PER:
Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite party on the allegations that the complainant is a farmer and also doing the work of dairy farming having 3 cows/ cattles, The compaiant was having a Holstein Friesland (HF) breed Cow, which he purchased in the month of July, 2021 for a sum of Rs. 60,000/- The cattles of Holstein Friesland [HF] breed are considered superior being known as the world's highest production dairy cattle and this breed of cows have been selecting for dairy qualities since ancient time. The said cow/cattle of the complainant used to give about 17/20 liter milk per day as this breed of cow is considered the best dairy breed among exotic cattle regarding milk yield and out of this milk, the complainant used to sell 07 liter milk alongwith milk of other cattles, to the dairy. The opposite party in serving as a medical professional and he posted as a Veterinary Doctor at Veterinary Hospital Tarn Taran. The opposite party provided medical treatment to the said cow/cattle of the complainant on account of some issue in one of its teat in negligent and inaccurate manner, thereby the complainant availed the service of the opposite party, an such the complainant is beneficiary of the services provided by opposite party and hence the present complaint is maintainable before this Commission. The said cow/cattle of the complainant, was fit and healthy but one of its teat was suffering from giving/yielding some less milk than the other teats and the said problem was of very minor in nature and was not much serious, due to which the complainant approached the opposite party and discussed regarding the said minor issue of his cattle upon which the opposite party said the complainant to bring his cattle at Veterinary Hospital Tarn Taran. On 10.9.2021, the complainant alongwith his son- Kulwinder Singh and other respectables persons of the village namely Malkit Singh and Harjit Singh, brought his said cow/cattle at Veterinary Hospital Tarn Taran where the opposite party without examining in a proper manner & norms, the said cow/cattle of the complainant, told him that the said teat of the cow/cattle of the complainant required medical treatment with one instrument called Varma [teat siphon & hudson teat spiral] by way of putting/ injecting the same inside the teat of the said cow/cattle of the complainant instead of giving any medicine but the complainant requested the opposite party to provide some kind of medicine to his cattle because the said problem was not big issue for the complainant rather was very minor and it was not necessary to operate his cattle in such manner upon which the opposite party stated to the complainant "Not to be worried, he was well competent and he would be solved all the problems as the said problem was not a big deal for him" Thereafter the opposite party without prior permission/ consent or without taking the complainant into confidence, put/injected a sharp instrument in the teat of the said cow/cattle of the complainant in a negligent, careless manner, without taking precautions or reasonable possible care and even not followed necessary and established norms while treating the said cow/cattle of the complainant. The opposite party did that medical treatment very over confidently, in such negligent & poor manner which was itself needless and even after that the opposite party did not provide/give any medicine to the said cattle at the spot as well as not put/apply any medicine inside or outside the said teat of the cow/cattle of the complainant despite requests on the part of the complainant. The said cow/cattle of the complainant, suffered a great pain & was squirming & tormenting while treatment of the opposite party for which the opposite party not cared at any moment. The complainant's son-Kulwinder Singh and Malkit Singh and Harjit Singh were also present at the spot at that time and they witnessed the whole episode. As per the false assurance of the opposite party, the complainant with the assistance of above mentioned persons, brought back his cattle/cow to his house in good faith but the said cow/cattle of the complainant, was remained in miserable/pathetic condition despite providing medicine in the house as per the instructions of the opposite party. At about 10.00 PM on the same day, the complainant and his family members, found that the whole Fore Udder of the said cow/ cattle of the complainant, got swelled and further on the next morning, Fore Udder of the said cow/cattle of the complainant, got infected, on account of said wrong medical treatment by the opposite party which was being conducted in a negligent manner. Due to which since that day the said cattle became unable to yield milk, also stopped taking its feed/fodder resultantly felt on the earth due to weakness and infection and remained on earth in woe condition till death. The condition of the said cattle of the complainant had been become worse to worst day by day and at last passed away on 09.11.2021. The complainant tried every possible effort to save his cattle from the clutches of death but the infection could not be cured just due to wrong, inaccurate