S.P. MANDAL Vs. A.K. SHARDA

JUDGEMENT

(1.) IN spite of service of notice, none has appeared on behalf of the respondent. This petition is against the impugned order dated 15th April, 2008 passed by the District Forum whereby the application of the petitioner seeking an independent expert medical opinion was dismissed on the ground that jurisdiction of the District Forum cannot be used for creating evidence. The impugned order, on the face of it, suffers from inherent infirmity and illegality in consonance with the provisions of Section 13 of the Consumer Protection Act, 1986. We have also taken consistent view that wherever expert opinion, particularly, in the case of medical negligence is required, it is the duty of the District Forum to obtain such expert opinion to arrive at just and material decision. By not allowing the application on the premise that the District Forum cannot be used for creating evidence, the District Forum fell in grave error. Section 13(1)(c) of the C.P. Act which pertains to proper analysis or test of the goods can be extended to expert opinion on the dispute of question of facts. According to this provision, mere allegation of the complainant as to the defect in the goods cannot be determined without proper analysis or test of the goods. The District Forum has a mandatory obligation to obtain an opinion of the expert. Provisions of Section 13(1)(c) reads as under: "Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty -five days of the receipt of the reference or within such extended period as may be granted by the District Forum."

(2.) PROCEEDING on the above premise, we allow the petition and set aside the impugned order with the direction to the District Forum to allow the application for obtaining expert medical opinion on his own by the petitioner or the District Forum may obtain the same suo motu.

(3.) A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room. Appeal allowed.