Dr. Swaroop Gopal (S) v. Goli Venkateshwar Rao (S).

Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short "the State Commission") in I.A. under Order XVI Rule (I) r/w Section 161 of CPC 1908 r/w Section 13 of Consumer Protection Act, 1986 of the Complainant seeking directions to cross examine Dr. Pramod Alagharu, a witness of Opposite Party No.1, Dr. Swarup Gopal, Opposite Party No.2 and Dr. N. K. Venkataramana, witness on behalf of Opposite Party No.3 and 4, whose affidavit has been submitted by the Opposite Party in support of their case. The ground given in the affidavit filed along with this application was that the Complainant wanted to test the veracity of the statement of the witnesses made in their respective affidavits, by cross examining them and that the same was essential to bring out the truth and to demonstrate the true facts. -3-

2. Objections to this application were filed by the Opposite Parties. The main contention was that the application was not maintainable both in law and facts, and defeats the very object of the Act which is expeditious disposal of the proceedings by way of summary proceedings.

3. Learned Counsel for the Appellant has argued that the impugned order is illegal for the reasons that it is contrary to the findings of this Forum in "Con Décor vs. Smritikana Ghose And Another, 2002 CTJ 692 (CP) (NCDRC), (para 16) and Dr. J. J. Merchant And Others vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (para 19)

and that the application was highly delayed filed after two years of the evidence led by Opposite Party No.2, namely, Dr. Swarup R. Gopal, the Appellant.

4. I have heard the arguments and perused the record produced before me. Learned Counsel for the Appellant has not placed on record the order sheets showing the stage of the case when the said application had been moved.

5. The brief facts of the case, however, are that a Complaint was filed by the Complainant claiming compensation for the death of his son alleging that he died due to medical negligence of Appellant as well as other opponents named in Complaint. He -4-

alleged deficiency in service on the part of the Opposite Parties. The facts as narrated in the Complaint show that the son of the Complainant was about 29 years of age and worked in HCL Company, Bangalore as Software Engineer since May 2005. On 22.12.2007, he developed headache and consulted the Appellant Dr. Swarup R. Gopal at his clinic, who after examining him, advised him to get the MRI scan. MRI scan was done and therefore, Opposite Party No.2, namely, Dr. Swarup R. Gopal was again consulted. He prescribed medicines and also advised admission of one day in hospital. It was also conveyed to him by the Appellant that the procedure involves drilling a small hole in the head for drawing out a sample for biopsy. It was also told that the small puncture would not cause any pain and it was to rule out the possibilities and that the headache experienced by the patient would be cured permanently. The Complainant further alleged in the Complaint that on receiving this information from his son, he met the Appellant in person and informed him that his son's marriage was scheduled to be

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performed on 10.02.2008 and requested for postponing the procedure for a later date after 10.02.2008, as his son's headache was not severe. It was also conveyed that his son was regularly attending to his work and that

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his headache had subsided. However, the Appellant Dr. Swarup R. Gopal insisted upon the procedure.

6. On the advice of Opposite Party No.2, namely, Dr. Swarup R. Gopal, the Appellant, his son was admitted in Manipal Hospital (Opposite Party No.1) on 26.12.2007 for biopsy. After the procedure done on 27.12.2007, he was allowed to see his son, he noticed that his son head was cut by 4" (four inches) and sutured which was contrary to the assurances given by the Opposite Party No.2, namely, Dr. Swarup R. Gopal. On enquiry as to why such major surgical procedure was done contrary to the assurances given, there was no proper explanation except that they could not locate the area for drawing samples for biopsy, hence, a small cut was given. The complainant and his family members could not realize the ramifications of the procedure done on 27.12.2007. It had been alleged by the Complainant that thereafter his son's condition started deteriorating and he gradually lost his eye sight, suffered partial paralysis, intermittent seizures and became bedridden and ultimately, succumbed to the complications on 08.02.2012. The surgical processes done on various dates, the complications suffered and other factual aspects leading to death -6-

of his son were recounted in detail in the Complaint. It was basically on this contention and other contentions as mentioned in the Complaint that the Complainant had sought cross examination of all the Opposite Parties.

