Allowed

Dr Sridevi v. the Chancellor &Managing

Madras HC15 Jul 2014CRP/1606/2014

Case brief

AI extract

What is this about?

The High Court allowed a civil revision petition. The petitioner sought cross-examination of a doctor respondent in a medical negligence case. The Commission barred it by directing a questionnaire response instead. The Court found the Commission's order unsustainable and allowed cross-examination.

What did the court decide?

The Civil Revision Petition is allowed; the petitioner is entitled to cross-examine the second respondent before the Commission.

Dr Sridevi Vs the Chancellor &Managing — Consumer Protection | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.07.2014

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CORAM :

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THE HONOURABLE MS.JUSTICE R.MALA

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C.R.P(PD).No.1606 of 2014 and M.P.No.1 of 2014

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Dr.Sridevi .. Petitioner

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Vs.

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1.The Chancellor and Managing Director Sri Ramachandra Medical College and Research Institute, Porur Chennai-600 116.

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2.Dr.Balakrishnan .. Respondents

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Prayer :- Civil Revision Petition is filed under Article 227 of Constitution of India, against the order passed in C.M.P.Sr.No.321 of 2013 dated 20.06.2013 and the docket order dated 01.03.2013 in C.C.No.51 of 2010 on the file of the State Consumer Disputes Redressal Commission, Chennai and direct the third respondent to permit the petitioner to cross-examine the 2^nd respondent as a witness.

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For Petitioner : Mr.Giridhar and Sai

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For R1 : Mr.Sathish Parasaran R2 : No appearance

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O R D E R

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The Civil Revision Petition is filed against the order passed in C.M.P.Sr.No.321 of 2013 dated 20.06.2013 and the docket order dated 01.03.2013 in C.C.No.51 of 2010 and direct the third respondent to permit the petitioner to cross-examine the 2^nd respondent as a witness – C.W.1.

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2.The revision petitioner herein as a complainant preferred a complaint against the respondents herein for claiming damages for medical negligence caused by them. The petitioner's side evidence was completed and the matter was posted for respondent's side evidence and C.W.1/Dr.Balakrishnan filed his proof affidavit. At that time, the revision petitioner has preferred a petition in C.M.P.No.81 of 2012 for permitting the complainant/revision petitioner to crossexamine the 2^nd opposite party/C.W.1/second respondent herein and that was allowed on 25.07.2012. On 01.03.2013, the Commission has passed the following order:

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“For cross examination of O.P.2.

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Both sides counsel present. Witness not present.

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Complainant is directed to serve the questionnaire to OP2. For filing reply for the questionnaire, post on 28.03.2013.”

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Immediately, the revision petitioner filed C.M.P.Sr.No.321 of 2013 for issuing direction to the 2^nd opposite party to appear for crossexamination in compliance with the order passed on 25.07.2012 in C.M.P.No.81 of 2012. On 20.06.2013, the Commission has passed the following docket order:

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“Both present. Heard. Finding no merit in this petition, the petition is rejected. “

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Aggrieved over the same, the revision petitioner has preferred this revision petition.

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3.Learned counsel for the revision petitioner submitted that once the matter was posted for cross-examination of C.W.1/2^nd opposite party, without any reason, the complainant/revision petitioner was directed to furnish questionnaire to the 2^nd opposite party, which was questioned by the revision petitioner by way of filing C.M.P.Sr.No.321 of 2013 issuing direction to the 2^nd opposite

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party to appear for cross-examination before the Commission and permitting her to cross-examine the witness. The Commission, without any rhyme or reason, rejected the same. Hence, he prayed for allowing of this revision petition.

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4.Resisting the same, learned counsel for the first respondent has raised the following points:

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(i) The prayer sought for in this revision petition itself is not maintainable, since the revision petitioner has filed C.M.P.Sr.No.321 of 2013 for directing the 2^nd opposite party to appear for crossexamination, the revision petitioner never sought to challenge the docket order dated 01.03.2013. Further, the revision petitioner has not preferred revision against the order dated 01.03.2013, in which, he was directed to furnish questionnaire to the 2^nd opposite party.

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(ii) To substantiate his arguments, he has relied upon the Apex Court judgment reported in 2002 (6) SCC 635 (Dr.J.J.Merchant and others v. Shrinath Chaturvedi) and in para-37(d), it was specifically stated as follows:

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“(d) In cases where cross-examination of the persons who have filed affidavits is necessary, suggested questions of cross-examination be given

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to the persons who have tendered their affidavits and reply may be also on affidavits. ”

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(iii)He further submitted that the revision petitioner also sought for time to file the questionnaire, but without furnishing the same, she has come forward with this revision petition, so she estopped from questioning the same.

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(iv) He relied upon yet another order in Original Petition No.233 of 1996 (Smt.Indirani Bhattacharjee v. CMO Prakka Super Thermal Power and others), wherein the National Consumer Disputes Redressal Commissioner, New Delhi has passed the following order:

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“Henceforth in all matters wherever there is a prayer for cross-examination of the witnesses by the learned advocates for the parties, learned advocates to produce the interrogatories on record and those interrogatories should be replied by the concerned parties on affidavit. Thereafter, the Commissioner would decide whether any further cross-examination on any point is necessary or not.

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The State Commissions as well as District Forums instead of recording the cross-examination

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may follow the practice of asking the parties to give interrogatories and thereafter reply of interrogatories on affidavits should be taken on record first instead of permitting the lengthy crossexamination.”

