Order No  03, dated.: 11.01.2018.              

         Record is fixed today for passing order  in connection with the petition filed by the OP WBSEDL praying for cross-examining  the witness as because the complainant has filed examination-in-chief on affidavit.

      It may be pertinent to mention that this case has been remitted  back  on remand by the Hon’ble State Commission with a direction upon the parties to appear before the District Forum on 24.10.17 and on that ate the OP may file written version and the complainant  shall have  the opportunity to amend the petition of complaint to mention how he became a consumer under the WBSEDCL and thereafter  this Forum will proceed to dispose  of the case in accordance with law after acceptance of the evidence led by the parties.

         It appears that the Hon’ble State Commission  while disposing of the Appeal  has observed that before disposing of the complaint the previous Forum did not ask  or direct the complainant to file evidence in chief on affidavit in support of his case.Hon’be State Commission mentioned that in view of the decision reported in 2008 (1) CPR (NC) Mathura Mohan  Mitra Vs. Dr. Brindaban Roy and another and the provision u/sec 13(ii)(a)(b) of the Act, the District Forum  has proceed with the complaint wrongly without appreciating the evidence, as such the impugned order is not sustainable  in the eye of law.

         In this regard firstly we have to see the   provision u/sec 13(ii)(a)(b) of the Act. : The District Forum  shall, if the ( complaint admitted) by it under sec 12  relates to goods ion respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services –

1.  Refer a copy  of such complaint to the opposite party directing him to give his version of the case within  a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.
2. Where the OP  on receipt of the copy of the complaint referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits  or fails to take any action to represent his  case within the time given by the District Forum, the District Forum shall proceed to settle  the consumer dispute –

1. On the basis  of evidence brought to its notice by the complainant and the OP , where the OP denies or disputes  the allegations contained  in the complaint, or
2. (Ex parte on the basis  of evidence) brought to its notice by the complainant, where the OP omits  or fails to take any action to represent his case within the time given by the Forum.

(iii)    where the complaint fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss  the complaint for default or decide it on merits).

         In this case we also like to mention about the observation made by the Hon’ble National Commission in 2017(4)CPR 530 (NC) where it  has been stated that there can be no grounds to make any modification in award given by the State Commission in absence of any concrete evidence to the contrary.

        Generally, the cases of the Consumer Forum are disposed of in summary proceeding where there is no question of examining of witnesses on the dock. Filing of affidavit on chief and reply to that with the help of documents serves the necessary purpose. It has also been decided ion 2017(1) CPR 645 (NC)   where it has been observed as such:

Cross examination  of witnesses is a valuable right of a litigant which is only way to check  varacity and correctness  of evidence adduced by witnesses.—In cases where cross-examination  of persons who have filed affidavits is necessary, suggested questions of cross-examination be given to persons who have tendered their affidavits and reply may be also on affidavits. For avoiding delay in disposal of complaints within prescribed period, National commission  is required to take appropriate steps including :

1.  By exercise of Administrative Control, it can be seen that competent persons are appointed as members on all levels so that there may  not be any delay in composition  of the Forum or the Commission for want of Members.
2.  It would  oversee that time limit prescribed for filing defense version and disposal of complaints is strictly adhered to ;
3. It would see that complaint as well as defence version should be accompanied by documents and affidavits  upon which parties intend to rely,
4. In cases where cross-examination of the persons who have filed affidavits is necessary suggested questions of cross-examination be given to the persons who have tendered their affidavits and reply may be also on affidavits’
5. In cases where Commission deems it fit to cross-examine  the witnesses 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.

In this case we have seen that the complainant has filed affidavit-in-chief and copy of the same has been served upon the OP but OP did not file any reply to that

            Therefore, for ends of justice we direct that the OP shall also file responses  to the affidavit-in-chief  of the complainant on affidavit by 24.01.2018.

            The petition of the OP praying for cross-examining the witnesses on dock is thus rejected  in view of the aforesaid decisions of the Hon’ble  Supreme Court.

            To 24.01.18 for filing reply to the affidavit-in-chief of the complainant.

            M/A case be disposed of accordingly.