Rachna Shah vs Society Of St. Francis Hospital Nursing Home

THIS order shall decide the application moved by the opposite parties for cross-examination of three witnesses namely Smt. Rachna Shah, Complainant No. 1, Mr. Sanjay Shah, Complainant No. 2 and Smt. Shakuntala K. Mehta, mother of Complainant No. 1. The Complainants are the parents of a child. They have filed this complaint for damages and compensation for deficiency of service provided by the Opponents to the Complainants and for the negligence as much as by their acts of omission and commission, the new born son of the complainants was lost or missing or kidnapped from the nursery of Society of St. Francis Hospital and Nursing Home and the society registered under the Rajasthan Societies Act, OP-1. At that time the Complainant No. 1 and her son were under the treatment, care and supervision of the opponents in the said hospital. They have claimed compensation in the sum of Rs. 75,000.

THE opposite parties have contended that the matter is firstly pending for arguments on the preliminary objection qua maintainability as is apparent from the orders dated 3.2.2005, 28.4.2011 and 28.7.2011. The order sheet dated 3.2.2005 goes to show that parties were called upon to file their affidavit evidence in support of their claim. However, it also mentioned that the matter shall be considered for two preliminary objections regarding the maintainability on the ground of pecuniary jurisdiction of this Commission and the pendency of criminal proceedings. The Counsel for the opposite parties submits that first question has been decided and second question is yet to be decided. It is also clear that the parties have led the evidence. Both the parties have given the affidavits in support of their case. The case was filed in the year 1998. The next submission made by the learned Counsel for the opposite parties was that it has become necessary to cross-examine the witnesses because they have made evasive replies to their interrogatories. The affidavits contain many contradictions and the complainants have taken diverse stands in their pleadings and affidavits. Our attention was also invited towards the order passed by the Hon ''ble Supreme Court in SLP No. 18102/2009. The Hon ''ble Supreme Court was pleased to pass the following order dated 3.8.2009: "Leave granted. The appellant is coming up against the order passed by the National Consumer Disputes Redressal Forum praying therein for putting the respondents and witnesses to cross-examination. The National Consumer Disputes Redressal Forum has directed the parties to exchange interrogatories, and we do not wish to interfere at this stage. We only observe that the interrogatories shall be exchanged and, thereafter, again if the appellant so feels it would be at liberty to apply for cross-examination justifying the need therefor. With these observations we dispose of the appeal. "

COUNSEL for the opposite parties argued that he has been given the right of cross-examining the witnesses as per the above said order. It is contended that the complainants have made altogether a new case during the answers given to the interrogatories. He invited our attention towards the verification of the witnesses which is reproduced as follows: "verified at Mumbai on this 25th day of July, 2012 that the contents of the above affidavit are true and correct to my knowledge, no part of it is false, and nothing material has been concealed therefrom. "

Same verification is appended with the affidavit of every witness.

IT was explained that the answers of all the three witnesses were dictated by the Advocate because the answers are same. He vehemently argued that the grand-mother of the child is the very material witness in this case. Then there are contradictions and it is not clear whether mother was outside or grandmother was outside the nursery room. The child was never delivered to the nursery after it was taken by the grand-mother of the child. This is a case of kidnapping of the child and the opposite parties are not in anyway responsible for this action. On the other hand, the Counsel for the complainants submitted that this is a delaying tactic and the negligence on the part of the opposite parties stands admitted vide letter sent by sister Clara to Mr. Atul Mehta, the relevant portion of which is reproduced as follows: "We are in receipt of your letter dated 23.11.1996 delivered to the undersigned by hand on 26.11.1996. In connection with the above letter we have to reply that the allegation against the Hospital and Staff about the kidnapping of the child are wrong. The child was found missing from the nursery. As soon as we were informed that the child was missing from the nursery we made all efforts to find the child and also informed the Police in this connection. Investigation in the matter is still pending. "

SHE also drew our attention to Civil Writ Petition No. 762/1997 wherein para 5 of opposite parties reply reads as follows: 5. That contents of para No. 5 of the writ petition are partly admitted and it is humbly submitted that after making investigation, it was found that the newly born child was with the petitioner upto 3.00 a.m. in the night intervening 5th and 6th of November, 1996, and after that the infant was given to sister Delfenna in the Nursery Room by mother of the petitioner, Smt Shakuntala Mehta.

LEARNED Counsel for the complainants also submitted that the register of nursery, which was maintained by the hospital was not produced for the reasons best known to the opposite parties. After mulling over all the facts and circumstances, we are not inclined to allow the above mentioned application for a variety of reasons. To top it all, the incident took place on 5th/6th November, 1996, application for cross-examination was moved in July 2012. Most of the delay is attributed on the part of the opposite parties. The order dated 12.7.2012 is reproduced: "Learned Counsel for both the parties are present. Learned Counsel for the opposite parties submits that due to his own personal difficulty, he could not file the interrogatories though he was directed to file interrogatories vide order of Supreme Court dated 3.8.2009. Almost three years have lapsed. This is delaying tactic. However, in the interest of justice, we allow him to file interrogatories within a week subject to payment of Rs. 25,000 as cost, out of which, 50% will go to the complainant and 50% be deposited with the Consumer Legal Aid Account of this Commission, failing which the said right shall stand forfeited. Copy be furnished to the learned Counsel for the complainant and the same be replied within another one week.

List on 31.7.2012 for final hearing -

DURING the arguments, learned Counsel for the opposite parties suggested that first of all, preliminary issues should be decided. This plea smacks of delay. Fourteen years have elapsed since the case is pending. The Consumer Protection Act envisages summary procedure but due to such delays, the Consumer Act has become worse than the civil proceedings. Justice delayed is not only justice denied -it is also circumvented, justice mocked and the justice undermined: This is again made clear that all the issues will be decided together and if the order has already passed by our learned predecessors that stands modified. The parties must argue the case on the next date of hearing.

SECONDLY , there is no need to cross-examine the witnesses. If witnesses have given same answers, it means they are speaking in one voice. If there are contradictions in pleadings and evidence by affidavit or interrogatories are in conflicting state, this will naturally go to embolden the case to the opposite parties. There is hardly any need to cross-examine the witnesses. Contradictions have already surfaced according to the opposite parties. The learned Counsel for the opposite parties contended that the hospital has got unblemished record. If it is so, it is very good but the main thing is that the opposite parties must prove it on the record. The question, whether the child was delivered to the nursery or not, is being kept open and will be decided at the proper time. This Fora will decide whether it is the case of negligence, kidnapping or something else. There is hardly any need of cross-examining the witnesses after the elapse of 16 years. This must be born in mind that the human memory is VICISSITUDINARY it becomes very difficult to remember the details after the expiry of 14 years. Cross-examination of the witnesses will not help the Commission. Last but not the least, it must be borne in mind that grand-mother of the missing child must be an aged woman. To call the grandmother in the dock would tantamount to harassment and mental torture. To question her about the incident would freshen up her memory and cause unnecessary harassment and mental agony.

THE application moved by the opposite parties is lame of strength and therefore, stands dismissed.

PUT up the case for final arguments on 10.9.2012. Petition dismissed.