BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No.212/2002

Dated: 15..07..2009

Complainant:

Soudamini, Kodiyilkonam Puthen Veedu, Kurisadimukku, Kariavattom, Pangappara, Thiruvananthapuram.

(By Adv. Anithas Jacob)

Opposite parties:

1. Govt. of Kerala, represented by its Chief Secretary, Thiruvananthapuram.

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

3. Dr. Kesavan Nair, Professor of Orthopaedics, Medical College Hospital, Thiruvananthapuram.

4. Dr. Renny Nepoleon, Senior Lecturer in Surgery, Medical College Hospital, Thiruvananthapuram.

   (By Adv. A. James Fernandez)

5. Dr. Jayasekhar, Consultant Plastic or Reconstructive Surgeon, Cosmopolitan Hopspitals (P) Ltd., Thiruvananthapuram.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 05..08..2004, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..05..2009, the Forum on 15..07..2009 delivered the following:

ORDER

SMT. BEENA KUMARI. A., MEMBER:

Brief facts of the case are as follows:

The complainant in this case is a Tailor. On 16/4/2001 while she was walking along the Kazhakkuttom N.H Road through the footpath, an autorickshaw knocked her down and due to its heavy impact she was thrown on the road and sustained serious injuries. Immediately after the accident she was taken to the Medical College Hospital, Thiruvananthapuram where she had undergone the treatment as I.P No. 96765 of the 3^rd and 4^th opposite parties. Her wounds were sutured and she also received an injection on voler side of her wrist on the radial aspect and thereafter she was discharged on 28/4/2001. After a few days, there developed severe pain, discolouration and swelling on her right index finger and thumb for that she consulted the 5^th opposite party and was admitted at Cosmopolitan Hospital, Thiruvananthapuram on 9/5/2001. The treatment of the 5^th opposite party continued till 23/5/2001. The complainant after 1 ½ months, again developed severe pain on the tip of the right index finger and approached the 5^th opposite party on 10/7/2001. On the same day, the gangrenuous infected tip of right index finger was amputated. The complainant alleges that due to the wrong course of intra arterial injection by the opposite parties 3 & 4 in a negligent manner resulted in the amputation of the tip of her right index finger and damage of thumb. The complainant sought the service of opposite parties 3 & 4, who are the experts in the field of Orthopaedics, and was having utmost good faith in them. But quite contradictory to the legal obligations and ignoring the professional ethics they treated the complainant in a negligent manner and thereby spoiled her life. The complainant further states that her right index finger was very much required for her to conduct the tailoring profession which was her sole livelihood and on account of the opposite parties' negligent action she is being put to irreparable loss and hardships. Hence she claimed Rs.4,00,000/- as compensation from opposite parties 1 to 4.

2. In this case the 4^th opposite party only contested the case, others remain ex-parte. Contending the case the 4^th opposite party filed version. In the version he denied the entire allegations in the complaint. The 4^th opposite party has stated that the allegation that the complainant had undergone the treatment as inpatient by the 3^rd & 4^th opposite parties are false. The 4^th opposite party was in the casualty where he had examined the complainant as preliminary and emergency examination. As the patient was old, aged and weak, he advised ECG to be taken, which was within normal limits and the head injury to be sutured in casualty. C.T Scan of the head was also advised by him. He advised the patient to be admitted in ward. He did not advise for any injection and no injection for expert management in General Surgery Department the 4^th opposite party was never consulted nor she was treated by him. Thereafter the complainant did not consult Medical College Hospital nor complained to the 4^th opposite party till date. Admittedly, she was treated in a different hospital, by other doctors. The 4^th opposite party is in no way liable for the consequences of the treatment done in other hospital. There was no deficiency of service in Medical College Hospital for which 4^th opposite party can be held liable. Hence 4^th opposite party prayed for the dismissal of the complaint.

3. In this case the complainant has filed proof affidavit, examined her as PW1 and she has produced 9 documents. The 4^th opposite party cross examined the complainant. The 4^th opposite party adduced evidence as DW1 and has been cross examined by the complainant. Other opposite parties are ex-parte.

