IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MAY, 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION Nos.15898-15899/2019(GM-RES) BETWEEN:
1. DR. KIRAN KUMAR C. B.
S/O LATE SRI BOPPARAYAPPA, AGED ABOUT 37 YEARS, CONSULTANT ORTHOPEDIC, 23, 80 FEET ROAD, 2ND STAGE,NAGARBHAVI, BENGALURU-560072 2. FORTIS HOSPITAL 23, 80 FEET ROAD, 2ND STAGE, NAGARABHAVI, BENGALURU-560072 REPRESENTED BY ITS FACILITY DIRECTOR, MR. ANAND ANGADI, ... PETITIONERS (BY SRI RAJESWARA P. N., ADVOCATE) AND:
1. SRI SEETHARAMA REDDY, S/O LATE RAMA REDDY, AGED ABOUT 62 YEARS, RESIDING AT NO.360, SRI M VISHVESWARAIAH LAYOUT, 3RD BLOCK, BENGALURU-560056 2. THE KARNATAKA MEDICAL COUNCIL VASANTHANAGAR, BENGALURU-560052, REPRESENTED BY ITS PRESIDENT.
... RESPONDENTS (BY SRI G. S. PATEEL, ADVOCATE FOR R1; SRI D.S. HOSMATH, ADVOCATE FOR R2) **** THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 15.9.2018 PASSED BY THE R-2 PRODUCED AT ANNEXURE-A.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ’B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioners have filed the present writ petitions for a writ of certiorari to quash the order dated 15.9.2018 made in KMC/ENQ/No.45/2016 passed by the 2nd respondent – Karnataka Medical Council denying the petitioners to cross-examine the Respondent No.1/complainant.
2. It is the case of the petitioners that the 1st respondent filed a complaint before the 2nd respondent – Karnataka Medical Council to enquire into the allegations of professional negligence against the petitioners. The petitioners filed reply to the complaint inter alia contending that no case of negligence is made out by the 1st respondent/ complainant and prayed the Respondent No.2 – Council to dismiss the complaint. Thereafter the matter was posted for evidence. The 1st respondent filed his affidavit evidence on 14.10.2017, reiterating the averments made in the complaint. The petitioner No.1 filed his affidavit evidence, reiterating the averments made in the reply statement. The petitioner No.2 also filed affidavit evidence on 24.2.2018, reiterating the averments made in the reply. On 14.7.2018, the matter was posted for submission of patient medical records and for cross- examination of Respondent No.1-complainant. As the patient records were not readily available with the petitioner No.2 - hospital, the petitioners sought for accommodation to produce them on the next date of hearing as the cross-examination cannot be conducted without the help of those medical records. The 2nd respondent without providing an opportunity passed the impugned order closing the cross-examination of the respondent No.1 – complainant by the petitioners. Hence, the present writ petitions are filed.
3. When the matter came up before this Court on 15.4.2019, a submission was made by the learned counsel for the petitioners that if the petitioners are permitted, they are ready and willing to cross-examine Respondent No.1 on next date as may be fixed by this Court by paying costs as may be directed by this Court. Recording the said submission, this Court issued emergent notice and stayed further proceedings pending before the 2nd respondent - Council.
4. I have heard the learned counsel for the parties to the lis.
5. Sri P.N. Rajeswara, learned counsel for the petitioners contended that the impugned order passed by the 2nd respondent - Council denying the opportunity to the petitioners to cross-examine Respondent NO.1/complainant on the request made by them to produce certain records, is erroneous and contrary to the records. He would further contend that the 2nd respondent ought to have provided an opportunity since there are serious allegations made against the petitioners. It is further contended that the impugned order passed by the 2nd respondent denying the opportunity to the petitioners to cross-examine the Respondent No.1/complainant is in utter violation of principles of natural justice. As the rights of the parties are involved and as the petitioners want to produce certain medical records, an opportunity ought to have been given.
The same has not been done. Therefore he sought to allow the writ petitions.
6. Per contra Sri G.S. Pateel, learned counsel for Respondent NO.1 sought to justify the impugned order.
7. Having heard the learned counsel for the parties, it is not in dispute that the 2nd respondent – Council initiated proceedings against the petitioners on the complaint made by the 1st respondent. It is also not in dispute that 1st respondent, Petitioner No.1 and petitioner No.2 have filed affidavit evidence on 14.10.2017, 9.12.2017 and 24.2.2018 respectively. When the matter was posted before the 2nd respondent – Council on 14.7.2018 for submission of the medical records and for cross-examination of Respondent No.1, as the medical records were not available with the 2nd petitioner – hospital, the petitioners sought for accommodation to produce the same on the next date of hearing as the same are required to conduct the cross-
examination. The 2nd respondent by the impugned order dated 15.9.2018 proceeded to close the cross-examination of Respondent No.1 by the petitioners on the ground that even after final chance given to the petitioners to conduct cross-examination of the respondent No.1/complainant, they failed to conduct the same. When serious allegations are made against the petitioners and rights of the parties are involved, the 2nd respondent in all fairness ought to have given an opportunity to the petitioners to produce the relevant medical records and to cross-examine Respondent No.1/complainant imposing costs in the interest of justice. The same has not been done.
8. For the reasons stated above, the writ petition is allowed. The impugned order passed by the 2nd respondent – Karnataka Medical Council is hereby quashed. The 2nd respondent – Council is directed to provide an opportunity to the petitioners for cross-examination of the 1st respondent/complainant subject to payment of costs of Rs.10,000/- (Rupees ten thousand only) payable by the petitioners to the 1st respondent on the next date of hearing i.e., 15.6.2019. If the petitioners pay the costs of Rs.10,000/- to the 1st respondent on the next date of hearing, the 2nd respondent – Council shall permit the petitioners to produce the records and cross-examine the 1st respondent/complainant.
9. In view of the peculiar facts and circumstances of the present case, the 2nd respondent shall dispose of the complaint expeditiously subject to cooperation of the parties to the lis in accordance with law.
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JUDGE Gss/-