<br /> <br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is an application for hearing question of maintainability as a preliminary issue.<br /> <br /> The averments in the petition is that the complainant is not a consumer and there is no consumer relationship between the complainant and the opp.party as the complainant has availed of service from the opp.party free of charge which is excluded from service as defined in section 2 [1] [o] of the Consumer Protection Act. The complainant in this complaint has undergone a surgery at the Govt. Hospital, Karunagappally and the complainant had availed the services of the opp.party free of charge. Therefore, the complainant is not a consumer within the meaning of Sec. 2 {1][d] of Consumer Protection Act. Therefore, the petitioner prays to dismiss the complaint as the same is not maintainable before this Forum.<br /> <br /> The opp.party did not filed any objection to the petitioner. Though this complainant was filed as early as on 1.6.2005 the same was dismissed for none prosecution and finally it was restored to file again on 28.4.2008. <br /> <br /> Point for consideration :<br /> <br /> Whether the complaint is maintainable or not?<br /> <br /> Point<br /> <br /> It is not disputed that the complainant had undergone a surgery at the Govt. Hospital, Karunagappally, and the surgery was performed by the opp.party. Definite contention of the petitioner is that the complainant/respondent had availed the service of the opp.party at the Govt. Hospital, Karunagappally absolutely free of charge and therefore the complainant is not a consumer within the meaning of Sec. 2 [I] [d] of the Consumer Protection ActSec. 2 [1] [o]service…. As a matter of fact the complainant/respondent has not produced even a scrap of paper to show that he has availed the services of the opp.party by paying any fee. Though there is an averments that he had paid Rs.800/- to the opp.party for such a payment also, there is no material, worth believable. In Smt. Bitony and another V/s.Dr. Satya Narain Chauhan, MBBs and another 2007 [1] CPR 512 the National Commission has held that the treatment in a Govt. Hospital by a Govt. Doctor free of charge the Doctor cannot be held liable The dictum of the decision is that Medical negligence against a doctor of Government Hospital is not actionable under the Consumer Protection Act as it was free of charge. As pointed out earlier, there is no material, worth <br /> believable to show that the complainant/respondent has paid any amount towards the charges for treatment or towards the fee for the Doctor who has performed the surgery. Therefore, in the light of the decision of National Commissioner referred to above we hold that the complainant is not maintainable before this Forum. Point found accordingly.<br /> <br /> <br /> <br /> <br /> In the result the petition is allowed, and the complaint is hereby dismissed holding that the complaint is not maintainable before this Forum. No cost. <br /> <br /> <br /> <br /> Dated this the 14th day of July, 2008.<br /> <br />