DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 21^th day of November 2023

CC.26/2018

Complainant

                   Johny,

                   S/o Kochukutti,

                   Valliparamabil (HO),

                   Perikalloor. P. O,

                   Pulpally.

                  (By Adv. Sri.M. Satheesh Poothikkad.)

Opposite Parties

1.                Dr. Felix Cardoza MS.MCH,

Professor & Head of the Department,

Govt. Medical College, Calicut

2.                Dr. Madhavan. N,

M.S. DNB. FRCS. Mch

Additional Professor,

Govt. Medical Collage, Calicut.

3.                Dr. Manikandan. M,

Ms. Mch Associate Professor,

Govt. Medical College, Calicut.

4.                 The Superiendant,

Govt. Medical College, Calicut.

5.                The Director,

Kerala State Health Department,

Thiruvananthapuram.

                         (Op. 1 and 3 By Adv. Sri. Shyam Padman)

ORDER

By Sri. P.C. PAULACHEN – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 alleging medical negligence against opposite parties 1 to 3 regarding the treatment the complainant had availed in the Govt. Medical College, Kozhikode.

2.  On entering appearance, the first and third opposite parties filed IA 95/2018 for hearing the issue of maintainability as a preliminary issue. According to the first and third opposite parties, the complainant is not a consumer as contemplated under the Consumer Protection Act, 1986, since he has not hired the services of the opposite parties for any consideration and consequently  the complaint is not maintainable and is liable to be dismissed in limine.
3. The complainant filed counter statement. According to the complainant, free medical services provided by the Government medical college will come under the ambit of the Consumer Protection Act and therefore the complaint is maintainable.     
4. Heard both sides as to the maintainability of the complaint.  
5. The learned counsel for the first and third opposite parties have argued that the complainant was treated free of cost in the Govt. Medical College and there was no hiring of service for consideration and hence the complainant is not a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. It was argued that the opposite parties one and three had rendered services as employees of the State Health Services and there is no direct nexus between the payment of salary to the opposite parties by the State and the complainant to whom the service is rendered, more so because the salary that is being paid by the State to the employee doctors cannot be regarded as payment made on behalf of the person availing the service. Various decisions of the Hon’ble Supreme Court and the National and State Commissions were brought to the attention of this Commission by the learned counsel.
6. Per contra, the learned counsel for the complainant argued that the treatment availed from the Govt. medical College is also a hired service and the complainant is a consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986. According to the learned counsel, free medical services in Government hospitals also come under the ambit of the Consumer Protection Act. In support of the contention, the decision of the Hon’ble National Consumer Disputes Redressal Commission in Safdarjung Hospital case was brought to the notice of this Commission by the learned counsel for the complainant.
7. According to the definition of ‘consumer’ in section 2(1)(d) of  the Consumer Protection Act 1986, a person who hires or avails of any services for consideration is a consumer. In this case, opposite parties 1 to 3 are the doctors attached to the Govt. Medical College, Kozhikode. The opposite parties 4 and 5 are the Superintendent of the Govt. Medical College and the Director of Kerala State Health Department respectively. The allegation of the complainant is that the treatment provided in the Govt. Medical College   was deficient as during the surgery, he sustained burns on his legs on account of the electric line coming into contact with the steel vessel kept on the top of his leg and he is claiming compensation for the alleged loss, injury and damage sustained by him. In this context, it may be noted that the complainant was treated free of cost in the Government Medical College, Kozhikode. There was no hiring or availing of service for consideration. There is no pleading that any consideration was paid by the complainant for obtaining the services of the opposite parties. That being the position, the treatment availed by the complainant is outside the purview of the expression ‘service’ as defined in section 2(1)(0)   and the complainant is not a consumer falling under section 2(1)(d) of Consumer Protection Act, 1986.
8. The above position is supported by the various decisions of the Hon’ble Apex Court as well as the National and State Commissions.  In Indian Medical Association Vs V.P Shantha (III (1995)CPJ 1 (SC)) the Hon’ble Supreme Court while considering the issue as to whether the service rendered by Government Hospital is a service under the Consumer Protection Act, 1986 has held;

“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)(0) of the Act, the payment of a token amount for registration purposes only at the hospital/nursing home would not alter the position”.

