West Bengal

Bankura

CC/29/2017

Shri Santimoy Mondal - Complainant(s)

Versus

Dr. Writtik Porel - Opp.Party(s)

Anirban Banerjee

25 Apr 2023

ORDER

   

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

  Consumer Complaint No. 29/2017

Date of Filing: 07.04.2017

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant: None

For the O.P.Ld. Advocate Jayanta Kumar Mukhopadhyay /  Ld. G.P., Bankura

 

Complainant  

Shri Santimoy Mondal, S/o Manik Chandra Mondal, R/o Vill-Kendrasayer, Chhatna, Bankura

Opposite Party          

1.Dr. Writtik Porel, Department of Orthopedic, BSMCH, Kenduadihi, Bankura

2.Medical Superintendent & Vice Principal, BSMCH, Bankura

FINAL ORDER / JUDGEMENT              

                                                                                                                                             

Order No.33

Dated:25-04-2023

No step is taken by the complainant.

O.P files hazira through advocate.

The case is taken up for argument to decide the case in view of Section-38 (3)(c) of Consumer Protection Act, 2019.

At the outset Ld. G.P., Bankura appearing for O.P. No.2 i.e. Medical Superintendent & Vice Principal, Bankura Sammilani Medical College and Hospital (BSMCH) has raised the maintainability point as to the jurisdiction of this Commission to adjudicate the case of medical negligence at the instance of O.P.s. Ld. Advocate for O.P. No.1 has also raised the same issue.

For disposal of the maintainability issue it is necessary to state some relevant facts of the case. The wife of the complainant was admitted on 04-01-2017 at Gynecology Department of BSMCH for delivery of child and on 06-01-2017 she delivered a male child and the wife of the complainant was discharged on 08-01-2017 but at the time of birth lower limb of the right leg of the new born baby was to some extent deformed and as per advice of the Doctors of BSMCH visited Outdoor Department on  18-01-2017 for treatment of the deformity and O.P. No.1 Dr. Writtik Porel, Doctor of Orthopedic Deptt., BSMCH plastered the lower limb of the right leg of the kid but on 21-01-2017 the baby was crying with unnatural behavior and on 22-01-2017 the baby was admitted in SNCU of BSMCH and thereafter on

                                                                                                                                                                                                Contd…..p/2

Page: 2

25-01-2017 the baby was shifted to the Outdoor Deptt. for opening the plaster and after opening the plaster it is revealed that the lower portion of the right leg has been decomposed and on 26-01-2017 the concerned Dr. of BSMCH discharged the baby with the endorsement …” Refer discharged to higher centre for CIVS and on the same date the baby was admitted on  NRS, Bansgur Hospital, Calcutta and on 31-01-2017the Doctors of NRS Hospital, Bangur was compelled to cut and remove the lower portion of the right leg of the baby as it was a case of Gangrene. The said baby was discharged from NRS, Bangur Hospital on 17-02-2017.          

The complainant being the father of the baby has approached this Commission labeling allegation of medical negligence against the O.P.s claiming compensation of Rs.20 Lakhs.

The O.P. No.1 & 2 separately submitted written versions denying their liability for the treatment of the victim child contending inter alia that the complainant is not a consumer and as such the present complaint is not maintainable under the provision of Consumer Protection Act.

Admittedly the instant complaint has been filed against the Doctor and Medical authority attached to BSMCH which is purely a Government Hospital. In consumer cases the prime issue is as to whether the complainant is a consumer or not under the Consumer Protection Act. Section 2 (7) of the Consumer Protection Act, 2019 defines Consumer as a person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised. On one hand Consumer is Service Recipient and the Opposite Party against whom the complaint is lodged is the Service Provider. All services will not come within the purview of the Consumer Protection Act, 2019 but the services classified and defined in Section-2 (42) of the said Act does not include the rendering of any service free of charge or under a contract of personal service. In other words it can be said that if the Consumer receives service free of charge or the Service Provider renders any service to the Consumer free of charge none of such service is covered under the Consumer Protection Act. From this point of view whether medical service rendered by the Doctors on duty attached to any Government hospital will come within the ambit of service as defined in the Consumer Protection Act when such medical service is rendered free of cost and free of charge to the victim patient.

                                                                                                                                                                                                Contd……p/3

Page: 3

The Apex Court has set at rest this burning issue in the celebrated decision reported in AIR (1996) SC 550 / (1995)(6)SCC 651 (Indian Medical Association Vs. V.P. Shantha & Ors) holding at Para 55 under Clause-9 as follows: -

“Service rendered at a Govt. hospital / Health Centre / Dispensary 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 the expression ‘Service’ as defined in Section (2)(1)(0) of the Consumer Protection Act, 1986 corresponding to Section (2) (42) of Consumer Protection Act, 2019. The payment of token amount for Registration purpose only at the Hospital/Nursing Home would not alter the position

The above mentioned V. Shantha’s case has also classified such services under Clause-10 at Para-55 where service rendered at Govt. hospital/Health Centre/Dispensary on payment of charges and also rendered free of charge to other persons availing such service would fall within the ambit of service as defined in the Consumer Protection Act but in this case there is no material on record before the Commission that the BSMCH where the victim patient received treatment has the system and scheme of rendering services on payment of charges to any classified person.

 Recently Apex Court by a decision dated: 17-12-2021 in Civil Appeal  No.103/12 (Nivedita Singh Vs. Dr. Asha Bharati & Ors) has dismissed the complaint on similar ground relying upon the  V. Shantha’s case. Hon’ble NCDRC, New Delhi also relying on the above decision of the Supreme Court has denied the relief to the complainant on the same ground in C.C. No.261/2018, dated: 27-02-2023 (Manish Kumar Vs. All India Institute of Medical Science, Delhi)

                                                                                                                                                                                         Contd……p/4                                                                                 

                                                                                                           Page: 4

It is therefore clear from the facts of the case and the judicial authority enunciated by the Apex Court that the medical services rendered by the O.P. to the victim patient at BSMCH is outside the purview of the expression ‘service’ as defined in the definition Clause of ‘service’ of the Consumer Protection Act and as such the victim patient being the recipient of such medical service cannot be treated as a Consumer within the meaning of ‘Consumer’ as defined in the Consumer Protection Act. The complainant has therefore no locus standi to lodge the instant complaint and without passing any order on the merit of the case the Commission can safely dismiss the complaint on this legal issue.

                                                                             Hence  it is ordered……..

That the instant case is dismissed on contest as being not maintainable. Liberty is given to the complainant to seek appropriate relief from the competent Court of Law in accordance with law.

Both parties be supplied copy of this Order free of cost.  

 

   ____________________                   ________________              _________________

  HON’BLE   PRESIDENT             HON’BLE MEMBER          HON’BLE MEMBER