C S R HOSPITAL Vs. M K KANNAN

JUDGEMENT

(1.) THESE two appeals arise out of the orders passed by the lower Forum, one on 8.10.1999 in an application filed seeking permission to amend the complaint and the other, on the same day in a petition filed by the opposite party seeking permission to cross -examine the complainant. With regard to the petition filed for amendment, the complainant did not originally set out the full facts of the case except to make general allegations. The complainant, however, has stated that he would reserve his right to amend the complaint in its content and to add new parties on receiving further information from the adversary. The case is one of medical negligence. The complainant asked for medical records and case sheets from the opposite party and the opposite party informed that they will produce all the case sheets available in a Court of law or before the Medical Authorities. Thereafter he has come up with this application for amendment setting out the previous physical condition of his wife and other necessary medical facts specifically concerning his wife. The Supreme Court has held that the Forum constituted under the Consumer Protection Act has all the trappings of a Civil Court and judicial authority and have also observed that the power of a District Forum is wide enough to use even to allow an application for amending the complaint provided the Forum is satisfied that the amendment has to be permitted and no prejudice would be caused to the opposite party. The complainant is only a lay person and he cannot be expected to know the nuances of medicine. The complainant was not furnished with the case sheet. As the complainant was not furnished with the case history the complainant could not file the complaint with necessary averments depending upon the materials culled out from the case sheet. Now the complainant wants to bring into the complaint certain facts relating to the medical history of his wife and the nature and course of treatment she had, with a view to contend that there has been negligence on the part of the opposite party on account of which the tragedy had occurred. Therefore, the lower Forum in its wisdom thought that the complainant ought to be permitted and it would not cause any prejudice to the opposite party. We do not see any reason to hold that the order of the lower Forum is either perverse or unwarranted. Unless it is shown that the order passed by the lower Forum is, on the face of it, untenable, this Commission, sitting in appeal over the same, would be hesitant to interfere with this order. Just as there is no specific provision arming the Forum with the power to grant amendment, equally there is no prohibition as well. Sec.13 of the Consumer Protection Act provides that the provisions of the Code of Civil Procedure would apply while trying a suit with regard to summoning and enforcing attendance of any defendant or witness and examining the witness on oath, discovery and production of any document or other material object producible as evidence, reception of evidence etc. The Act also empowers the Forum to prescribe the procedure for collecting and accepting of evidence. Sub -section (5) makes it clear that the proceedings shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code and the Forum shall be deemed to be a Civil Court for the purposes of Sec.195 and Chapter XXVI of the Code of Criminal Procedure. It also provides that the provisions of Rule 8 of Order I would also apply. Therefore, the cumulative effect of these provisions would only go to show that the Forum has been empowered to permit amendment of the complaint or the version, as the case may be, in fit cases. By necessary logical corollary and implications, such power has to be inferred. Therefore, the view of the lower Forum in holding that the amendment has to be permitted cannot be termed as perverse or opposed to the provisions of the Act. On facts as well, the lower Forum has held that it was satisfied that it was a fit case to permit amendment. In the circumstances, we also do not see any reason to take a different view. Therefore, as regards the appeal preferred against the granting of permission to amend the petition, we find the appeal is devoid of any merits and deserves to be dismissed.

(2.) NOW coming to the other appeal, viz. , the other application filed by the opposite party seeking permission to cross -examine the complainant with regard to the affidavit filed by the complainant. We are of the view that the decision of the lower Forum cannot be maintained. This is a case of medical negligence. The complainant has made certain allegations in the complaint. The complainant has also filed a proof affidavit. Though the complainant did no come forward with any specific case except to allege negligence generally, latter the complainant has been permitted to amend the complaint to include certain other facts regarding the medical history of the patient, course of treatment she underwent and also to incorporate allegations about the manner of treatment and the alleged acts of negligence committed by the opposite party. Therefore, the opposite party has got a right to cross -examine the complainant with regard to the facts stated by him in the affidavit. Such a right is a fundamental right. The opposite party is the affected party. Therefore, the affected party must be given an opportunity to cross -examine the complainant with regard to the matters sworn to by the complainant in his affidavit. The lower Forum has adopted a double -standard in the matter of decision when it came to the request of the opposite party for permission to cross -examine. Simply because the Consumer Protection Act contemplates only a summary procedure, there is no warrant for holding that there is no scope for oral evidence or cross -examination by a party. The complaint is of the year 1997 and yet the lower Forum has thought it fit to order amendment of the complaint though the amendment application was filed in the year 1999. At that point of time, the lower Forum did not think of applying the Rule of 90 days fixed under the Act for the disposal of the cases. The Act no doubt insists upon speedy disposal. But that does not mean ex parte disposal. There is no specific bar provided under the Act preventing a party from examining himself or requesting permission to cross -examine the other party. It is rather strange for the lower Forum to hold that there is no scope for cross -examination and the records available are sufficient to decide the dispute. As we have pointed out already, the matter is one of medical negligence. The prestige of a doctor and the dignity of his profession are involved. Certain allegations are made in the affidavit. The affected party seeks a right of cross -examination which ought to be granted to the opposite party. When there is no scope as such in the Act, the lower Forum allowed the application for amendment and by the same standard, it ought to have allowed this application for cross -examination as well. The Supreme Court has also underlined this fact in their judgments and have stated clearly that the right of party should not be taken away. Therefore, the order passed by the lower Forum dismissing the application is not sound and is neither tenable nor justifiable on facts. Therefore, this appeal has to be accepted setting aside the order of the lower Forum.

(3.) IN the result, the appeal in A. P. No.812/99 is dismissed confirming the order passed by the lower Forum. In the circumstances there will be no order as to costs. However, the appellant is at liberty to file additional reply version consequent on the amendment ordered, if not filed already. The appeal in A. P. No.813/99 is allowed, but without costs. The order passed by the lower Forum is hereby set aside. The opposite party shall be given an opportunity and shall be allowed to cross -examine the complainant. The lower Forum shall issue summone to the complainant for his appearance for cross -examination and if the complainant fails to turn up, it will be always open to the lower Forum to draw suitable inference and presumption under the law. Ordered accordingly.