BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 326/2005 Filed on 26.09.2005

Dated : 16.11.2009

Complainant:

Bhadrakumaran Nair, S/o Chellappan Pillai, residing at Keezhminnamcode Roadarikathu Veedu, Minnamcode, Peyad P.O, Thiruvananthapuram.

(By adv. V.N. Gopalakrishnan Nair)

Opposite parties:

1. Government of Kerala, represented by the Chief Secretary, Thiruvananthapuram.

    

2. The Director, Directorate of Medical Education, Thiruvananthapuram.

    

3. The Superintendent, Medical College Hospital, Thiruvananthapuram.

(By adv. Paraniyam Devakumar)

This O.P having been heard on 06.10.2009, the Forum on 16.11.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The facts of the complaint are as follows: The complainant who is an autorikshaw driver was attacked by some antisocial elements on 21.10.2003, as a result of which he sustained severe injuries and he was immediately taken to Medical College Hospital at the casualty unit. But due to the negligent attitude of the doctors, the cut injury to biceps muscles was not noticed and suturing of skin alone was done and the complainant was discharged on 22.10.2003 itself referring him to Government Primary Health Centre, Malayinkil for continued treatment. Even after a long period of treatment complainant's left hand could not regain strength. Further the condition of his left hand worsened day by day and it became virtually unfit for any use. Hence the complainant went to the Medical College Hospital on 07.06.2004 and appraised the concerned doctors of the situation. After examination the complainant was referred to Plastic Surgery Department vide referral O.P. Card No. 86956 dated 07.06.2004. Doctors of Plastic Surgery Department, after examining the complainant, opined that since 9 months have elapsed the Biceps Muscles belly is retracted to upper left arm and hence cannot be cured at this stage by plastic surgery. Hence the doctors of Plastic Surgery Department referred the complainant to Physical Medicine for Physiotherapy treatment vide referral O.P. Card No. 87389 dated 09.06.2004. Doctors of Physiotherapy Department also opined that the biceps muscles have retracted to upper half of arm and hence the defect cannot be cured completely. Thus due to the negligence of the Doctors of Medical College Hospital, the wounds were not properly treated in time and hence complainant's left hand has become incurably disabled resulting in permanent total disability to his left arm. The above said conduct of the doctors on duty at the Medical College Hospital, Thiruvananthapuram on 21.10.2003 who have treated the complainant on the said date tantamount to gross negligence in duty and deficiency in service. Hence this complaint has been necessitated.

The 3^rd opposite party has filed version for and on behalf of other opposite parties also contending as follows: The complaint is not maintainable and the complainant is not a consumer under the purview of the Consumer Protection Act. Generally no doctors acted in a negligent manner when the patient was taken to the casualty in the hospital. There was no negligence from the part of doctors who treated the complainant and hence the doctors are not liable to pay compensation to the complainant on that account. The complainant has claimed a fancy claim against opposite parties without any basis and the complainant is not entitled to get any relief as prayed in the complaint. Further the opposite parties have stated that without perusing the medical records, they cannot answer the allegations in the complaint and hence has prayed for filing additional version after perusing the entire medical records.

Complainant has filed affidavit in lieu of chief examination and has been examined as PW1, marked Exts. P1 to P6. Opposite parties have no evidence.

The points to be decided as per the contentions raised are:-

1. Whether the complainant would come under the definition of consumer as stipulated in the Consumer Protection Act?

2. Whether there is any negligence on the part of the opposite parties?

3. Reliefs and costs.

Point (i):- The complainant has alleged negligence of the doctors of Medical College Hospital. Though the complainant has sworn in his affidavit that he has incurred an expense of Rs. 25,000/-towards treatment, the complainant has not produced any document in support of the same.

As per Sec. 2 (d) (ii) a consumer means “any person who hires or avails of any services for 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 availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

[Explanation: For the purpose of this clause, "commercial purpose" does not include use by a 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;]

Accordingly, whether the complainant has availed the service of opposite parties for consideration is the aspect to be considered at this juncture. Nowhere in the complaint it is seen pleaded that, the complainant had hired the service of the opposite parties by paying any consideration. As PW1, the complainant has deposed that “വീണ്ടും ഞാന്‍ Medical College-ല്‍ പോയി. ചികിത്സയ്ക്ക് വേണ്ടി ഞാന്‍ ഒരു പൈസയും മുടക്കിയിട്ടില്ല ”. Furthermore, the complainant has no case that in the opposite parties' hospital services are rendered on payment of charges. The Hon'ble Supreme Court in Indian Medical Association Vs. V.P. Shanta 1995(3) CPR 412(SC) has ruled that, “where services are rendered at a government hospital on payment of charges and also free of charges, the free service also comes under 'service' as defined in Sec. 2 (1) (o) of the Act and the person availing of such service is 'consumer' within the meaning of the Act, entitled to file complaint thereunder”. As there is no pleading to that effect also in the complaint and since the complainant has not adduced any evidence to be included in the same exception, the above ruling also cannot be applied in this case. The Hon'ble Supreme Court has further held in the very same ruling that “free medical service rendered by a medical practitioner and also the service rendered at a Government or non-Government hospitals/health centre/dispensary/nursing home where no charge whatsoever is made from any person availing the service is outside the purview of the Act. The payment of a token amount for registration purpose would not alter the position”.

In view of the above discussions, we are of the view that the complainant is not a consumer as envisaged in the Consumer Protection Act. This Forum could entertain the complaint only if the complainant is a consumer. Hence, other issues require no consideration.

In the result, the complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of November 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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O.P. No. 326/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Bhadrakumaran Nair

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of FIR dated 22.10.2003.

P2 - Copy of referral O.P. Card No. 86956 dated 07.06.2004 of

MCH, Tvpm.

P3 - Copy of O.P. Ticket No. 944 dated 04.11.2003 of Govt.

Primary Health Centre, Malayinkil.

P4 - Copy of Treatment Certificate dated 17.11.2003 issued by

Govt. Primary Health Centre, Malayinkil.

P5 - Copy of O.P Card dated 21.10.2003 of MCH, Tvpm.

P6 - Copy of referral O.P. Card No. 87389 dated 09.06.2004 of

MCH, Tvpm.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT