APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON : 11^th OCTOBER 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the interim impugned order dated 13.02.2017, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Consumer Complaint No. 65/2013, filed by the present appellant Urmil Chopra, vide which, Miscellaneous Application No. 738/2016, filed by the complainant, seeking cross-examination of the witnesses produced by the Opposite Parties (OPs) was ordered to be dismissed.

1. The facts of the case are that the complainant Urmil Chopra filed the consumer complaint in question against the OPs Fortis Healthcare India Limited and others, alleging medical negligence on their part, during knee replacement surgery carried out upon her by the Doctors at the OP Hospital.It has been alleged that the complainant underwent total knee replacement for both the knees on 20.05.2011 at the OP Hospital and was discharged on 26.05.2011.However, she developed infection in the right knee, because of which, she had to undergo a second surgery on 03.09.2011, involving payment of additional amount.However, her problem did not get rectified and she had to be operated third time on 20.10.2011, and the artificial knee of the complainant in the right leg had to be removed.Alleging gross negligence, professional misconduct and non-expertise of the OPs/respondents in the medical procedure, the complainant filed the consumer complaint in question, seeking compensation of ₹92,13,729/- including a sum of ₹17,13,729/- spent on the medical expenses during the treatment.

    

2. During hearing before the State Commission, the expert opinion of a medical board from the Department of Orthopaedics, Post Graduate Institute of Medical Education and Research Chandigarh (PGI, Chandigarh) was obtained and is placed on record.

    

3. A perusal of the interim order dated 02.02.2017 passed by the State Commission reveals that the counsel for the complainant had not filed the interrogatories, despite giving last opportunity to them to do the same.Their right to file the interrogatories was, therefore, closed and the case was fixed for arguments on 13.02.2017.In the impugned interim order recorded on 13.02.2017, the State Commission observed that the onus to prove negligence on the part of the OPs was upon the complainant, but they never enforced the presence of the witness of the OPs for the purpose of cross-examination.Accordingly, the evidence of the OPs was closed and the case was fixed for arguments.Thereafter, the complainant moved a Miscellaneous Application No. 738/2016 dated 08.04.2016, seeking permission to cross-examine the witnesses of the OP.The State Commission passed an order on 11.01.2017, asking the complainant to prepare the interrogatories and file the same before that Commission with an advance copy to the counsel for OPs.However, despite giving opportunities, the complainants failed to file the said interrogatories.After passing of the order on 02.02.2017, the husband of the complainant filed interrogatories with the Registry, but the papers were not signed by the complainant or by her counsel.The State Commission passed their order, on 13.02.2017 rejecting the miscellaneous application and hence, rejecting the request of the complainant to cross-examine the witnesses of the OP.It is against this order that the present appeal has been made.

    

4. During hearing before me, the learned counsel for the appellant stated that on 02.02.2017, the husband of the complainant was present before the State Commission, but their Advocate could not come from Delhi to appear before the State Commission at Chandigarh that day.The interrogatories could not be filed, therefore, on that day but later on, these were filed, as observed by the State Commission in their order dated 13.02.2017.The learned counsel stated that they should be allowed to cross-examine the witnesses produced by the other party in the interest of justice.

    

5. In reply, the learned counsel for the respondent stated that although the report of the medical board was submitted by the PGI, Chandigarh vide their letter dated 10.06.2015, yet the application for cross-examining the witness was filed on 08.04.2016, i.e., nearly 10 months of the report being submitted.The learned counsel further stated that proceedings under the Consumer Protection Act, 1986 are summary in nature and hence, cross-examination of experts produced by the respondent was not required.The learned counsel further stated that vide order dated 11.01.2017, the State Commission had directed the complainant to prepare the interrogatories before deciding their application for the examination of expert.However, despite many opportunities, the complainant did not file the interrogatories.On the other hand, the learned counsel for the complainant stated that as per order dated 23.02.2016 passed by the State Commission, the evidence of the OPs was closed and the case was fixed for arguments on 12.04.2016.They had, however, filed their application dated 08.04.2016 before the date of the arguments.

    

6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

    

A perusal of the papers on record indicates that the medical board constituted by the PGI, Chandigarh had filed their report before the State Commission vide their letter dated 10.06.2015.  As per order dated 12.04.2016, the OPs closed their evidence.  After tendering of affidavits and filing of documents, the case was fixed for arguments on 12.04.2016.  Miscellaneous Application No. 738/2016 for permission to cross-examination the witnesses is dated 08.04.2016 and must have been filed around that time. It is not understood how so much of time was spent, before taking a decision on the said application. The State Commission observed in their order dated 11.01.2017 that before disposing of the said application, the complainant should prepare interrogatories and submit the same and the case was adjourned for 20.01.2017.  On that day, another opportunity was given for filing the interrogatories and the case was fixed for 02.02.2017.  On that date, the learned counsel for the complainant did not come from Delhi and hence, the interrogatories could not be filed.  However, it is borne out from the impugned order of the State Commission dated 13.02.2017 that the interrogatories were subsequently filed, but there were no signatures on the same.  Considering the entire facts and circumstances of the case and looking at the report of the medical board, it is felt that it shall be in the interest of justice, if the complainant is given an opportunity to cross-examine the witnesses so that the exact facts could come to light.  This first appeal is, therefore, allowed and the order dated 13.02.2017 passed by the State Commission, dismissing the Miscellaneous Application No. 738/2016 is set aside.  The State Commission is directed to permit the cross-examination of the witnesses produced by the OP and proceed further with the case as per appropriate procedure.  There shall be no order as to costs.