Appeared at the time of arguments

For Complainants          : Mr. Anupam Srivastava, Advocate

                                       Mr. Nihari K. Ahluwalia, Advocate

                                       Mr. Arpit Sharma, Advocate

                                       Mr. Ujwal Malhotra, Advocate 

For OPs                          : Mr. Anuj Jain, Advocate for OP-1

                                       Mr. Maibam N. Singh, Advocate for OP-3

                                       Mr. Shaurya Sahay, Advocate for OP-4

                                       None for remaining OPs

Pronounced on: 27^th February 2023

ORDER

1.       When the learned Counsel for the Complainant commenced his arguments, the learned Counsel for the OPs raised an objection that there is a question of maintainability of the instant Complaint under the Consumer Protection Act, 1986 (for short, the ‘Act’), which is to be heard initially.

2.       Heard the arguments on maintainability from the learned Counsels from both the sides.   

3.       The learned Counsel for the AIIMS (OP-1) submitted that in the written version preliminary objection was raised on the maintainability of the instant complaint. He submitted that AIIMS is a Govt. Institute and provide free services to all the patients. The doctors (OPs- 2 to 7) were working there, had not been paid any charges (fee) by the Complainant and / or the doctors had also not received any consideration from the patient. The doctors rendered their services in AIIMS, being in employment of OP-1 Hospital. The learned Counsel relied upon the recent judgment of the Hon’ble Supreme Court in the case of Nivedita Singh vs. Dr. Asha Bharti & Ors.[1].

4.       The learned Counsel for the Complainant submitted that the services of AIIMS are not totally free. He relied upon the judgment of Hon’ble Supreme Court in the case of Indian Medical Association Vs. V.P. Shantha & Ors.[2]. He submitted that it was the decision of larger Bench, whereas Nivedita Singh’s case (supra) was decided by a Bench of two Judges, therefore, it is not applicable in the instant case. He brought my attention to the relevant observations made in the para 55 of V.P. Shantha’s judgment.

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(9) Service rendered at a government hospital/health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

10) Service rendered at a government hospital/health centre/ dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(a) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act. 

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act. 

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5.       The learned Counsel for the Complainant further submitted that his wife (Rajbir Kaur) was working as a Sister – Grade II, an employee of AIIMS. She was monthly contributing Rs.  60/- towards employer insurance scheme and Rs. 325/- employer health’s scheme, therefore, she was a Consumer. For the instant submission, he relied upon the decisions of Hon’ble Supreme Court in the case of Laxman Thamappa Kotgiri vs. G.M., Central Railway and Ors.[3] and Kishore Lal vs. Chairman, Employees State Insurance Corporation[4]. Therefore, relying upon the above precedents, the instant Complaint is maintainable under the Act.

6.       After my thoughtful consideration and going through the precedents of Hon’ble Apex Court. In my view, in the Nivedita Singh’s judgment, the Hon’ble Supreme Court made a reference to the V.P. Shantha’s case and recorded following findings:

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) 3 (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

7.       Therefore, I respectfully follow the latest view of Hon’ble Supreme Court that the instant Complaint is not maintainable under the Act, 1986, as the doctors working in AIIMS were employee, continued to be services rendered free of charge, would be outside the purview of Section 2(1)(o).  The AIIMS is the entity, therefore, to attribute medical negligence, this Commission has to adjudicate on alleged deficiency in services or failure of duty of care of the doctors therein. However, those doctors are outside the purview of Section 2(1)(o) of the Act, 1986.

8.       Based on the discussion above, the instant Complaint is not maintainable, hence dismissed.