O R D E R
SRI.D. KRISHNAPPA, PRESIDENT:
The grievance of the complainant against the Op in brief is, that she has married one Manjunath and out of the said wedlock she delivered a male child on 18/05/2009 in Gavipuram Meternity Home by a normal delivery. That herself and her husband since did not wish to have any more child for another 3 to 4 years decided to undergo family planning procedure and consulted Op No.1 who was working in Op No.2 who advised to get Copper-T inserted to prevent pregnancy. That Op No.1 also advised her if she wish to have a child that copper-T could be removed. That on 07/12/2009 she approached Op No.1 in Op No.2 hospital who inserted Copper-T and prescribed tablets. Thereafter for the next 2½ months she did not have her normal menstrual cycle and got distressed. As such visited Op No.2 hospital and informed Op No.1 about her condition. Then Op No.1 conducted necessary check up and told her she was pregnant. Then she shocked by that information told Op No.1 about her family condition about responsibility of taking care of one year child. Then Op No.1 advised her that she could go for abortion in her hospital. She believing Op No.1 got admitted to Op No.1 hospital on 12/03/2010 then Op No.1 conducted abortion on 13/03/2010. Even after such abortion she was suffering from unbearable stomach pain. Then Op No.1 advised her to take x-ray. Then x-ray was done. Op No.1 after seeing the x-ray informed her that abortion done by her was not successful and therefore she got admitted to Vanivilas Hospital on 14/03/2010 and on the same day later on she shifted to Victoria hospital for surgery. Thereafter several examinations, doctors come to the conclusion that Op had done incomplete abortion and she was told to approach the police. The complainant referring to a C-Misc. registered in this regard has alleged that because of Criminal negligence in discharge of duties shown by first Op she was put to hardship and mental agony, had to spend Rs.1,50,000/- towards hospital expenditure in the surgical process and her uterus has been removed. As the result, she could not bear any more child which is pricking her throughout and therefore, has prayed for a direction to Ops to pay her damages of Rs.19.00 lakhs.
2. Op No.1 has filed her version through her advocate admitting this complainant approaching her in the month of December 2009 to avoid future pregnancy and requested necessary medical contraceptives. The complainant at the time suppressed the fact that she had already conceived having forgotten her period timings. That the complainant explained on 07/12/2009 that she had her period 5 days earlier. Then she after collecting history from the complainant and by making necessary enquiry and believing the complainant that she had her menstrual cycle 5 days earlier, she did not do pregnancy test, therefore, subjected the complainant to contraceptive on CU-T. The complainant thereafter never turned up till 12/03/2011. On that day the complainant come to her by telling that she is pregnant despite of CU-T and found fault with her by requesting to abort the pregnancy. The complainant had not disclosed her menstrual period dates but told her to had her period 5 days back missing calculations of her periods time. Even then on 12/03/2010 after examining the complainant she found that the complainant was pregnant of more than 4 months old approximately 18 to 22 weeks. Therefore, she advised the complainant to avoid removal of pregnancy but when the complainant insisted upon for undergoing abortion she admitted the complainant to evaluate whether pregnancy could be terminated or not, having administered induction and abortion medicine, Cytotec to induce expulsion of fetus. There was no positive symptoms of expulsion upon advise even x-ray was taken and found that the condition of the fetus was normal and on 14/03/2010 the complainant was advised to shift to Vanivilas hospital without any complication. Thereafter, the complainant did not turn up and the complainant has not made Vanivilas as party to this complaint. Therefore, the first Op denying the allegations of negligence in treating the complainant has prayed for dismissal of the complaint.
3. Op No.2 has filed version through his advocate contending that he is not a necessary party therefore complaint is liable to be dismissed. Further denying his knowledge of the contents of para 1 and 11 of the complaint denying any deficiency in their service has stated that they appoint qualified doctors who discharge their duties effectively. That the complainant is not a consumer as defined under Consumer Protection Act and denying other allegations stated to had initiated disciplinary proceeding against Op No.1 under Karnataka Service Civil Rules on 12/10/2010 has submitted for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and Ops have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant and Op No.1 are subjected to cross examination. The complainant along with the complaint has produced Xerox copy of receipt for having paid Rs.5/- as out patient charge, copy of discharge summary of Victoria Hospital, copy of wound certificate of Victoria hospital, copy of legal notice she got issued, out patient book issued by Op No.1, Scanning report, receipts issued by Victoria hospital in proof of certain payments made and certified medical bills. Op No.1 has produced copy of enquiry report, MTP register abstract, certificate of Op No.1, case sheet of the complainant, admission register abstract, copy of guidelines for IUD insertion. We have heard the counsel for the complainant and perused the written arguments of counsel for Op No.2 and heard the counsel for Op No.1.
