SREELATHA MURUGAPPAN vs Anantharaman

THIRU Justice A. Raman, President-The revision petition is directed against the order passed by the District Consumer Disputes Redressal Forum, Tiruvallur on a memo in O.P. No. 30/2003 on 7.11.2003.

THE complaint is filed against the Doctor and the hospital claiming a compensation of Rs. 4,15,266/- alleging medical negligence. THE opposite parties 1 and 2 namely the doctor and the hospital appeared and filed their version. It is also stated that the complainant and the opposite parties have submitted their proof affidavit. While so the complainant filed a memo on 3.11.2003 which runs as follows: "THE above matter posted today for CW for further evidence but the Counsel for the complainant made an endorsement stating that no further evidence on complainant side. Already the Counsel for the opposite parties filed their Proof Affidavit and in this case the complainant wants to cross-examine the opposite parties 1 and 2. THE complainant, therefore, prays that this Hon''ble Court may be pleased to direct the opposite parties 1 and 2 to appear before this Hon''ble Forum for cross-examination and thereby render justice."

The opposite parties took notice of the memo, submitted their objections.

After hearing both the parties, the Lower Forum passed an order overruling the objections raised by the opposite party and directing the appearance of the opposite party for the purpose of cross-examination. Thus, this revision opens up a vista of legal labyrinth.

LEARNED Counsel appearing for the petitioner would submit that the remedy of the complainant is if at all to submit questionnaire for cross-examination of the opposite party by way of affidavits and that the opposite parties cannot be compelled to submit themselves to cross-examination. In this connection, he would also submit that the opposite parties have not chosen to take the witness stand to depose and as they have not tendered any evidence in chief, the question of their being required to appear before the Forum for cross-examination will not arise. As we pointed out already, this revision petition, throws upon interesting question of law for consideration. We have to consider and answer the following questions for effectively disposing of this revision petition. The first question to be answered is (1) whether the opposite parties can be compelled to submit themselves to cross-examination? (2) What is the procedure to be adopted in such cases?

SECTION 13 of the Consumer Protection Act, 1986, lays down the procedure to be followed by the Forum. Under Sub-section 4, it is stated as follows: "(4) For purposes of this section, the District Forum shall have the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 ( 5 of 1908), while trying a suit in respect of the following matters, namely: (i) The summoning and enforcing attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and (vi) any other matter which may be prescribed."

We are now concerned with only Sub-clause (i) of Sub-section (4) of SECTION 13. The sub-clause reads as follows: "(i) the summoning and enforcing attendance of any defendant or witness and examining the witness on oath."

Here, admittedly, the question of summoning and enforcing the attendance of the opposite party is not the matter in controversy. Admittedly, summon had been issued and the opposite parties had entered appearance and have filed their version. Therefore, that part of the sub-clause is not applicable in this case. The other part of the sub-clause is summoning and enforcing attendance of any witness and examining the witness on oath. Therefore, the Civil Procedure Code, (for short, "CPC") would apply only insofar as it relates to summoning of the witness and examining the witness on oath. The opposite parties can never be called or treated as witness for the complainant. In fact, the practice of summoning the opposite parties as a witness had been deprecated in a number of cases. Further, the complainant herein has already examined his witness. He has not cited the opposite parties as a witness to support him. He has also not filed any petition for permission to examine the opposite parties as a witness for him nor has prayed for any issuance of summons to them as his witness. In fact, in the memo filed by him, he has only stated that the complainant wants to cross-examine the opposite parties. The Forum is empowered to dispose of cases on the basis of affidavits vide SECTION 13(4)(iii). Here affidavit has been filed. Cross-examination would come in only if the person who is sought to be cross-examined is cited as a witness and examined as a witness by the other side. Here, in this case, admittedly, the opposite parties have only filed proof affidavit and have not examined themselves. They have not been cited as witness by any other person nor have been examined either in part or in chief by any other person as a witness on the side of the said person. Therefore, the opposite parties cannot be treated as a witness by the complainant either for the purpose of proving his case or disproving his case. The opposite parties being adversaries to the complaint, there is only a right of cross-examination available to the complainant if and when they choose to take the witness stand to speak against him. Otherwise, there is no scope to treat them as a witness at all. Therefore, the question of application of Sub-clause (1) of Sub-section (4) of SECTION 13 will not arise. Moreover, it is the fundamental proposition of law that a person cannot be compelled to give evidence against himself. Therefore, viewed from any angle, it cannot be said that the complainant has got any right to require the opposite parties to submit themselves for cross-examination. Order 16 of the CPC is the relevant provision with reference to Sub-clause (1) of this Act. Order 16 relates to summoning and attendance of witnesses. Therefore, the very heading of Order 16 would show that it is applicable only to witnesses. However, there is Rule 21 which says that ''where any party to a suit is required to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as they are applicable''. Therefore, the provisions of Order 16 is made applicable to a party only if the party is required to give evidence or produce the document otherwise the provisions of Order 16 cannot be made applicable. Here, of course, it can be argued that the order passed by the Lower Forum has to be treated as an order requiring the opposite parties to give evidence and, therefore, Order 16 Rule 21 would apply and necessarily it would attract the provisions of Order 16 in its entirety. Order 16 only provides the procedure applicable for summoning of the witnesses and the consequences of a party refusing to give evidence when called for. Even here, Order 16 Rule 20 makes it clear that ''where any party to a suit present in Court refuses, without lawful excuse, when required by the Court, to give evidence or to produce any document then and there in his possession or power, the Court may pronounce judgment against him or make such order in relation to the suit as it thinks fit.'' Thus, Rule 20 applies to a party who is present in Court and who refuses to give evidence. Rule 10 provides that where a person to whom a summon has been issued either to attend to give evidence or to produce a document, failed to do so, it would attract certain consequences. Therefore, a reading of Order 16 would show that it only lays down the procedure for summoning of witnesses and that the provisions would apply only when a party is required to give evidence. It has to be therefore seen whether this is a fit case for the lower Forum to have exercised the discretion in requiring the attendance of the opposite parties for cross-examination. For that purpose, it is necessary to understand the object of the Act. The very purpose behind the Act is to provide a speedy and summary inquiry. That is why we find that a period has been specified for disposal of the cases and certain period is provided for the filing of version by the opposite party. Therefore, the accent being on speedy disposal one has to think twice before ordering any steps that would ultimately render nugatory the very purpose of the Act. If in every complaint especially of the nature in dispute here, parties are allowed to adduce evidence at length by summoning and examining number of persons, then it would amount to an elaborate trial before a Civil Court thereby making the object of the Act illusory. or an elaborate trial or inquiry would only consume more time and the motto of speedy disposal would thus stand sacrificed at the altar of procedure. That is why the Supreme Court had taken the view in the decision reported in (1995) 6 Supreme Court Cases 655 that4 Consumer Protection Act is meant for speedy disposal of a complaint and not cases of complicated issues requiring recording of evidence of experts, the complainant can be directed to approach the Civil Court. The Supreme Court has further observed as follows: "It has been urged that proceedings involving negligence in the matter of rendering services by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated question. It is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency in rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning (as in Chin Keow v. Govt. of Malaysia) or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issue arising in the complaints in such case can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

