ORDER

16.04.2024

Ms. Nipur Chandna, Member

1. The present complaint has been filed by Mr. Pawan Kumar Jindal (Complainant) alleging deficiency in service and medical negligence on the part of the Opposite Parties with respect to the treatment of his father.

2. Brief facts necessary for the adjudication of the present complaint are that the father of the complainant were taking the treatment from last 15-17 years from RML Hospital HIV (ART) Department. Since, the facility of HIV (ART) Department commence in OP-3 hospital the father of the complainant used to visit OP-3 for his treatment.  As per the guidelines of government the patient has to undergone various tests time to time such as blood test and Xray and the report of the same was directly submitted to the concerned doctor for further necessary action.

3. On 27.06.2021, father of the complainant suffered a stroke and as such  complainant immediately rush to N K S Hospital for the treatment. NKS hospital conducted the Xray and informed the complainant that there was a lump in the lungs and it can be cancer or TB. It is further stated that the complainant show the Xray dated 08.02.2021 undergone in OP-3 hospital and asked the treating doctor as to whether lump is visible  in the Xray dated 08.02.2021. The doctor of NKS Hospital confirmed that the Xray dated 08.2.2021 also shows lump in the lungs of  patient. As suggested by the doctors of NKS Hospital further MRI  was conducted and it was found that father of complainant is having a cancer that too of last stage and they referred the patient to BLK Hospital for further treatment. It is further alleged that during the treatment his father died on 11.10.2024.

4. It is alleged by the complainant that he approached OP-1 & 2 and asked them why they have not disclosed the fact in respect to the lump visible in the Xray dated 08.02.2021. Both Op-1 & 2 replied that although the HIV (ART) Department is established in the OP-3 hospital but the entire facility is not available.

5. It is alleged by the complainant that his father died due to negligence on the part of OPs , if the OP after the Xray dated 08.02.2021 disclosed the fact that his father is suffering from cancer then he could have been saved him by getting the proper treatment. It is further alleged that the entire act and omission on the part of OP resultant in the death of his father as such , he is entitle for relief claim, hence, this complaint.
6. Notice of the complaint was sent to all the OPs. Despite opportunity OP-2 & 3 failed to appear before this Commission and filed its reply, hence, ordered to be proceeded ex-parte vide order dated 16.05.2023. Reply to the complaint filed by OP-1 in which OP-1 has strongly challenged the maintainability of the present complaint on the ground that a person cannot file a consumer complaint against doctor after getting free of cost treatment from the hospital. It is further prayed that the present complaint be dismissed being not maintainable.

7. OP has strongly challenged the issue of maintainability, hence, needs to be decided first.

8. We have heard the arguments advance at the bar by the complainant and have perused the record.

9. The only question for consideration before us is whether the service rendered by Deep Chand Bandhu Hospital, New Delhi i.e. Government Hospital falls under the Consumer Protection Act, 2019.

10.  To comment on this issue, it is appropriate to see the pronouncement of Apex Court in the case of Indian Medical Association V/s V P Shantha reported in III (1995) CPJ 1 SC, wherein the Apex Court has held that where no charges whatsoever are made by any person and they are given free service, it is no service under Section 2(1)(o) of the Act. But where the service is rendered in government hospital/health centre/dispensary on payment of charges and also rendered free of charges, then it comes within the ambit of service.

11. We further deem it appropriate to refer to the recent pronouncement in Civil Appeal No. 103 of 2012 titled Nivedita Singh Vs. Dr. Asha Bharti & Ors. decided on 07.12.2021, wherein the Apex Court has held as under: “…….. a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 2(1)(o) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services rendered by 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)(0) of the Act.”

12. It is clear from the record before us that the Complainant has not been charged with any fees and the services rendered by the Opposite party no. 1 to 3 to the Complainant was without any consideration. Therefore, applying the above settled law, we are of the opinion that the services rendered by the Complainant cannot be termed as ‘service’ under Section 2(42) of the Consumer Protection Act, 2019. Consequently, the Complainant does not fall within the category of ‘consumer’ as provided by the Consumer Protection Act, 2019.

13. Resultantly, the present Complaint stands dismissed as not maintainable under the purview of Consumer Protection Act, 2019.

14. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  16.04.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER