Delhi

South Delhi

CC/47/2022

PRAGYA - Complainant(s)

Versus

DR NEERAJ AGGARWAL - Opp.Party(s)

PRADEEP KUMAR AND VISHAL CHOUDHARY

23 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

 

Case No.47/2022

Smt. Pragya

W/o Shri Vikas Rai

R/o. 337/21-C, Master Mohalla

Tuglakabad Village,

New Delhi-110014

 

….Complainant

Versus

 

1. Dr. Neeraj Aggarwal
2. Mrs. Aggarwal

W/o Dr. Neeraj Aggarwal

Both at M/s Aggarwal Medical Centre

E-234, Gate No.2, Greater Kailash Part-1,

Near Kailash Colony Metro Station,

M Block Market, Near Mata Gujri Public School

New Delhi110048

 

 

       ….Opposite Parties

    

 Date of Institution    : 28.02.2022      

 Date of Order            : 23.01.2023     

 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

 

Member: Sh. U.K. Tyagi

 

Complainant has made a request to pass an award directing Dr. Neeraj Aggarwal and Mrs. Aggarwal (hereinafter referred to as OP-1 & OP-2 to pay compensation etc.

In view of said complaint, the OP filed its written statement. Meanwhile, he moved an application challenging the complainant being a ‘consumer’ under the Consumer Protection Act, 2019

The applicant vide its application dated 01.08.2022 under Order VII Rule 11 of CPC 1908 has submitted the following points to buttress his contention that the complainant is not covered under the definition of ‘Consumer’ as provided in  Section 2(7) (ii) of C.P Act, 2019.

1.      The complainant, on account of her pregnancy, was admitted, to M/s Agarwal Medical Centre/Hospital on 22.09.2020.

2.      The Complainant was brought to the Centre in  emergency condition. Under the prevailing condition of Covid-19, she did not find bed in any other hospital so, landed at M/s Agarwal Medical Centre.

3.      The complainant gave birth  to a child on 22.09.2020 and discharged on 24.09.2020. As such, the complaint is barred by law.

4.      The applicant did not charge fees for the treatment at the said centre.

5.      He contended that under Section 2(7) (ii), she cannot be termed as Complainant/Consumer under the provision as laid down in Section 2(7) (ii) of CP Act, 2019. The said provision is reproduced here as under;-

 

“ hires or avails of any service 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 service 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 a person who avails of such service for any commercial purpose.” 

 

6.   As per Section 2(42) of said Act “ Service means service of any description which is made available to potential users- but does not include the rendering of any service free of charge.”

7.   He also stated that the complainant has not adduced any proof of fees paid with the complaint.

It is evident from the above discussion that the complainant has not paid any amount/fees for the services availed at the above centre. As per provision of CP Act, the consideration is an important component of the definition of Consumer. As such, the complaint is liable to be dismissed in the first sight.

The complainant filed its reply to the said application under order VII Rule 11 of CPC -1908 and resisted the application on the following grounds:-

(i) The complainant has given Rs.50,000/- towards cost of surgery.

(ii) He further mentioned the case of V. Krishna Rao Vs Nikhil Super Speciality Hospital where Hon’ble Supreme Court has  invoked the doctrine of  res ipsa loquitor. As per the said doctrine, where the facts prove itself, there is further no requirement to  examine/re-examine the case.

(iii) He also stated that the applicant has categorically admitted to this effect that he has economic transaction of Rs.1,70,000/- with the complainant and her relative to save his life from complainant. This very fact goes to establish that there was some transaction in the matter. Hence, application is devoid of merit and should be dismissed.

This  Commission has gone into entire material placed on record and the provision of Section 2(7) (ii) were also examined minutely with respect to the facts of the case.

Under Sub-Section (ii) of Section 2(7) of the Act, a consumer for the purpose of service means any person who-

(a) hire or avails……for consideration….

(b) includes….

(c) does not include

It emerges from the above definition that the consideration is an important component whether it is paid at the time of availing/hiring the services or delayed.

The word “hires or avails of any services” occurring in Clause (ii) of Section 2(7) shows that the term ‘hire’ has also been used therein in the sense of avail or use of the service.

The terms ‘hire’ has not been defined in the Act. According to the Concise OXFORD Dictionary, hire means “employ person for wages or fees.”         

In Collins English Dictionary- hire has been defined as “to acquire the temporary use of a thing or service of a person in exchange of payment.

The above goes to establish this fact that consideration is an important component of the availing/hiring the services as laid down in the provisions of Section 2(7) (ii) of Complainant Act-2019.

The definition of the term ‘Consumer’ given in sub-section 7 of Section 2 is comprehensive one so as to cover not only consumer of goods but also consumer of “service.”

The term consideration has not been defined in the Act.

However, Section 2(d) of Indian Contract Act, 1872 defines ‘consideration’ as follows;

“When at the desire of the promisor , the promise or any other person has done or abstained from doing or  does or abstains from doing, or promises to do or to abstain from doing, something, such  art or abhorrence  or promise is called consideration for the promise.”

In  Sonia Bhatia Vs State of UP (1981)2 SCC 585 and Nivedita Singh Vs Asha Bharti Civil Appeal No. 103/12 decided on 07.12.2021, it was held by the Hon’ble Supreme Court that consideration means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transfer to transferee

Considering that consideration is an important component in the definition of Consumer, therefore , we  are of the  considered opinion that the complainant is not a consumer as per provision of CP Act, 2019. The application of the OP is accepted.

In view of the acceptance of the application as narrated above, the complaint  does survive. Hence the same is dismissed.

Copy of this order be given dasti to the parties and order be uploaded on the website.