medical treatment on the part of the opposite party. The cattle/cow of the complainant suffered an injury/infection due to wrong treatment of the opposite party, which was itself needless as stated above and this infection became the reason for the death of cattle of the complainant. Meanwhile the complainant also approached the opposite party and he was being informed about the woe situation of the cow/cattle upon which the opposite party orally admitted his fault and in order to hide his mistake/fault, the opposite party in the name of further medically treatment came to the house of the complainant and succeeded in taking back all the medical record regarding the treatment of the cow/cattle from the complainant in a malafide and fraudulently manner but even then failed to provide proper medical treatment to the cattle. The said cow/cattle of the complainant, passed away due to wrong and inaccurate medical treatment on the part of the opposite party which was itself unnecessary. The condition of the said cattle not improved despite of day night services provided by the complainant and his family and they served the said cow like their own family member during that crucial & tuff time of almost 02 months. In-fact opposite party, diagnosis the cattle of the complainant, in wrong, incorrect & inaccurate way & did inaccurate medical treatment/ surgery which was not necessary rather the same was itself needless. The organ/ teat/fore udder of the cow/cattle, was damaged/destroyed on account of wrong, improper medical treatment of the opposite party. Opposite party not provided medical treatment to the cow/cattle, as per accepted and established norms in medical science resultantly the complainant has lost his cattle & earning as well without any fault on his part. The opposite party has not taken the possible care while treating the cow/cattle whereas the opposite party was under obligation to treat the cattle with due care but he breached/violated his duty by way of not performing his duty in a proper manner. The cattle/cow of the complainant, suffered an injury/infection due to breach of medical duty/task of the opposite party and died due to said infection/injury and it amounts to medical negligence on the part of the opposite party Every doctor has a professional obligation to perform his duty/ service with due expertise while serving the patient but the opposite party failed to perform his duty/task within a reasonable degree of skill, competency & knowledge, rather, he performed to the lowest degree of care & competency. The medical negligence/failure of the duty on the part of the opposite party, can be summarized on this point that opposite party did not take prior permission/consent of the complainant, for treating his cattle whereas a duty of such obligation is imposed upon the doctors and further the opposite party not discussed/disclosed to the complainant, all such information, alternative treatment, its result/ consequences, risks, negative reactions and things as would be relevant or necessary for taking the decision of treatment. The liability of the opposite party arises as the said cattle died due to the injury/infection which resulted due to the conduct of the opposite party, lack of reasonable care and the injury/infection and death of the cattle is just a consequence of a breach of medical duty on the part of the opposite party. The complainant approached the opposite parties many a times with the request to do the needful into the matter and also to compensate him on account of loss of cattle & earning due to the fault on the part of the opposite party but opposite party did not put ears to the requests of the complainant and has been putting off the matter on one false pretext or the other. A legal notice dated 24.9.2021 also served upon opposite party, by complainant whereby opposite party was again requested for paying compensation within the period of 15 days from the date of receipt of the said legal notice failing which the opposite party was notified that necessary action under the amended provision of relevant Acts & law would be initiated. The said notice was duly served upon the opposite party & he gave/served a written reply dated 9.10.2021 to the said legal notice dated 24.9.2021 wherein the opposite party duly admitted that he provided medical treatment to the said cattle/cow of the complainant but he denied to compensate the complainant, hence the present complaint. Moreover, the complainant also moved complaints/applications before the Deputy Director, Veterinary Hospital, Tarn Taran, Deputy Commissioner, Tarn Taran and SSP Tarn Taran, against the opposite party to take legal action but nothing has been done so-far. The complainant has prayed the following reliefs:-
- The opposite parties may kindly be directed to pay compensation to the tune of Rs. 5,00,000/- to the complainant on account of loss of his cattle/ cow, loss of earning, as well as mental & physical pain, harassment & inconvenience, caused to the complainant at the hands of opposite parties and Rs. 5,500/- as litigation expenses in the interest of justice, equity and fair play.
