materials on records reveal that no written objection to the medical expert-report in question was filed by the Revisionist/OP No. 2-Doctor at the time of filing the same.  Rather, the Revisionist/OP No. 2-Doctor proceeded with the cross-examination of the Doctors concerned with the medical report in question by means of exchange of interrogatories and replies thereto and when the replies by the concerned Doctors of the expert-report to the questionnaires put up by the Revisionist/OP No. 2-Doctor appeared to be not in consonance with the expectation of the Revisionist/OP No. 2-Doctor, only then the Revisionist/OP No. 2-Doctor filed the petition before the Ld. District Forum with prayer for discarding the expert-report in question and also for seeking expert-opinion from AIIMS, Delhi and MCI.

          It is well-settled that the Fora are not bound by the expert-report, which is advisory in nature, as was held by the Hon’ble Supreme Court in Malay Kr. Ganguly Vs. Dr. Sukumar Mukherjee, reported in (2009) 9 SCC 221.  Further, the Fora have powers to derive their own conclusion upon considering the opinion of experts with reference to the documentary evidence available on records.  Also, the Revisionist/OP No. 2-Doctor has scope to raise  objection to the expert-report at the time of final hearing of the case.  Hence, the Revisionist/OP No. 2-Doctor does not appear to have been prejudiced by the order impugned.    In this view of the case we find no cogent ground to interfere with the order impugned. 

          In the result, the Revision Petition is dismissed.  The impugned order is affirmed. 

          All the parties are directed to appear before the Ld. District Forum concerned on 11.4.2016.