THEREFORE, with the above observations of the Supreme Court, one has to approach the issue. In a later decision by the Superme Court reported in III (2002) CPJ 8 (SC), the Supreme Court clearly held that "The Act specially 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 CPC 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."

THEREFORE, in the light of the above two decisions, it is necessary to evolve a procedure. As we stated already, the case on hand is different in the sense that relates to a party and not to a witness and, therefore, it is necessary to see that the constitutional rights of a party is safeguarded. In fact the lower Forum has only chosen to distinguish the above case on the ground that the above case is relatable to examination of experts and, therefore, cannot be made applicable to the facts of this case. The fact remains that the 1st opposite party is an expert namely a doctor. Merely because, she is made an opposite party, she does not cease to be an expert. If she tenders evidence, it can be only in support of her and as a witness for herself. Of course, her evidence in such circumstances cannot be strictly construed as that of an expert evidence since she is a party. Her evidence can be treated only that of an interested person. But, as we pointed out already, she is not a witness for the complainant. She is not cited nor can be cited as a witness by the complainant. There is no permission sought for nor granted by the Forum to examine the opposite party as a witness for the complainant or as a witness in this case. The complainant just wants to drag her to Court. The opposite party is willing to tender evidence but not in Court. Can we compel such a person, especially in the wake of the judgment of the Apex Court. The Lower Forum erred in treating the opposite party on par with a witness forgetting the fact that she is a party, an adversary to the complaint and a person who has not been summoned to appear as a witness and depose. THEREFORE, before exercising the discretion to direct her, the lower Forum ought to have kept in mind this vital distinction and also the protection available to a person from being compelled to give evidence against them and the law laid down by the Apex Court. THEREFORE, at best if a party is not willing to take a witness stand and submit themselves to examination and cross-examination in Court, the only course open to the Forum would be to draw adverse inference from that. THEREFORE, considering the facts and circumstances of this case, we feel that in order to protect the rights of the parties and to have the best available evidence before the Forum, a procedure as indicated by Their Lordships of the Supreme Court in the decision referred to above namely III (2002) CPJ 8 (SC) should be evolved so that it can be made applicable to witnesses and parties as well on all occasions and at all times in future. THEREFORE, we would evolve the following procedures which shall be followed by all the District Fora in this State in future whenever such occasions arise. Whenever and wherever it is made out to the satisfaction of the Forum that the examination of a party to the proceedings or a witness is necessary and the witness or party happens to be an expert, say, a doctor, an engineer or lawyer or a professional as the case may be and the said witness or party is either unable or unwilling to appear in person to tender evidence before the Forum, then the Forum shall implement the following procedure: (1) The affidavit filed by the party or witness shall be treated as his evidence in chief examination and copies thereof shall be supplied to the other party. The party who intends to cross-examine the said witness or party shall be permitted to cross-exmaine by putting the necessary questions in writing by way of interrogatories so that those questions could be replied by such experts including by such witness or party by way of an affidavit.

(2) In cases where anyone of the parties apply for the appointment of Commissioner to examine a witness or a party or an expert on commission, the Forum shall in its discretion and at the instance of either of the parties for examination and cross-examination of the party or a witness or an expert appoint a Commissioner to examine the witness or a party or an expert at the working place of such party or witness or an expert or at any place chosen by the Forum with the consent of both the parties.

(3) In cases where the stakes are very high, the Forum, at the instance of parties and in its exercise of discretion, shall permit the examination and cross-examination of a party of an expert or a witness through video conference or by arranging telephonic conferences, however, it shall be at the cost of the person seeking such facility.

(4) If a party is unable to or unwilling to submit himself to examination under anyone of the above modes, the Forum shall be at liberty to draw such inference as indicated in the law.

Therefore, in view of the above discussions, it follows that the order passed by the Lower Forum suffers from material irregularity and is in excess of jurisdiction of the lower Forum. Therefore, the order passed by the lower Forum will stand set aside.

In the result, this revision petition is allowed but in the circumstances without cost. The order passed by the lower Forum on 7.11.2003 is set aside. The Registry is directed to circulate a copy of this order to all the District Consumer Disputes Redressal Forums for follow-up action. R.P. allowed.