OrderNo.28              date 10.05.2023

Record is put up for order in connection with Miscellaneous Application bearing No. 100 of 2023 dated 15.03.2023 filed by the OP1.

Perused the application. Heard the Ld. Advocates appearing for the parties. Considered.

Ld. Advocate for the OP1 submitted that the Complainant has not filed any document to establish that the treatment as was provided by the OP1 was against any fees received. Further, it is submitted that N.R.S. Medical College & Hospital provide free healthcare service to the people. In this regard Ld. Advocate for the OP1 relied upon a judgement passed by the Hon’ble Supreme Court in Nivedita Singh Vs Asha Bharti case.

The Complainant has filed WO contending inter alia, that the Maintainability Petition of the OP1 is not applicable on this case because in West Bengal Government hospitals do not provide free treatment because a patient has to purchase a OPD ticket of Rs.2/- which is prescribed by the Health Department, Government of West Bengal and without OPD ticket Doctors do not provide treatment to the patient. Therefore when a patient purchase OPD ticket by paying Rs.2/- at that time the said patient buy service of treatment and becomes a consumer. To establish his case the Complainant has relied upon theOPd ticket as service charge and orders passed by the Hon’ble SCDRC.

Both the parties have adduced annexures in support of their contention.  On perusal of the impugned petition and WO along with documents on record it appears before us thatin the Order dated 07/12/2021 passed in the matter of Nivedita Singh Vs Dr. Asha Bharti &Ors (Civil Appeal No(s) 103 Of 2012)the Hon’ble Supreme Court has referred a judgment of this Court reported in (1995) 6 SCC 651 titled Indian MedicalAssociation Vs. V.P. Shantha&Ors.to contend that payment for service availed is not a necessary ingredient to file a complaintunder the C. P. Act. In the abovementioned matter the Hon’ble Supreme Court observed that:

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act,1986 insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. The medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the paymentof the salary to the medical officer by the hospitaladministration and the person to whom service isrendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the 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)(o).”

Therefore, in the matter ofNivedita Singh Vs Dr. Asha Bharti &Ors the Hon’ble Supreme Court is opined that:

“A reading of the above para shows that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the Hospital does not fall within the ambit of 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 medical officer in the hospital who receives salary for the employment in the hospital. It was thus concluded that the services 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.”

In light of the above observation, we are of the opinion that the application of the OP1 for dismissing the Complaint Petition should not be ignored.

Accordingly, MA being No.100 of 2023 is allowed.

In view thereof, we do not find any merit in the present Complaint Petition and the same is dismissed.

Pending application(s), if any, also stand disposed of.

Thus, MA being No 100 of 2023 is disposed of.