Kashyap Vijay Deshpande vs Shridhar S Paradkar

A complaint before the State Commission was filed by the respondent, alleging negligence on the part of the petitioners/opposite parties in rendering medical services to him. The complainant claimed compensation amounting to Rs. 22,48,800/ - from the opposite parties including the petitioner herein.

DURING the hearing of the complaint, the petitioner/opposite party no. 4 filed affidavits of three doctors by way of evidence. Vide order dated 09.12.2013, the State Commission directed the opposite parties to produce the aforesaid witnesses before it for the purpose of their cross -examination by the complainant. That order, however, was not challenged by the petitioner or any other opposite party. Thereafter, an application seeking appointment of a Court Commissioner for cross -examination of the aforesaid witnesses was filed by the petitioner. The said application was rejected by the State Commission vide order dated 11.07.2014, noticing that the opposite party had failed to comply its earlier order to produce the aforesaid witnesses for the purpose of cross -examination. The petitioner then filed an application, seeking recall of the order dated 11.07.2014. The aforesaid application came to be dismissed by the State Commission vide its order dated 14.11.2014. Being aggrieved, the petitioner is before us by way of this revision petition.

IN our opinion, if the petitioner was aggrieved on account of direction given by the State Commission on 09.12.2013 to produce the aforesaid witnesses for the purpose of their cross -examination, it ought to have challenged that order, instead of waiting and then filing a separate application seeking appointment of a Court Commissioner to record their cross -examination. Having earlier directed production of the witnesses before it, the State Commission could not have allowed an application seeking appointment of a Court Commissioner to record their cross -examination, since that would have amounted to a review its earlier order dated 09.12.2013. Similarly, the petitioner was not justified in filing an application seeking recall of order dated 07.10.2014 since the State Commission does not have a power to review its order. By that as it may, we are of the view that since the witnesses whom the complainant was seeking to cross -examine were doctors and their absence from their respective clinics/hospitals for the purpose of enabling them to appear before the State Commission, for their cross -examination by the complainant, would certainly have disturbed their schedule in the clinics/hospitals, and in the process would have caused inconvenience to a number of patients being treated by them, the request for recording their cross -examination before a Court Commissioner was justified provided the petitioner meets the costs of such cross -examination including the fee of the Court Commissioner and the fee which the complainant would have to pay to its counsel for remaining present before the Court Commissioner for the cross -examination of the aforesaid three witnesses. We are also of the view that since the petitioner has unnecessarily prolonged the matter by remaining silent after the order dated 09.12.2013 was passed by the State Commission, directing appearing of the witnesses before it for the purpose of their cross -examination, he need to suitably compensate the complainant.

FOR the reasons stated hereinabove, the revision petition is allowed, subject to the following conditions: - (1) The petitioner shall pay a sum of Rs. 25,000/ - as costs to the complainant.

(2) The entire costs of recording cross -examination of the witnesses before the Court Commissioner including the fee which the complainant would have to pay to its counsel for the purpose of the said cross -examination shall be borne by the petitioner.

(3) The petitioner shall pay a sum of Rs. 5,000/ - to the learned counsel for the complainant as professional fee for cross -examination of the witnesses before the Court Commissioner. The fee of the Court Commissioner shall be fixed by the concerned State Commission, when the parties appear before it in compliance of our directions.

THE parties are directed to appear before the State Commission on 20.03.2015. On that date, the petitioner shall pay the costs imposed upon him and thereafter the State Commission shall proceed to appoint a suitable Court Commissioner to record the cross -examination of the witnesses at the date time and place convenient to the witnesses. The petitioner shall also pay an amount of Rs. 5,000/ - towards professional fee to the learned counsel for the complainant for the purpose of cross -examination of the witnesses before the Court Commissioner. The revision petition stands disposed of accordingly.