- Any other relief to which the complainant is found entitled to that may also be granted in his favour under the law and equity.
Alongwith the complaint, the complainant has placed on record self attested copy of affidavit of complainant Ex. C-, Self attested copy of legal notice dated 24.9.2021 Ex. C-2, Self attested copy of reply dated 9.10.2021 Ex. C-3, Self attested copies of complaints/ applications dated 4.10.2021 Ex. C-4 to C-6, Photographs of Cow Ex. C-7 to Ex. C-9.
2 Notice of this complaint was issued to the opposite party and opposite parties appeared through counsel and filed written version by interalia pleadings that the complainant has not approached this commission with clean hands and has suppressed the material facts from the knowledge of this commission and as such, he is not entitled to any relief as claimed for in the complaint. The real facts of the case are that the complainant visited the Poly Clinic Tarn Taran alongwith his cow on 10.9.2021 alongwith few persons for the treatment of his cow who was having complaint of having issue in one of its teat and was comparatively giving less milk from that teat. On examining the cow, the opposite party being a professional, checked the cow for free as a rule and practice in Poly Clinic, Tarn Taran and found that the cow was suffering from Mastitis disease which is commonly prevalent in the cows and cattles. The opposite party Dr. Harnoor Singh is a well-qualified and experienced Doctor having a degree in Bachelor of Veterinary Sciences and Animal Husbandry also Master of Veterinary Sciences (Surgery and Radiology) and is currently posted as Veterinary Surgeon in the Veterinary Poly Clinic, Tarn Taran. On examining the cow properly and by conducting the tests with the consent of the complainant and the members that came along with him it was found that from the front teat of the cow there was very less secretion of milk and as the reason assessed could have been Membranous obstruction, growth or Fibrotic Cord, the opposite party being professional and being very careful of his duties used autoclaved (Sterilized) Teat instrument for the checkup and very carefully used Teat Siphon to draw milk from the teat and further during the course of treatment of the cow, Hudson Teat Spiral was used for diagnosing/ removing Membranous obstruction. The said cow was diagnosed with teat fibrosis and even after giving above said medical treatment, the same cow was kept under observation by the opposite party. All this medical facility was given under the care and guidance of the opposite party with the consent and knowledge of the complainant and the members along with him, satisfied by the treatment the complainant took his cow back to his village along with other persons. After medical treatment, the cow went on her own four legs. The complainant took the medical record, prescription and medicine as referred by the opposite party along with them before they left and as such there was no deficiency in services on the part of the opposite party while treating the cow. Admittedly, the complainant has three cows and photographs of the cow which are exhibited by the complainant as Ex.C7, Ex.C8 and Ex.C9 are objected to on the mode of proof and admissibility as this is not the same cow which was treated by the opposite party. The complaint is bad for non-joinder and misjoinder of the necessary party, that admittedly the opposite party is a Government Doctor/Veterinary Surgeon in Veterinary Poly Clinic, Tarn Taran which is a Government run Hospital/Clinic and the same has not been made party in the present complaint. In the absence of Poly Clinic, Tarn Taran being made party the complaint cannot be decided upon its merits in a just and proper way. The complainant does not has a locus standi to file the present complaint as he does not fall within the purview of consumer as defined under the definition of Consumer Protection Act, 2019. It is a well settled principle of law laid down by the Hon'ble Apex Court of the country that the patients who come to the Government Hospitals for their treatment and are treated for free without any cost does not fall within the ambit of Consumer Protection Act. No valid cause of action has ever arose in favour of the complainant against the opposite party as the opposite party has performed its duty with utmost care and precision and the cow of the complainant was treated properly and admittedly went back with the complainant on her own four legs clearly proves that the treatment given by the opposite party was perfectly fine. The opposite party also wants to draw the intention of this Commission towards the fact that admittedly the said cow was purchased by the complainant for about Rs.60,000/- in the month of July 2021 but in the legal notice dated 24.9.2021 sent by the complainant, the