4. On the above contentions, following points for determination arise.
- Whether the complainant proves that she is a consumer as defined under Consumer Protection Act, 1986 ?
- Whether she further proves that Op No.1 without conducting necessary pregnancy test inserted Copper-T to her inspite of the fact that she had conceived as on the date of insertion Copper-T and as the result she suffered abortion and removal of uterus and thereby Op No.1 and 2 are liable to pay damages.
- To what relief the complainant is entitled to?
5. Our findings are as under:
Point No.1 : In the negative
Point No.2: Not answered
Point No.3 : See the final order
REASONS
6. Answer on point No.1: Op No.2 in his version has taken a contention that the complainant is not a consumer as defined under the Consumer Protection Act, 1986 and therefore, the complaint is not maintainable. In the course of arguments, the counsel representing the first Op also submitted that the complainant has not paid any consideration for availing service of Op No.1. Therefore, in the absence of passing of consideration or promised consideration, the complainant cannot become a consumer and therefore, the complaint filed by her is not maintainable. As the material question of law is canvassed by the opponents it is necessary to divert ourselves from the facts to find out whether the complainant has proved that she is a consumer and the complaint filed by her is competent warranting enquiry by this forum.
7. The word consumer is defined U/S 2 (I) & (II) of the Consumer Protection Act, 1986. Section 2 (II) speaks of hiring or availing service by a consumer which reads, that 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 includes any beneficiary services……………..rest is omitted is not very much relevant. Under the definition of the word ‘service’ as defined U/S 2 (1) (O) of the act, a consumer who avails services free of charge such service will not fall within the ambit of the word ‘service’, The learned counsel appearing for the complainant inviting our attention to a receipt issued by second Op dated 07/12/2009 submitted that the complainant has paid Rs.5/- to the second Op and therefore that payment should be construed as consideration for availing service of Ops and thus stated that the complainant has become a consumer and the complaint is sustainable. Where as the counsel appearing for the first Op refuting the said statement of the counsel for the complainant drew our attention to the contents of the receipt which is marked as Ex-P1 and submitted that receipt Ex-P1 contain several heads in which the second OP writing as OPD collected Rs.5/- only which is nothing but Out Patient Department registration fee and not charges for availing other services. Learned counsel also referred to other heads printed on this receipt which refers to certain treatments and tests against which no charges are collected. First Op has also produced out patient registration book. On back wrapper of the book inside the page, the first Op got printed charges that they would levy for certain treatments, surgeries and test and has shown out patient fee as Rs.5/-. Therefore, what is collected from the complainant on 07/12/2009 under Ex-P1 is nothing but out patient fee. The complainant though got the contraceptive inserted and admitted for MTP she has not paid any charges for any of this treatment or services. Hence, Rs.5/- as collected from the complainant by the second Op is not consideration for the service provided to the complainant but it is only out patient charges which is nothing but a registration fee. With this materials placed before us, we find no hesitation to hold that the complainant has not paid any consideration as required under the definition of the word ‘consumer’ for availing service and therefore the complaint filed by her is not maintainable.
8. In support of our view in this regard, we find it relevant to refer to a decision of the Hon’ble National Commission reported in 2010 CTJ page 187 between Chief Executive Officer, Zilla Panchayat and others Vs Suguna Bai Naval Singh Chavan. The Hon’ble National Commission by relying upon the decision of the Hon’ble Supreme Court reported in 1995 CTJ Page 969 between Indian Medical Association Vs V.P.Shanta and others has held that the complainant in that case was not a consumer under Consumer Protection Act, 1986 as tubectomy was performed free of cost. The Hon’ble Supreme Court in Indian Medical Association V/s V.P.Shanta and others cases has held that Govt. Hospital/Nursing Home and Private hospital/Nursing Home who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of service U/S 2 (1) (o) of the act. Payment of token amount for registration purposes only would never alters the position in respect of such doctors and hospitals. Considering the judgment of the Hon’ble Supreme Court and the National Commission referred to above, we are of the considered view that what is paid by the complainant in the form of out patient fee Rs.5/- cannot be under any circumstances he held as charges paid for availing service of Ops. On considering the other materials placed by the complainant and Op No.1 before this forum, we find that there is a triable case to examine the grievance of the complainant to find out whether the complainant has been affected by the alleged negligence of Op No.1 and 2. But we refrain ourselves from going to that aspect and express our view on that point and leave the issue to the complainant’s discretion to take up the matter elsewhere under the law. For the purpose of this complaint, we hold that complainant for the reason assigned above is not maintainable and is liable to be dismissed. Hence, by answering point No.1 in the negative, leave the second point kept open and pass the following order.
O R D E R
Complaint is dismissed as not maintainable under the provisions of Consumer Protection Act, 1986.
