Delhi

StateCommission

CC/1351/2018

SH. BALDEV RAJ - Complainant(s)

Versus

B.D. CHARITABLE EYE HOSPITAL & ANR. - Opp.Party(s)

10 Jan 2020

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:­­­10.01.2020

                                                                                                              

                                                                   Date of decision:15.01.2020

 

Complaint No.1351/2018

 

IN THE MATTER OF

 

SH. BALDEV RAJ

S/o Late Sh. Babu Ram,

Resident of CA-6B,

Shalimar Bagh, Delhi-110088....Complainant

 

VERSUS

 

B.D. CHARITABLE EYE HOSPITAL,

A-63, Gali No. 20,

Mahindra Park, Jahangir Puri,

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CHADHA EYE CENTRE,

329, Rajdhani Enclave,

Pitampura, Delhi....Opposite Party

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 1.   Whether reporters of local newspaper be allowed to see the judgment?    Yes     

 2.   To be referred to the reporter or not?                                                         Yes

 

Present:         Complainant present in person

                        Sh. Anoop Kumar Kaushal, Counsel for the OP-1

                        Sh. K.G. Sharma, Counsel for the OP-2

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986, the Act, by Sh. Baldev Raj resident of Delhi, for short complainant, against B.D. Charitable Eye Hospital and Chadha Eye Centre hereinafter referred to as OP-1 and 2 respectively, alleging negligence on the part of the OPs they having not done the operation in his eyes properly leading to total damage of one of the eyes and praying for relief as under:-

 

In view of the aforesaid facts and circumstances, it is therefore, most respectfully prayed this Hon’ble Commission may be pleased to direct the respondents to pay a compensation/damages to the complainant to the tune of Rs. 1 crore along with pendentelite and future interest there upon at the rate of 18% per annum from the date of the present complaint till the date of its realisation;

Costs of the present proceedings be also awarded in favour of the complainant and against the respondent.

Such other or further orders as this Hon’ble Commission may deems fit and proper in the facts and circumstances of the present case be also passed in favour of the complainant and against the respondents to meet the ends of justice.

 

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.             The complainant contacted the OP-1 running a free eye check up camp and the OP-1 after examining him observed that there is a cataract in the right eye of the complainant requiring operation. Accordingly complainant was referred to OP-2 for operation in his right eye which operation was conducted on 23.05.2018 and lens was affixed. The complainant visited the OPs for follow up. However 12.06.2018 the OP-1 found that the eye operated upon has the defect developed not curable. Consequently he visited Rohini Retina Foundation on 24.06.2018 but of no avail. Finally he visited the All India Institute of Medical Science on 04.07.2018 where it was opined that the eye is completely damaged. This according to the complainant is the grave negligence on the part of the OPs they having done the operation improperly.
4.             In these circumstances the complainant served a legal notice on the OPs but that having evoked no response this complaint has been filed for the redressal of his grievances.  
5.             This Commission issued show cause notice to the OPs asking them to explain as to why the complaint be not admitted. Both the OPs have separately filed a short note opposing the admission of the complaint on the two grounds, interalia:-

 

1. the complainant is not a consumer within the meaning of Section 2(1)(d) as the treatment was done free of cost, involving no consideration, and thus the complainant is not entitled to raise consumer dispute before this Commission within the framework of Section 2(1)(e), and, secondly,
2. the compensation having been claimed of an amount of Rs. 1 crore plus interest which means, relying on Section 17(1)(a) of the Act, this Commission lacks pecuniary jurisdiction to hear and to dispose of the case.

 

6.             Shorn of superfluities, short question for adjudication in this complaint is whether the complainant is a consumer of the OPs within the meaning of the provisions of the Act as then alone he would be entitled to and eligible for the relief from the consumer forum.
7.             In the first instance I may advert to provisions contained under:-

 

Section 2(1)(d) of the Act

“Consumer means any person who.-

1. Buy any goods for a consideration which has been paid or promised of partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2.  [hires or avails of] any services of a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include person who avails of such services for any commercial purpose];

{Explanation- For the purpose of this clause,” commercial purpose” does not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

Section 2(1)(o) of the Act

“Service” means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

Section 2(1)(g) of the Act

“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

8.             The Hon’ble NCDRC in the matter of Commandant, Base Hospital, Delhi Cantt and ors versus Wing Commander K.K. Chaudhary (Retd.) in RP/3247/2008 decided on 02.02.2009 is pleased to hold as under:-

 

In the light of the Apex Court in Laxman Thamappa Kotgiri vs. G.M. Central Railways and others (Supra) and the judgment of the Apex Court in Indian Medical Association vs. V.P. Santha (1995) 6 SCC 651, there is no merit in the objection taken by the Petitioners/OPs since it is crystal clear that where medical service was rendered as part of terms and condition of service, it would not amount to free service and would constitute service for the purpose of the Act. Further, it was held that “All persons who avail of the services by doctors and hospitals are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail of the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing service free of charges to patient who are not in a position to bear the charges are met out of the income earned who are doctors and hospital from services rendered to paying patients. The government hospitals may not commercial in that sense but on the overall consideration of the objectives the scheme of the Act, it would not be possible to treat the government hospital differently. We are of the view that in such a situation, the persons belonging to poor class who are provided service free of charge are the beneficiaries of the service, which is hired or availed of by the paying class. We are therefore, of the opinion that service rendered by the doctors and hospital irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act. We are further of the view that persons who are rendered free service are the beneficiaries and as such come within the definition of ‘consumer’ under Section 2(1)(d) of the Act. The relevant conclusions are as under:

 

“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)(d) of the Act. Irrespective of the fact that the service is rendered free of charge of persons who do not pay for such service. Free service would also be service and the recipient a consumer under the Act.”

 

9.             Having regard to this discussion I am of the considered view that there exists no cloud on the fact that the complainant is a consumer.
10.             Coming to the second objection of the OPs, I may advert to Section 17(1)(a) of the Act dealing with the subject.

Jurisdiction of the State Commission:- Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

1. to entertain—

1. complaints where the value of the goods or services and compensation, if any, claimed 2[exceeds rupees twenty lakhs but does not exceed rupees one crore]; and

 

11.             At this stage I may refer to the judgement of the Three Member Bench of the Hon’ble National Consumer Disputes Redressal Commission in the matter of Ambrish Kumar Shukla vs. Ferrous Infrastracture Pvt. Ltd. decided on 07.10.2016 in CC no. 97/2016 holding inter alia, as under:-

 

“It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of hte goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to the rendered to the consumer. therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. for instance if a person purchases a machine for more than Rs. 1 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs. 10 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine would determine the pecuniary jurisdiction of the consumer forum. Similarly, if for instance, a house if sold for more than Rs. 1 crore, certain defects are found in the house and the cost of removing those defect is Rs. 5 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs. 1 crore.

 

12.             Coming back to the facts of the case, the compensation claimed with interest being more than one crore, this Commission, relying on the provisions of Section 17(1)(a) of the Act, is handicapped to hear and to dispose of the complaint and if that be the case the complaint is ordered to be returned to file it before the Forum enjoying the jurisdiction therefor.       
13.             Ordered accordingly.
14.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
15.             File be consigned to records.

 

(Anil Srivastava)

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