4. Points that would arise for consideration are:

1. Whether the complainant in this case is a consumer as per the Consumer Protection Act?

2. Whether there is deficiency in service or negligence from the side of opposite parties?

3. Reliefs and costs?

    

    

5. Points (i) to (iii) : In this case the complainant alleges that due to the negligent treatment of the opposite parties 3 & 4 she has lost her right index finger and damaged her thumb and thereby lost her earning capacity. The complainant claimed compensation against the opposite parties 1 to 4. The 3^rd & the 4^th opposite parties are employees of the 1^st & 2^nd opposite parties hence complainant argued that 1^st & 2^nd opposite parties are vicariously liable to the negligent and faulty service of the 3^rd and 4^th opposite parties. Complainant has no case against the 5^th opposite party. In this case complainant has produced 9 documents in support of her contentions. Ext.P1 series are the copies of the medical bills of purchase of medicines. Ext.P2 is the copies of bills issued by the Cosmopolitan Hospital. Ext.P3 is the payment slip of Dhanwanthari Centre. Ext.P4 is the bill issued by the Regional Cancer Centre for CT Scan. Ext.P5 is the copy of receipt issued by ITTYAVIRAH SCAN of Research Centre. Ext.P6 is the copy of discharge summary issued by the Cosmopolitan Hospital. Ext.P7 is the copies of coupons issued by the Hospital Development Society and copies of payment receipts. Ext.P8 is the copy of F.I.R of the accident. Ext.P9 is the copy of O.P Ticket of Medical College Hospital, Thiruvananthapuram. From this document we can see that the complainant was admitted in the hospital on 16/4/2001 and discharged on 28/4/2001 and the treatments have been done by opposite parties 3 & 4.

6. Before coming into the merits of the case we have to ascertain whether the complainant in this case is a consumer, whether the services of the opposite parties 3 & 4 have been availed for consideration as per the Consumer Protection Act. As per Sec 2(d)(ii) of the Act, “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]. In order to be a consumer for the purpose of service, it is necessary that the services must have been hired or availed of for consideration. In this case the complainant has no evidences and pleadings to show that she has availed the services of the opposite parties 3 & 4 for consideration. In Indian Association Vs. Shantha & Oths., cited in 1995(III) CPR 412 (SC), the Hon'ble Supreme Court finds that free medical services rendered by a Medical Practitioner and also the service rendered at a government or non-government hospital/health centre/dispensaries/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. From the foregoing discussions we find that the complainant in this case is not a consumer as per Sec 2(d)(ii) of Consumer Protection Act. Hence there is no need to consider other issues. Since the Forum could entertain the complaint only if the complainant is a consumer as per the Consumer Protection Act.

In the result, complaint is dismissed. No 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 15^th day of July, 2009.

BEENA KUMARI.

MEMBER.

G.SIVAPRASAD, PRESIDENT.

S.K. SREELA, ad. MEMBER.

O.P.No.212/2002

APPENDIX

I. Complainant's witness:

PW1 : Soudamini

II. Complainant's documents:

P1 : Copy of cash bill dated 10/7/2001

P1(a): “ dated 2/7/2001

(b): “ dated 23/6/2001

(c): “ dated 10/6/2001

(d): “ dated 18/6/2001

(e): “ dated 28/6/2001

(f): “ cash bill dated 24/6/2001

(g): “ dated 28/5/2001

(h): “ dated 26/5/2001

(i): “ dated 23/5/2001

(j): “ dated 23/5/2001

(k): “ dated 13/5/2001

(l): “ dated 11/5/2001

(m): “ dated 9/5/2001

(n): “ dated 6/5/2001

(o): “ dated 5/5/2001

(p): “ dated 3/5/2001

(q): “ dated 30/4/2001

( r): “ dated 28/4/2001

(s): “ dated 28/4/2001

(t): “ cash receipt dated 29/4/2001

(u): “ cash bill dated 27/4/2001

(v): “ dated 26/4/2001

(w): “ dated 24/4/2001

(x): “ dated 22/4/2001

(y): “ dated 22/4/2001

(z): “ dated 20/4/2001

a(1) : “ dated 20/4/2001

a(2) : “ cash bill dated 19/4/2001

a(3) : “ dated 16/4/2001

P2

series: Copy of In-patient bill dated 11/5/2001 and credit bill dated 22/5/2001 to 25/7/2001 (17 pages)

P3 : Copy of receipt dated 24/4/2001 for Rs.50/-

P4 : Copy of receipt for Rs.1,350/- issued by Regional Cancer Centre, Tvpm.

P5 : Copy of receipt No.2908 dated 26/4/2001 for Rs.700/-.

P6 : Copy of discharge summary dated 11/5/2001

P7 : Copy of coupon serial No.37711, 31058 & 52001

P8 : Copy of FIR dated 17/4/2001 No.107/01 of Thiruvananthapuram Rural Police Station, Kazhakkuttom.

P9 : Copy of out patient ticket dated 16/4/2001

III. Opposite parties' witness:

DW1 : Dr. Renny Napoleon

IV. Opposite parties' documents: NIL

PRESIDENT