Cross Examination in a Consumer Case
The Consumer Protection Act, 1986 is an empowering act giving consumers easy access to justice against unscrupulous market practises, defective products and unsatisfactory services. Over the years, the Consumer Protection Act has extended its ambit even to medical1 and educational services. The Courts have judiciously interpreted that “service” as defined in Section 2(1) (o) of the Consumer Protection Act being wide enough to encompass vast and various issues that usually would costs a consumer not only much money but also time to pursue before any civil court. Consumer Forums, under this Act, have almost the same power as any civil court as clearly expressed under Section 13(4) of the Consumer Protection Act. However, to what extent, do the consumer forums enjoy the trappings of a civil court has been the subject matter of many appeals.
One pertinent issue in this regard is whether consumer forums have the power to conduct cross examinations as a civil court. The issue of cross examination has not been specifically laid out in the Consumer Protection Act. The only mention of examination of any kind is provided in section 13 (4)(v) of the Consumer Protection Act. This provision says that Consumer Forum can issue any commission for the examination of any witness. There are no explicit provisions that empower the Consumer Forum to conduct cross examination.
Need for cross examination:
The Consumer Protection Act has gained importance over the years. The number of complaints being registered in consumer forums has grown substantially2. Consumers today are not shying away from any deficiency of services. Consumers are no longer tolerant with defective products or shoddy services. Consumers expect their money’s worth. Amongst this barge of complaints there are many sensitive complaints dealing with medical negligence, insurance coverage, manufacturing defects in which there exists an inherent need to cross examine the witness or any party. Many allegations needs to countered and checked through expert opinions and cross examinations. Such complaints cannot be dealt away from the shallow end of the pool.
Reputations of doctors and many other professionals are based on the verdict of the consumer forums in such cases. The judgements and orders passed shall have a direct and substantial effect on both the parties. Hence there should be viable procedure that allows examination and cross examination of any parties in such sensitive cases. The Consumer protection Act only talks about reception of evidence through affidavits, however there is no provision for cross examination on the basis of the affidavits filed.
Judicial Interpretations:
The Consumer Protection Act is a specialised act. There is a time frame set for complaint to be adjudicated upon by the forum. The proceedings under this act are to be summarily tried. An amendment was brought in 2003, in which Section 13 clause (3-A) was inserted. This new clause endeavours consumer forums to expeditiously decide every case with in a period of three month to five months, depending on the nature of the case. This raises issue of permitting cross examination in such a short time frame. The question arises whether cross examination has to be permitted in consumer cases, which are prima facie or after arguments in the opinion of the Consumer forum more sensitive and require in dept analysis. Setting a short time line to deal with consumer cases has inadvertently lead many to believe that the civil courts would be an appropriate forum where cross examination is very explicitly permitted.
However in Dr. J.J.Merchant and Ors v. Shrinath Chaturvedi3 a three judge bench of the Supreme Court while considering the abovementioned concerns has laid down guidelines on when cross examination can be permitted in consumer cases. The Supreme Court has laid down that in cases where the commission deems fit cross examination may be permitted. The Supreme Court has also gone a step ahead of provided for two modes of cross examination. First is to offer a set of interrogatories to the witness who is to be cross examined. The witness shall then reply through an affidavit. The second mode involves in having the witness cross examined in person or through video or telephonic conferencing. However the second mode is usually to be used when cross examining an expert witness, who is unable to be appear before the Consumer Forum.
In other words one cannot conduct cross examination in every consumer case. The forum needs to be convinced that the case is of that nature where without cross examination the forum would be unable to fairly adjudicate the matter and safely reach a conclusion. It shall be for the party or his counsel to prove the same to the forum. The mode of cross examination is also very dependent on the nature of the case. If the forum feels that simple interrogatories would suffice in a matter then it may choose the method of cross examination through interrogatories.
This judgement has widened the power and scope of a consumer court. A consumer now has the power to cross examine his opponent and go in to intricate details of the case to prove his complaint. However consumers should be vary of various tactics employed during cross examination by the respondents to wriggle out of their liability. Consumer need to be prepared to closely deal with medical literature and work jargons especially in medical and insurance cases. Strongly worded clauses can be subjected to misinterpretation during cross examinations.
The judgement has also very explicitly has held complicated question of law and facts can be summarily inquired by the Consumer Fora. This has also been again affirmed in Punj Lloyd Ltd v. Corporate Risks India Pvt Ltd4.
In Dr. J.J. Merchant and Ors v. Shrinath Chaturvedi, no objective criteria has been laid down. The issue of allowing cross examination is at discretion of the Consumer Fora. This may lead to further difficulties and loss of fair opportunity to a party. For example in Rachna Shah v. Society of St Francis Hospital Nursing Home and Ors5 the National Commission was of the opinion that the contradictions in affidavits and pleadings of a party is not a sufficient cause to allow cross examination. Such contradictions can be pointed out to the court while arguing and hence there is no need to cross examine the party. Though the judgment clearly concedes that cross examination must be allowed judiciously, the party loses an opportunity to justify his stand of contradictory evidence. This can cause grave injustice to a party, especially if he is the consumer.
A pragmatic approach:
There is a greater need to lay down a well thought out criteria to deal with the present issue. Another pertinent point to ponder is whether the Consumer Forums would be influenced by pragmatic factors like numerous pending cases, low availability of resources etc… It would not be wrong to assume that the Consumer Forum with the genuine intention to dispose cases expeditiously may not be willing to allow cross examination in most consumer cases. The consumer, especially when not being represented by an advocate, might find it difficult to convince the consumer forum to allow cross examination in his case.
However it is not denied that this pragmatic approach wherein the issue of permitting cross examination is considered for each case on the basis of its facts and circumstances is a well justified approach. At the same time it cannot be denied that there is a need of the hour for the legislature to clearly lay down a well thought out, objective criteria to decide on whether cross examination can be allowed or not in a case.
1. Indian Medical Assn v. V.P.Shanta and Ors AIR1996SC550.
2. Consumer court gains popularity in Lucknow, sees 15% increase in cases filed, by Priyangi Agarwal, at thttp://timesofindia.indiatimes.com/city/lucknow/Consumer-court-gains-popularity-in-Lucknow-sees-15-increase-in-cases-filed/articleshow/25192969.cms as seen on Nov 4, 2013, 01.56AM IST;
Financial fraud case victims unaware of consumer rights, http://timesofindia.indiatimes.com/city/kozhikode/Financial-fraud-case-victims-unaware-of-consumer-rights/articleshow/30699511.cms, as seen on Feb 20, 2014, 04.47AM IST.
3. AIR2002SC2391.
4. 1(2009)CPJ10SC.
5. I(2013)CPJ186(NC).