NEERAJ AMARNATH DORA Vs. NANDAN HOSPITAL

JUDGEMENT

(1.) PRESIDING Member"This order shall dispose of the miscellaneous application filed by the Complainant for cross -examination of Opposite Parties as also experts whose affidavit evidence has been filed. The Counsel for the Opposite Parties has filed reply. We have heard authorized representative of the Complainant and learned Counsel appearing on behalf of the Opposite Parties.

(2.) IN reply filed by the Opposite Parties, reliance has been placed on law on the subject on the basis of which it is submitted that in accordance with the view taken by the Honble Supreme Court and the National Commission the Complainant has to first file interrogatories and it is only thereafter in exceptional cases cross examination can be allowed.

(3.) THE Apex Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi1 has laid down in para 19 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 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 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. (Emphasis supplied)