BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

DATED THIS THE 11^TH DAY OF JULY 2022

PRESENT

SRI. RAVI SHANKAR                         : JUDICIAL MEMBER

SMT. SUNITA C. BAGEWADI              : MEMBER

Appeal No. 1244/2022

O R D E R

BY SRI RAVISHANKAR, JUDICIAL MEMBER

The OP in C.C.No.1247/2010 preferred this appeal against the order made by I Additional District Consumer Disputes Redressal Commission for cross examination of this appellant and submits that the complainant initially filed complaint alleging medical negligence in the year 2010 before the District Commission vide C.C.No.1247/2010 which was dismissed at the time of admission itself.  Subsequently, the complainant approached this Commission by preferring appeal vide Appeal No.4432/2010 and matter remanded back to the District Commission to adjudicate the matter on merits by providing opportunity to adduce evidence of both the parties.  Accordingly, District Commission restored the complaint and both parties have filed affidavit on their pleadings.  After that this OP also filed affidavit for which the District Commission posted the case for cross examination of the OP.  Since the said cross examination is not required in the summary proceedings as contemplated by Consumer Protection Act, hence, prays to set aside the order made by District Commission for cross examination of the OP.

2. The Learned Advocate for appellant relied upon certain decisions passed by Apex Court reported in (2002) 6 Supreme Court Cases 635 in the case of Dr. J.J. Merchant and others, reported in (2019) 2 Supreme Court Cases 282 passed in S.K. Jhunjhunwala Vs. Dhanwanti Kaur & anr., National Consumer Disputes Redressal Commission reported in 2002 SCC OnLine NCDRC 20 in the case of Con De’cor Rep. by its Managing Partner Vs. Smritikana Ghose & Anr., 2002 and submits that the cross examination of the Doctor is not required for adjudication of the dispute in hand. The appellant further relied on judgement of Hon’ble Supreme Court reported in C.P. Sreekumar (Dr.), MS (ORTHO) Vs. S. Ramanujam [(2009) 7 SCC 130] wherein it is categorically held that “the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence”.  In the decision passed by National Consumer Disputes Redressal Commission in Con De’cor Rep. by Managing Partner Vs. Smt. Smritikana Ghose and Anr. {2002 CTJ 692 (CP) (NCDRC)] wherein it is held that cross-examination of a witness during the trial of a Consumer Complaint is not a rule but an exception and can be permitted only where there is a question of reputation of person like a medical practitioner in cases of alleged medical negligence cases.  Hence, submits to set aside the order for cross examination and proceed to hear arguments of both side and dispose the matter in accordance with provisions of Consumer Protection Act.
3. Heard from appellant.  On perusal of the order sheet and memorandum of appeal we notice that after remand the District Commission has issued notice to both parties and provided an opportunity to lead evidence on their side.  Accordingly, complainant had filed his affidavit on 07.04.2022, there afterwards District Commission posted for evidence of OP on 28.04.2022.  Anyhow on 30.05.2022 on the side of OP Dr. Sudhir filed affidavit and marked documents as Ex.R1 to R4 and after that District Commission posted the case for cross examination of the said Dr.Sudhir whereas the appellant submits there is no provision in the Consumer Protection Act to automatically post the matter for cross examination of the parti