MS. NIPUR CHANDNA, MEMBER

ORDER

14.11.2024

1. The complainant has filed the present complaint alleging the deficiency in service on the part of OPs. In brief the facts of the present case are that, on 19.11.2013 complainant in emergency got admitted in OP1 Hospital for diagnosis of Seizure disorder, swelling on facial region, abdomen pain etc., but she could not recover even after administration of requisite medicine/injection etc. and as such she was hospitalized on 20.11.2013 and further shifted in ward no. 1 of OP1 hospital.
2. It is further stated that during the course of treatment till 03.12.2013, complainant had been undergone various tests, referred to ICU as well as examined by concerned doctor of Gynecologist Department, Surgery Department of OP1 but no one is able to diagnose the infirmity rather negligently handle and administered the medicine to the complainant without proper care resulting in swelling on both hand below elbow, no movement in fingers, discoloration of fingers and compartment syndrome etc. and further cause development of gangrene in her one hand.
3. It is further stated that under the guise of having not required equipment in OP1 hospital vide progress report dated 03.12.2013 OP1 hurriedly shifted the complainant to LNJP Hospital, the said hospital further referred the complainant to RML Hospital and the RML Hospital refused to admit the complainant and as such again referred to OP1 Hospital.
4. It is further stated that on the advice of OP2 & 3 the complainant in emergency referred to OP4 Hospital for further treatment. On 03.01.2014, for hiding the negligence in treatment of the doctors of OP1 complainant left arm above the elbow was amputated , as the same has been poisoned.. It is further stated that on enquiry from the doctors of OP4 husband of the complainant came to know that complainant was not treated properly and suffered the amputation only because of the medical negligence of the doctors of OP1,2 & 3.
5. Being aggrieved by the wrongful treatment complainant served legal notice dated 12.11.2014 upon OP but OP neither replied to the legal notice nor had complied the same. Being aggrieved by the amputation of left arm on account of medical negligence by OP1 doctor and OP2,3 & 4,

complainant approached this Commission for redressal of her grievance.

6. Notice of the complaint was duly served upon all the OPs. OP1,2 & 3 filed their joint written statement thereby denying any medical negligence on their part.  The OP1,2 & 3 had taken the preliminary objection that OP1 Hospital provide free medical treatment to the patient, hence, the complainant does not fall under the definition of consumer and as such the present complaint is not maintainable and be dismissed on this ground. Beside this OP had denied the averments made in the complaint and further stated that OPs have followed due care and medical procedure in the treatment of the complainant and as such no case of medical negligence qua OP. It is further stated that complainant failed to place on record any documentary evidence to prove the case of medical negligence and as such the present complaint be dismissed being devoid of merits.
7. Despite opportunity neither OP4 appeared nor filed its written statement as such OP4 was ordered to be proceeded ex-parte vide order dated 01.02.2018 of Ld. Predecessor Bench.
8. Rejoinder to the written statement of OP filed thereby denying the averments made in the written statement.
9. Sh. Krishan Kumar, Power Attorney Holder of complainant filed his evidence by way of affidavit on behalf of complainant.  Dr. P.S. Nayyar Medical Superintendent of OP1 hospital filed his evidence on behalf of OP1,2 & 3.
10. Written arguments filed by complainant and OP1,2 & 3. We have heard the arguments advance at the bar by Ld. Counsel for OP Sh. Ankit Gupta who has forcefully challenged the maintainability of the  present complaint, hence, this needs to be decided first.
11. The complainant filed present complaint against OP1doctor of Baba Saheb Ambedkar Hospital which is a government run hospital. The complainant alleged that she is the consumer under section 2 (7) of CP Act, 2019. The law is well settled by apex court in the judgment of Indian Medical Association Vs. V.P Shantha 1996 AIR 550. It was held as under:-
12. On the basis of above discussion we arrive at the following conclusions.

1. Services rendered to a patient by a medical practicitioner except where the doctor renders service free of charge to every patient or under a contract  of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in section 2 (1) (o) of the Act.
2. The facts that medical practitioners belong to the medical profession and are subject to the disciplinary control of the medical council of india and/or state medical councils constituted  under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
3. A ‘contract of personal service’ has to be distinguished from a ‘contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the services rendered by medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a ‘contract for personal service’ and is not covered by exclusionary clause of the definition of ‘service’ contained in section 2 (1)(o) of the Act.
4. The expression ‘contract of personal service’ closed in section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in section 2(1)(o) of the Act.
5. Services rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be “services” as defined in section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at hospital/nursing home would not alter the position.
6. Services rendered at non-government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service-is outside the purview of expression ‘service’ as defined in section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
7. Services rendered at a non-government hospital/nursing home where charges are required to be paid by the person availing such services falls within the purview of expression ‘service’ as defined in section 2(1)(o) of the Act.
8. Services rendered at non-government hospital/nursing home where charges are required to be paid by the persons who are in position to pay and person who cannot afford to pay are rendered services free of charge would fall within the ambit of expression ‘service’ as defined in section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in position to pay for such services. Free service, would also be “service” and the recipient a “consumer” under the Act.
9. Service rendered at a government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service- is outside the purview of the expression ‘service’ as defined in section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
10. Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free serviced would also be “service” and the recipient a “consumer” under the Act.
11. Service rendered by a medical practitioner of hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in section 2(1)(o) of the Act.
12. Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under section 2(1)(o) of the Act.

13. Now applying the above principle of law in the present facts and circumstances of the case, the OP1 hospital is a government hospital and covered with the clause (9), wherein it is specifically held that if no charges whatsoever made from any person availing the services and all patients (rich and poor) are given free service- is outside the purview of the expression ‘service’. In the present case the complainant has not alleged that she has paid any charges for treatment at OP hospital. Therefore, the service rendered by OP hospital is not covered within the expression service. Therefore, present dispute is not a consumer dispute.
14. On the basis of above observation and discussion the present complaint is not maintainable, therefore, dismissed.
15. File be consigned to record room.
16. 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 the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.

     Sanjay Kumar                  Nipur Chandna                      Rajesh       

        President                                   Member                         Member