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2003 DIGILAW 232 (JK)

R. N. Sharma (Dr. ) v. Neelam Charak

2003-08-08

Y.P.NARGOTRA

body2003
ORAL : This appeal is directed against order dated 16.04.1999 passed by learned J&K State Consumer Protection Commission, Jammu whereby compensation of Rs. 50, 000/- has been awarded to the complainant/petitioner. 2. Petitioner Neelam Charak was suffering from chronic micturtion i.e. obstruction in passing Urine. She consulted senior Surgeon Urologist, Dr.R.N.Sharma, appellant on 30.8.1995. Appellant Dr.Sharma examined her clinically and directed her to go to Medicare Nursing Home, where Dr.Sharma was working for conducting various tests. Accordingly, clinical tests were conducted, whereafter she was examined by Dr. R.N. Sharma, who diagnosed the ailment of appellant/complainant as Bladder Neck obstruction due to Bladder neck eleuation. She was advised to undergo operation for that. With her consent, she was operated upon by giving Bladder Neck Incision at 6 OClock position. For post operative care, she remained admitted in the Nursing Home for two days and thereafter she was discharged. On the same day, however, the complainant complained of lack of control of micturtion. Appellant, R.N.Sharma was again consulted who put Cathetor and removed the same after sometime for being put on medicine but the problem continued to persist, whereupon Dr. Sharma, appellant himself advised complainant to go for second opinion from PGI, Chandigarh. Complainant went there in October, 1995. She was again put on medicine but her condition did not improve. Thereafter she went to Ganga Ram Hospital, New Delhi in February, 1996 and consulted Dr.Vohra, who examined the complainant and diagnosed her ailment as Urethro Vaginal Fistula and conducted second surgery for repairing the damage done to the damaged part of the complainant, whereafter she was cured of her problem. 3. She made a complaint under section 10 of the J&K Consumer Protection Act, 1987 before the learned State Consumer Protection Commission, Jammu. Notices were issued to the respondents. Respondents contested the claim of the complainant. Appellant did not dispute the fact of his having conducted surgery upon the complainant for curing here chronic micturation disease. He took up the stand that on examination, he found that there was Bladder neck obstruction and so he had given incision on his part. 4. In view of the stand taken by the appellant before learned Commission, the vital question arising for consideration was as to whether complication developed by the complainant was a post operative complication or was it due to the negligence of the appellant in conducting of the operation. 4. In view of the stand taken by the appellant before learned Commission, the vital question arising for consideration was as to whether complication developed by the complainant was a post operative complication or was it due to the negligence of the appellant in conducting of the operation. Admittedly, the matter being highly technical, the decision of the question would depend upon the expert opinion. The complainant also visualized upon the expert opinion. The complainant also visualized the said position and therefore, filed an application before the learned Commission seeking summoning of Dr.V.K.Vohra, Urologist of Sir Ganga Ram Hospital, New Delhi, who had conducted second surgery and on whose treatment complainant had been cured of her post operative complication. In paras 2 and 3 of the application, it has been averred by the complainant as follows : "2. That the complainant has examined herself before the Honble Commission and has also to examine Dr. V.K. Vohra as her witness and that the said witness is very relevant, material and most pertinent in the case and his examination will lead to proper adjudication of the complaint. 3. That when the Honble Commission granted time to the complainant to lead her evidence, the complainant despite her exercise of due diligence could not produce the aforesaid witness. The complainant had engaged counsel to defend her case in the Honble Commission and the said counsel did not summon the aforesaid witness in the Honble Commission. The complainant is not a law knowing person and could not envisage the technicalities of law and was fully dependent upon the counsel engaged by her. The counsel engaged by her never advised the complainant to examine the aforesaid witness." 5. Thus, there was a positive stand of complainant before the Commission that evidence of Dr.Vohra of Sir Ganga Ram Hospital was of vital importance for determination of the question of negligence of appellant. But the learned Commission by its order dated 10.11.1998, rejected the prayer of the complainant in terms of the following order: "Counsel present. After close of evidence and arguments stage complainant has sought permission to examine some more witnesses by summoning him under J&K State CPA. We do not have power to summon witness who may be necessary for effective adjudication on our own. Unlike inherent power under CPC or Section 540 Cr.P.C. there is no such permission. After close of evidence and arguments stage complainant has sought permission to examine some more witnesses by summoning him under J&K State CPA. We do not have power to summon witness who may be necessary for effective adjudication on our own. Unlike inherent power under CPC or Section 540 Cr.P.C. there is no such permission. There is no indication in the application as to under what relevant provision of the Act it has been filed since the case has been closed and fixed for argument. It would virtually amount to reopening of the case which we cannot do. Application is filed. List for arguments on 3.12.1998." 6. The learned Commission, therefore, shut out a very relevant evidence of Dr. Vohra on hyper technical ground being under the impression that there was no provision available under the provision of J&K State Consumer Protection Act for summoning of the witnesses. The learned Commission appears to have not noticed that provision contained in section 16 of the Act, which says that the procedure specified in section 10, 11 and 12 and under the rules made thereunder for the disposal of complaints by the Divisional Forum, shall with such modification as may be necessary be applicable to the disposal of disputes by the State Commission. Sub-sections 4 and 5 of section 11 of the Act specify the power which a Divisional Forum can have while trying a complaint. These sub-section are quoted below: - "4. For the purposes of this section, the Divisional Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, Samvat 1977 while trying a suit in respect of the following matters, namely : (i) the summoning and enforcing the 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. 5. 5. Every proceeding before the Divisional Forum shall be deemed to be a judicial proceeding within the meaning Section 193 and 228 of the Ranbir Penal Code, and the Divisional Forum shall be deemed to be a Civil Court for the purposes of section 195 and Chapter XVII of the Code of Criminal Procedure Samvat 1989." 7. When the provision of these two sub sections aforequoted is read with section 16 of the Act, it is manifest that the State Commission enjoys even more wider power than the Divisional Forum. Be it so, provision is there under which witness Dr. Vohra could have been summoned. The evidence of Dr.Vohra is very material for the decision of the question as to whether appellant was negligent or not because Dr.Vohra in the circumstances of the case appears to be the best expert in the field. 8. In this view of the matter, the order of the learned J&K State Consumer Protection Commission cannot be sustained. The order impugned passed by the learned Commission is, therefore, set-aside and the matter is remanded back to the learned Commission for summoning and recording evidence of Dr.V.K.Vohra at the expense of complainant. The respondent in the complaint and appellant herein shall also be entitled to produce other expert for rebutting evidence of Dr.Vohra. after recording such evidence, parties shall be re-heard and thereafter fresh order shall be passed for disposal of the complaint under law. The case may be decided expeditiously. 9. With these observations, appeal is allowed. Learned counsel for the parties are directed to cause appearance of their respective clients before the learned State Consumer Protection Commission on 06.09.2003. Amount of award deposited by the appellant, shall be returned to him.