BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 94 of 2016
Date of Institution: 25.02.2016
Date of Decision: 09.06.2016
Mehal Singh son of Shri Jhanda Singh, resident of Village: Jhunj, P.O: Bhindi Saidan, Tehsil Ajnala, District Amritisar.
Complainant
Versus
Dr.Suman Kumar, Medical Officer, Civil Hospital, Ajnala.
Opposite Party
Complaint under section 12 & 13 of the Consumer Protection Act.
Present: For the Complainant: Sh.Manjit Singh , Advocate
For the Opposite Party: Sh. Rupesh Mahendru, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Mehal Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 for the grant of compensation to the tune of Rs.2 lacs for committing negligence in conducting operation of the right eye of the complainant by Opposite Party-Dr.Suman Kumar, Medical Officer, Civil Hospital, Ajnala. Upon notice, Opposite Party appeared, but instead of filing the written reply to the complaint, an application for dismissal of the complaint was filed on behalf of the Applicant-Opposite Party on the ground that the complainant has filed the false, frivolous and baseless complaint. It is admitted that the Applicant-Opposite Party is posted as Medical Officer in government hospital. As a person who avails facility of medical treatment in government hospital is not a consumer and no complaint is maintainable before this Forum under the Consumer Protection Act. This Forum has got no jurisdiction to entertain, try and decide any complaint against Medical Officer in government hospitals, as such in view of the above referred facts and circumstances the present complaint is legally not maintainable before this Forum as the Respondent/ Complainant is not a consumer qua the Applicant-Opposite Party and same may be dismissed accordingly.
2. Upon notice, the Respondent/ Complainant contested the application by filing reply to the application, in which the allegations made in the application have been denied. It is denied that the Respondent/ Complainant has filed the false, frivolous and baseless complaint against the applicant/ Opposite Party on the basis of false and baseless allegations. It is further stated that respondent/ Opposite Party is posted as Medical Officer at Civil Hospital, Ajnala as stated by the Respondent/ Complainant in the complaint itself . It is denied that the District Forum has got jurisdiction to entertain, try and decide the complaint against any doctor posted as Medical Officer in government hospitals. It is denied that as a person who avails facility of medical officer in government hospital is not a consumer and no complaint is maintainable before the Consumer Fora under the Consumer Protection Act and a prayer for dismissal of the application is made.
3. We have heard the ld.counsel for the parties and minutely gone through the record on file.
4. Ld.counsel for the Respondent/ Complainant has vehemently contended that the Respondent/ Complainant is proved to be a ‘consumer’ under section 2(1)(O) of the Consumer Protection Act. The Respondent/ Complainant took the treatment and got his right eye operated from Applicant-Opposite Party at Civil Hospital, Ajnala. But however, due to the negligence and deficiency in service on the part of Applicant-Opposite Party, the surgery of the right eye of the Respondent/ Complainant was unsuccessful. It makes no difference if the negligent doctor is government employee or not, rather in the instant case, Applicant-Opposite Party has also charged free from the Respondent/ Complainant for conducting the operation. As such, relationship of ‘consumer’ and ‘service provider’ exists inter se parties. Ld.counsel for the Respondent/ Complainant has placed reliance upon the ruling of Hon’ble Supreme Court of India titled as V.Krishnakumar Vs. State of Tamil Nadu & Ors. 2015(4) Law Herald (P & H) 2853 (SC) wherein the compensation was awarded not against the negligent doctor, but the State also was held vicariously liable for the negligence of its doctors/employees and the patient was held to be a ‘consumer’ inter-se government hospital as well as its doctors. Further reliance has been placed upon Pravat Kumar Mukherjee Vs. Ruby General Hospital II(2005) CPJ 35 (NC), wherein it has been held that contention, no consideration paid, deceased or complainant not consumer, not acceptable. On the basis of aforesaid contentions, it has been vehemently contended by ld.counsel for Respondent/ Complainant that the complaint as framed is legally maintainable and therefore, the complaint may be allowed to proceed with further and application filed by Applicant-Opposite Party may be dismissed.
5. But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant is not proved to be a ‘consumer’ of Applicant-Opposite Party because it is admitted case of the parties that the Respondent/ Complainant is employed as Medical Officer at Civil Hospital, Ajnala which is a government hospital and the treatment is provided to the patients ‘free of cost’ there. It is none of the case of the Respondent/ Complainant that the complainant was treated privately by the Applicant-Opposite Party. V.Krishnakumar’s authority (supra) of Hon’ble Supreme Court is not applicable to the facts of the present case because in that case the doctors concerned were drawing ‘non practicing allowance’ from the government. The patient was admitted in government hospital, but lateron, he was treated privately by the government doctors and they also got money from the patient for the treatment so rendered by them. In that eventuality, it was held by Apex Court that the patient was ‘consumer’& under the circumstances the government hospital as well as the doctors were found to be service provider. The guilty doctors were directed to pay compensation while the government was held vicariously liable for the negligence of its employees. But here, in the case in hand, such facts stated above do not exist. It is admittedly a government hospital which provides free service to the patients at hospital premises and the Respondent/ Complainant was also provided free service at Govt.Hospital Ajnala itself. The simple fact that the Respondent/ Complainant could not get the treatment of his eye successfully, he can not sue the doctor concerned in the District Forum as no relationship of consumer/ service provider exists inter se parties. Even the second authority Pravat Kumar Mukherjee (supra) relied upon by Respondent/ Complainant is also not applicable to the facts of the present case because in that case it was the case of 3rd category of doctors and hospitals who provide free service to the consumers of economically poor class, but the bulk of the service is rendered to the patients on payment basis. The expenses for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly falls within the ambit of section 2(1) (o) of the Act. But this proposition does not exist in the case in hand. There are no allegations that service is rendered to some of the patients on payment basis while service to some categories of patients is provided free of cost. To make the things further clear, reliance can be had on Major Singh-Petitioner Vs. State of Punjab and others- Respondents 2014(23) RCR (Civil) 242 (NC), wherein it was laid down that the “doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under Section 2(1) (o) of the Act. In light of the aforesaid observations, it becomes clear that where services are rendered free of charge to everybody availing the said services, patient does not fall within purview of consumer. In the case in hand, learned counsel for the petitioner could not place any document on record that OP No.2, where OP No.3 working as surgeon was not rendering services free of charge to everybody and in such circumstances, complainant does not fall within purview of consumer.” The law laid down in the authority supra is fully applicable to the facts of the present case. Further reliance in this context can be placed on Consumer unity & Trust Society, Jaipur Vs. The State of Rajasthan & Ors.1(1992) CPJ 259 (NC), wherein it has been observed that “a person who avails facility of medical treatment in government hospital is not a consumer and no complaint is maintainable under C.P.Act. In light of the aforesaid judgements, it becomes clear that the learned State Commission has not committed any error in dismissing appeal on the ground that complainant dos not fall within purview of consumer and revision petition is liable to be dismissed.” The law laid down in the authority supra of Hon’ble National Commission, New Delhi is fully applicable to the facts of the present case on all its force. As such, application filed by Applicant-Opposite Party succeeds and the same is allowed accordingly. Consequently, the complaint as filed by Respondent/ Complainant is legally not maintainable and the same is ordered to be dismissed accordingly. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 09.06.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
hrg
