240/23
Monika Srivastava
The preliminary question in the present case has been raised by the counsel for the OP questioning the maintainability of the complaint as the OP is doctor from Govt. Hospital and was working with a Govt. Hospital at the time when the treatment was undertaken by the complainant. OP has placed reliance on the judgment of IMA Vs. V.P. Shantha AIR 1996 SC 550, in this regard.
Complainant has filed judgment passed by the Hon’ble Apex Court in Union of India Vs. N.K. Srivasta 2020 SCC Online SC 636 wherein the court had left the issue as to whether Safdarjung Hospital was amenable to the jurisdiction of Consumer Protection Act in an appropriate case. Complainant has also filed Kamlesh Moses vs. Safdarjung Hospital passed by Hon’ble Delhi SCDRC decided on 07.08.2007 wherein compensation was directed to be paid by Safdarjung Hospital and in Medical Supt. Safdarjung Hospital Vs. Sudhir Kumar Verma passed by Hon’ble NCDRC on 21.07.2023. Complainant has also placed reliance on the website of OP-2.
In their arguments put forward by OP-1, it is stated that patients of the Govt. Hospitals are not consumers under the Consumer Protection Act as the services hired or availed by them are not for consideration and such services are rendered by the Govt. Hospitals free of charge. In this regard, OP-1 has placed reliance on the fact OP-2 is Govt. hospital and on account of the judgment of the Hon’ble Supreme Court it was held Bar of Indian Lawyers Vs. D.K. Gandhi PS National Institute of Communicable Diseases CA No.2646/2009 decided on 14.05.2024.
“neither the ‘Profession’ can be treated as ‘business’ or ‘trade’ nor the services provided by the ‘Professional’ could be treated at par with the services provided by the Businessman or the Trader, so as to bring them within the purview of CP Act and held that the decision of three judge bench in IMA Vs. V.P. Shantha deserved to be revisited having regard to the history, object, purpose and scheme of the CP Act”.
It is stated that the Hon’ble Supreme Court had left the question of jurisdiction of CP Act as applicable to Govt. Hospitals open in Union of India Vs. N.K. Srivasta 2020 SCC Online 636 and therefore the said case is of no help to the complainant.
As far as Kamlesh Moses Vs. Safdarjung Hospital case is concerned it is stated that the same is improperly cited in the present case as the Kamlesh Moses’ case pertains of Safdarjung Hospital not maintaining requisite apparatus in working order. It is not a case where the line of treatment was faulty or medicine administered by the doctors was not proper.
It is further stated that the case Medical Supt. Safdarjung Hospital Vs. Sudhir Kumar Verma is also not applicable to the present case as the question of ‘consumer’ and ‘service’ was never raised in this case. The matter pertained to the death of the complainant which was a serious issue and in that case the Delhi Medical Council found Safdarjung Hospital guilty of not explaining the prognosis to the relatives of the patients.
This Commission has heard the lengthy arguments put forward by both the parties and gone through the judgments filed on record. The primary question to be determined at this stage is whether the Govt. hospitals/ doctors come within the purview of CPA and therefore whether the present complaint is maintainable.
The question in the present case is whether Govt. Hospitals/doctors fall within the purview of CPA. In view of the judgments passed and the ratio in IMA Vs. V.P. Shantha AIR 1996 SC 550 the case can be maintainable against a Govt. hospital in case any consideration has been paid by the complainant for their treatment.
"Service 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 "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. Service rendered by a medical practitioner or 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 where under 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."
Service rendered at a Government hospital/health centre/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 service would also be "service" and the recipient a "consumer" under the Act»
In the present complaint, complainant was a beneficiary of AB-PMJAY and did not have to pay for the treatment availed of at OP-2 hospital. Therefore, this Commission is of the view that the present complaint is not maintainable against OP-2 as no consideration has been paid by the complainant for the services rendered by OP-2. The question of OP-1 being liable in the present case is also answered in the negative as he was paid a salary by OP-2 and did not receive any consideration for the treatment of the complainant.
Complaint is returned to be filed in appropriate forum. DASTI.
(Kiran Kaushal) (Monika A Srivastava)
Member President