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Therefore, he prayed for dismissal of the revision petition.

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5.Considered the rival submissions made on both sides and perused the typed set of papers.

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6.The admitted facts are that the revision petitioner herein as a complainant preferred a complaint in C.C.No.51 of 2010 against the respondents herein for claiming damages for medical negligence. The complainant's side evidence was already completed and the 2nd opposite party/C.W.1/2^nd respondent herein has filed his proof affidavit during November 2011. When the matter was posted for arguments, the revision petitioner preferred C.M.P.No.81 of 2012 during March 2012 and it came up for hearing on 22.03.2012 and the following order was passed:

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“ 22.03.2012

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Arguments. Petition filed by petitioner/complainant prays to cross examine the

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second respondent/op before registry on 07.03.2012. Call on 18.04.2012.

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18.04.2012

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Arguments. Petition already filed by

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petitioners/Complainant prays to cross examine the second respondent/op before registry on 07.03.2012. Call on 07.06.2012.

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07.06.2012

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Arguments. M.P.81/12 is pending. No sitting. Re-

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posted 29.06.2012. Call on 12.07.2012.

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12.07.2012

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M.P.81/12 pending. Call on 25.07.2012.

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25.07.2012

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M.P.81/12 is allowed. Both sides represented by

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counsels. To examine O.P.2 call on 10.08.2012.

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10.08.2012

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To examine O.P.2 27.08.2012

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27.08.2012

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For appearance of complainant and for cross examination, adj to 04.10.2012.

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04.10.2012

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M.P.160/12 pending. Call on 15.10.2012.

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15.10.2012

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M.P.No.160/12 pending. Call on 22.10.2012.

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Thereafter the matter was posted on 22.10.2012,

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31.10.2012. 03.12.2012, 18.12.2012 and on

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21.01.2013, it was endorsed as follows:

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21.01.2013

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M.P.No.160/12 allowed. Additional documents are received subject to proof & relevancy and marked as Ex.A.44 to A.46.

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For Cross examination of OP2, Call on 01.03.2013.

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01.03.2013

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For cross examination of O.P.2.

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Both sides counsel present. Witness not present.

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Complainant is directed to serve the questionnaire to OP2. For filing reply for the questionnaire, post on 28.03.2013.”

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Merely because the deponent/2^nd opposite party has not been present, the matter was adjourned for furnishing questionnaire to him to give his reply.

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7.At this juncture, it would be appropriate to consider the following decisions relied upon by the learned counsel for the first respondent:

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(i) In the order dated 03.12.2004, Original Petition No.233 of 1996 (Smt.Indirani Bhattacharjee v. CMO Prakka Super Thermal Power and others), the National Consumer Disputes Redressal Commissioner, New Delhi has passed the following order:

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Commissioner would decide whether any further cross-examination on any point is necessary or not. The State Commissions as well as District Forums instead of recording the cross-examination may follow the practice of asking the parties to give interrogatories and thereafter reply of interrogatories on affidavits should be taken on record first instead of permitting the lengthy crossexamination.”

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But the above order is not applicable to the facts of the present case.

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(ii)In 2002 (6) SCC 635 (Dr.J.J.Merchant and others v.

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Shrinath Chaturvedi), in para-37(e), it was held as follows:

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“(e) In cases where the Commission deems it fit to cross-examine the witnesses in person, video conference or telephonic conference at the cost of the person who so applies could be arranged or cross-examination could be through a commission. This procedure would be helpful in crossexamination of experts, such as doctors. “

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Even though the learned counsel for the first respondent has relied

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upon para-37(d) of the above said decision, as per para-37(e), the 2^nd opposite party is a Surgeon and that he has alleged to be

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committed the medical negligence. In such circumstances, the above decision is not applicable to the facts of the present case.

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8.Considering the afore stated circumstances along with the

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above decisions, once the Court has given a permission to the revision petitioner to cross-examine the witness before the Commission, merely because the 2nd opposite party has not appeared, the Commission, without any reason, directed the complainant to furnish the questionnaire to him, is not valid under law. It is true, the revision petitioner has not been challenged the same by way of filing the revision petition. But however, she filed C.M.P.Sr.No.321 of 2013 for issuing direction to the 2^nd opposite party to appear for cross-examination in compliance with the order passed on 25.07.2012 in C.M.P.No.81 of 2012. But the said application was rejected by the State Consumer Redressal Commissioner, Chennai in the following cryptic order:

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“Both present. Heard. Finding no merit in this petition, the petition is rejected. “

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In the above said docket order, the Commission, without any rhyme or reason, rejected the petition. Under such circumstances, in my

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view, no harm will be caused to the respondents, if the 2^nd opposite party will be appeared before the Commission for crossexamination. So the order passed by the State Commission on 20.06.2013 is unsustainable. Therefore, the revision petition is allowed.

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9.In fine, the Civil Revision Petition is allowed. The revision petitioner is entitled to cross-examine the 2^nd opposite party, who is alleged to be committed medical negligence. The learned counsel for the first respondent fairly conceded that he will produce the 2^nd opposite party/C.W.1/2^nd respondent herein before the Commission on 31.07.2014. The learned counsel for the revision petitioner has also fairly conceded that he is ready to cross-examine him on the same date itself. No costs. Consequently, connected Miscellaneous Petition is closed.

15.07.2014

Internet:Yes kj

R.MALA,J.

1.The State Consumer Disputes Redressal Commission Chennai .

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