9. The decision in Indian Medical Association Vs V.P Shantha was relied on in B.C Joshy Vs Dr. Sandeep Kumar and ors – (II(2002)CPJ 125(Delhi)) by the Hon’ble Delhi State Commission and in Hema (Dr) and ors Vs         S. Jayan & Ors (II(2016) CPJ 306 (NC)) of the Hon’ble National Consumer Disputes Redressal Commission. In Nivethita sing Vs Asha Bharti & Ors (I(2022) CPJ 69(SC)) the Hon’ble Supreme Court has held that  a medical officer who is employed in a hospital renders service on behalf of the hospital administration and the service rendered by the hospital does not fall within the ambit of Section 2(1)(0) of the Act being free of charge, the same service cannot be treated as service under Section 2(1)(0) for the reasons that it has been rendered by a medical officer in the hospital who received salary for the employment in the hospital. It was thus concluded that the service rendered by employee medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2(1)(0) of the Act. The decision in Indian Medical Association Vs V.P Shantha and Nivedita sing Vs Dr Asha Bharti and Ors was followed in Manish Kumar Vs All India Institute of Medical Science and Ors (II (2023) CPJ 327(NC)). The decision in Nivedita sing Vs Dr Asha Bharti & Ors was followed by the Hon’ble National Consumer Disputes Redressal Commission in Concerned Nurse, Lal Bahadur Shastri Hospital and another Vs Lalan Prasad Sharma & Another (II(2023) CPJ 532(NC) and Dr. Kirandeep Kaur Vs  Beant Kaur & five others (IV)(2023)CPJ 191 (NC) and held that the doctor’s services in Government hospitals will not attract the provisions of the Consumer Protection Act and patient in Government Hospital providing free service, is not a Consumer as defined under Section 2(1)(d) of Consumer Protection Act, 1986.
10. The complainant in the counter statement has made a reference to the decision of the Hon’ble National Consumer Disputes Redressal Commission in Safdarjung Hospital Case and has submitted that the same is pending before the Hon’ble Supreme Court. But the matter was disposed of by the Hon’ble Supreme Court as per the decision reported in Union of India and Anr Vs N.K Srivastava and Ors II (2020) CPJ 92 (SC) clarifying that the judgment of the Hon’ble National Consumer Disputes Redressal Commission is confined to the peculiar factual back ground of the matter and that the impugned judgment of the National Commission shall not be cited as the precedent. Paragraph 12 of the aforesaid decision reads as follows;

“However, Mr. R.S. Suri submitted that it would be appropriate for this court, having regard to the recurring nature of the issue, to leave the question of jurisdiction open to be decided in an appropriate case where a factual foundation can be laid by the Union of India and Safdarjung Hospital, both in the pleading and evidence. We consider this to be appropriate so as to ensure that while we are affirming the judgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention of this Court, the decision of this Court (or of the NCDRC) is not regarded as a precedent for having decided a question of law in the generality of cases that may arise involving Safdarjung Hospital. We therefore confine the judgment of the NCDRC to the peculiar factual backgrounds, as we have noted in the present case. We clarify that we have left open the issue as to whether Safdarjung Hospital would be governed by the provisions of the Act, more particularly, having regard to the provisions of Section 2(1)(0), to be decided in an appropriate case. The impugned judgment of the NCDRC shall not be cited as a precedent. The issue, including any other issues which may arise is left open to be adjudicated upon in an appropriate case”.

So the decision sought to be relied on is not helpful to the complainant.

11. In the light of what is stated above and the dictum laid down by the Hon’ble Supreme Court and the National and State Commissions as indicated above, it is crystal clear that the service rendered by the doctors and staff of a Government hospital is not a service covered within the ambit of the Consumer Protection Act and consequently, the complainant herein is not a consumer as contemplated under section 2(1)(d) of the Consumer Protection Act, 1986. The complaint is not maintainable and liable to be dismissed.

In the result, CC 26/2018 is dismissed as not maintainable.  No costs.

Pronounced in open Commission on this, the 21^st day of November, 2023.

Date of Filing : 19.01.2017             

                                    Sd/-                                                               Sd/-                                                   Sd/-

                           PRESIDENT                                                   MEMBER                                         MEMBER

APPENDIX

NIL

                              Sd/-                                                                        Sd/-                                                 Sd/-

                       PRESIDENT                                                          MEMBER                                       MEMBER

True Copy,

                                                                                                                                                     Sd/-

                                                                                                                                           Assistant Registrar