7. It is apparent that though the impugned order is against al the Opposite Parties, it has been challenged only by Opposite Party No.2, Dr. Swarup R. Gopal, who was first consulted by the deceased and on whose advise, MRI was done and admission was taken in the Opposite Party No.1's hospital for extracting the tissues for test of biopsy from his head. It was in light of these facts that by the impugned order, the permission was granted to cross examine the Opposite Party No.2, Dr. Swarup R. Gopal as well as witness of other Opposite Parties to ascertain the truth of the matter.

8. There is no dispute to the fact that the examination of a witness includes his cross examination as well. There is also no dispute to the principle of law that object of the Act is to dispose of the matter summarily. However, Section 13 of the Act gives powers to the Consumer Forum, to exercise civil powers under CPC for examination of the witnesses that includes permitting the cross examination either in the court or through appointment of a

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Local Commissioner. The reliance has been placed on the findings in the case of Smritikana Ghose's case (supra). Para 16 of the said case is reproduced as under:

"16. We would, therefore, hold that cross-examination of a witness or a party before a forum under the Consumer Protection Act is not a rule. It is only an exception. When reputation of a person, like a medical practitioner in the case of alleged medical negligence is involved, he will have a right to cross-examine any person alleging professional negligence against him. When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination."

9. Even this Forum in Smritikana's case (supra) has acknowledged its powers to act as Civil Court and permit the cross examination of the witnesses. The only caution is that the same should not be done in routine manner. In that case, the Appeal was filed against the order of seeking permission to cross examine the Local Commissioner, a lawyer, which was, however, denied by

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making such observations. In the present case, the cross examination is sought of the Opposite Party No.2, Dr. Swarup R. Gopal, on whose advise, MRI was done and the patient was admitted. Reliance is also placed on para 19 of J.J. Merchant's case (supra) wherein the Hon'ble Supreme Court has held as under:

"19. It is true that it is the discretion of the Commission to examine the experts if required in appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. Only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4)(iii)]. It also empowers such Forums to issue any Commission for examination of any witness [under Section 13(4)(v)]. It is also to be stated that Rule 4 in

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Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the Court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. 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

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still party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephone 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."

10. In J.J. Merchant's case (supra), the findings given by Hon'ble Supreme Court in no way help the Appellant. The Hon'ble Supreme Court has clearly held that the Commission has same powers to examine a witness as conferred on Civil Courts under Order XVIII Rule 4 of Civil Procedure code, which includes power to examine a witness by affidavit and to cross-examine the witnesses in view of Section 13(4)(v) and Rule 4 of Order XVIII of C.P.C. and the Hon'ble Court rejected the argument that it would delay the disposal of proceedings by saying "Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses". The guidelines, which have been issued by the Hon'ble Supreme Court in J.J.Merchant's case (supra) are in respect of the facts of that case. The Hon'ble Court however has warned the Commission to exercise these powers in appropriate cases and not routinely. The discretion to exercise such powers by the Commissions certainly depends on the facts

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and circumstances of that particular case. Learned Counsel has failed to point out that in J.J. Merchant's case (supra), the Hon'ble Supreme Court has restricted the powers of the Commission only to examination in chief or examination of a witness through interrogatories. In the present case, the Complainant has sought cross examination of

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the party, in order to bring on record the truth. This cross-examination can be done either on oath before the Commission or through Local Commissioner so appointed by the Commission. I find no illegality or infirmity in the impugned order and there is no merit in the Appeal. The Appeal is dismissed with costs of Rs.10,000/-, which shall be deposited by the Appellant in Consumer Legal Aid Account within eight weeks from today.

......................J

DEEPA SHARMA

PRESIDING MEMBER

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