SUNIL KUMAR SHARMA vs K.K.HOSPITAL

THIS is an application for permission for cross-examination of the persons whose names have been given in the application.

THE application is opposed. We have heard learned Counsel for the parties. Learned Counsel for the complainant has argued that four doctors have filed affidavit in support of opposite party. But some facts have not been correctly and truthfully stated in the affidavit and as such cross-examination is necessary to bring out the truth.

On the other hand, learned Counsel for the opposite party has argued that the affidavit filed by the doctors are correct or the facts and on record. According to learned Counsel, it has not been indicated in the application as to on which facts have not been correctly stated by the witnesses on which cross-examination is required. In order to settle this controversy, it will be necessary to mention provision of Section 13(4)(i) which provides that for summoning and enforcing attendance of any defendant or witness and examining the witness on oath, the District Forum as well as Commission shall have same power as are vested in Civil Court under the Code of Civil Procedure while trying a suit-Sub-Clause (III) provides for reception of evidence on affidavits. Thus, a conjoint reading of these both clauses means that when an evidence has been filed on affidavit or some facts are needed to be explained or elucidated then in certain cases, the witnesses who have filed affidavit can be called for cross-examination. This refers to the power vested in the Civil Court in the Code of Civil Procedure.

ORDER XIX which provides for filing evidence on affidavit to prove certain facts. Sub-rule (2) provides power to order attendance of deponent for cross-examination. A perusal of this provision will go to show that if evidence has been given on affidavit by any party then the Court has a power either suo motu or on the request of a party to order for the attendance of witness who has filed an affidavit to be cross-examined by other party. This cross-examination is to be permitted under the provision of law contained in Civil Procedure Code. Learned Counsel for opposite party has relied on the following two cases in support of his arguments : (1) Khushi Ram Dedwal v. Additional Judge, Small Causes Court/Prescribed Authority, Meerut & Ors., 1997 (2) Allahabad Rank Cases 674. (2) Kashmiri Lal v. Prescribed Authority (Rent) 1st Additional Civil Judge (CD), Muzaffar Nagar & Ors., 1997 (2) Allahabad Rank Cases 616.

IN the first case, a Division Bench of High Court had an occasion to consider this point in relation to provision of Section 34(1)(b), U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Rule 22 framed under the Act and Provision of Order XIX, Rules 1 and 2 of Civil Procedure Code. Provisions of Order XVIII, Rule 4 has also been considered. A perusal provisions of Sections 34(1)(a) and (b) which provides for summoning and enforcing attendance of any person and examining him on oath and receiving evidence on affidavits reveal that they are analogous to the provision of Sections 13(1)(i) and (ii), Consumer Protection Act. Thus, we find that certain principles are to be observed before a witness can be ordered for cross-examination. In this case, a reference has been made to the case of Jammu and Kashmir & Ors. v. Bakshi Gulam Mohamad & Ors., AIR 1967 Supreme Court 122. In this case, it was held as under while interpreting Section 4(c) which is analogous to Section 13(4)(i) of Consumer Protection Act. "If Section 4(c) conferred a right to cross-examine every one who swore an affidavit as to the facts involved in the inquiry, then Section 10(2) would become superfluous. An interpretation producing such a result cannot be right. It also seems to us that Order XIX, Rule 1 has to be read with Order XVIII, Rule 4 which states that the evidence of the witnesses in attendance shall be taken orally in open Court. It would appear, therefore, that Order XIX, Rule 1 is intended as sort of exception to the provisions contained in Order XVIII, Rule 4. The Act contains no provision similar to Order XVIII, Rule 4. Therefore, when Section 4(c) of the Act gave the Commission the power of receiving evidence on affidavits, it gave that as an independent power and not by way of an exception to the general rule of taking evidence viva voce in open Court. It would be natural in such circumstances to think that what the Act gave was only the power to take evidence by affidavit and did not intend it to be subject to the proviso contained in Order XIX, Rule 1, if it were not so, when the result really would be to require all evidence before the Commission to be given orally in open Court. If that was intended, it would have been expressly provided for in the Act."

The Court further quoted the observations of Division Bench in the case of Assam Dass v. Prescribed Authority/Civil Judge, Mohanlalganj, Lucknow & Anr., 1996 (2) ARC 92 : "In our view a conjoint reading of Rule 1 of Order XIX, Code of Civil Procedure and Section 34 of the Act makes it quite manifest that if the Prescribed Authority is satisfied that it is necessary for the ends of justice and to elicit truth that the deponent of the affidavit should be called upon to appear before it for the purpose of cross-examination the Prescribed Authority has jurisdiction and power to ask such person to appear before it for that purpose."

IT was also held that when the cross-examination is necessary, it has to be decided in the context of factual back-drop of the case and the context of nature of the proceedings under the Act.

IT was further held that as the Act provides for speedy disposal of cases; therefore, the Legislature did not provide as a rule that oral evidence is to be given in support of facts alleged in every case. The facts which are proved on affidavit and if unnecessarily cross-examination is permitted it will only hamper the expeditious disposal of cases. In the Supreme Court''s decision, it was further observed that preliminary object of the act is to decide the cases as early as possible and if parties are permitted to record oral evidence or permitted deponent to cross-examination then it will not be possible to decide the case within the time bound period. It was also observed that the parties use this provision in order to delay the proceedings. If the case can be decided on the documentary evidence and on affidavit, then cross-examination should not be permitted.

In the second case, Kashmiri Lal v. Prescribed Authority Rent (supra), the same principle was followed and it was held that if some material facts are in dispute which require clarification, only then the party can be permitted to cross-examine the witnesses but not in all cases. It was held as under : "It is not in dispute that where some material fact, needing elucidation by cross-examination, can be brought on the record if can be permitted but not in every case cross-examination can be permitted. Muchless when not even single example of falsehood or concealment of fact has been stated. In all cases if permission for cross-examination is sought and is granted then the provisions of the Act, relating to tendering of evidence by affidavits for expeditious disposal of the case, are bound to be set at nought."

WE have now to apply the principles laid down in these cases to the facts of the case in hand. The application to cross-examination of witnesses in the present case does not disclose any instance or fact which has not been correctly stated or has appeared to be false in view of documents already filed on record. This provision cannot be invoked as a matter of right. The Court is bound to go into the facts of the case in order to find whether the prayer is justified and interest of justice will suffer in absence of such a cross-examination. In this application not even a single instance has been given to show which fact has been incorrectly stated by the persons who have filed affidavits. Therefore, this application does not fulfil the requirements of law and as such is dismissed. The next application is for directing the opposite party to file eight papers. The application is opposed.

WE have heard learned Counsel for the parties. From the perusal of the file, we find that papers mentioned at para 4(c) which relates to medicines prescribed to Smt. Asha Sharma during pre and post operative periods from 3rd June to 7th June, 1994. Bed Head ticket and temperature and other charts maintained by opposite parties for Smt. Asha Sharma. All pathological reports including blood, urine etc. Ultrasound and x-ray reports showing stones in Gall Bladder, History of patient and Policy of Insurance valid on 5th June, 1994 are necessary documents. The Policy of Insurance will show whether the opposite party was insured as alleged by the complainant or not. These papers are required for just decision of the controversy in dispute and their filing before Commission is necessary. This application is allowed. The opposite party is directed to produce documents mentioned in the application in paras 4(c) to 4(h) within three weeks from the date of this order. Put up for further orders on 17.9.1999. Ordered accordingly.