complainant claimed an amount of Rs.5,00,000/- from the opposite party and further in the present complaint, he reiterated his version of demanding Rs.5,00,000/- from the opposite party and this fact itself proves that the only intention of the complainant is to extract money from the opposite party. The post mortem of the cow of the complainant has also been conducted on 11.11.2021 by the board of doctors but this fact has been intentionally concealed by the complainant in the present complaint due to the reason that the post mortem report of the cow clearly reveals that there is no such injury/sore/abnormality has been marked by the team of the doctors who conducted the post mortem of the said cow. Moreover, the perusal of the post mortem report of the said cow shows that the said cow was severely dehydrated having bed sore on both side of the body and further it has been clearly been mentioned in the said post mortem report that there is five finger gap between the femur at hip joint. The perusal of post mortem report dated 11.11.2021 shows that the said cow of the complainant has not been died or having any abnormality as projected by the complainant in the present complaint, rather, said cow has been died due to the hip displasia, leading to Lateral Recumbency, which ultimately leads to bed sores and other bodily complications and same was finally resulting in multiple organ failure. As such, post mortem report dated 11.11.2021 issued by the board of doctors totally falsify the version of the complainant as falsely alleged by him in his legal notice dated 24.09.2021 as well as in the present complaint. The opposite party has applied to appropriate authority for getting the attested copy of post mortem report dated 11.11.2021 of the above said cow and the same was issued to the opposite party as per rules. The complainant has failed to pay the requisite OPD fee. The complaint of the complainant is not maintainable on the ground of jurisdiction of District Consumer Disputes Redressal Commission. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record affidavit of opposite party Ex. OP1/A, Self attested copy of reply to legal notice dated 9.10.2021 Ex. OP1/B, self attested copy of post mortem report of the cow bearing No. 1 dated 11.11.2021 Ex. OP1/C, Self attested copy of identity card of the opposite party issued by Department of Animal Husbandry Punjab Ex. OP1/D.
3 We have heard the Ld. counsel for the parties and have carefully gone through the record.
4 Before touching the merits of the present complaint, we have to decide the point as to whether the present complaint is maintainable before this commission or not ? because, Ld. counsel for the complainant has contended that one of the teat of his cow/cattle was suffering from giving/yielding some less milk than the other teats ad due to this reason, the complainant brought his cow with the opposite party and due to wrong treatment, the cow/cattle of the complainant died. On the other hands, the Ld. counsel for the opposite party contended that the cow/ cattle of the complainant was treated to the best of his ability and he also contended that the complainant does not fall within the purview of consumer as defined under the definition of Consumer Protection Act, 2019 as the opposite party is a Govt. official and he also contended that the patients who come to the Government Hospitals for their treatment and are treated for free without any cost does not fall within the ambit of Consumer Protection Act. The complainant has failed to pay the requisite OPD fee.
5 The word “service” has been defined in Section 2(1)(o) of the C.P. Act as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
In the light of above definition it would be appropriate to examine the settled law on the issues in question.
6 The matter is no more res integra. In “C.K. Mohanasundaran v. K.U. Gopal Krishnan Nair” reported in II (2016) CPJ 78 (NC) complainant/respondent applied for issuing the possession certificates for 48 cents and 58 cents which were owned by him as per partition deed No.2875/1974 of Sub Registrar Office, Tirurangadi and that though he had applied for the certificates on 13.3.2008, he was issued the possession certificate of 58 cents only and the other possession certificate relating to 48 cents of land was denied by the opposite party. Alleging deficiency in service in non-issuing the possession certificate for the 48 cents the respondent filed complaint before the District Forum, which allowed the complaint and awarded compensation and costs. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission, which was dismissed, vide order dated 18.02.2011. Hence the Revision Petition, which was earlier dismissed by the Hon’ble National Commission on the ground of limitation, vide order dated 07.05.2013. The petitioner filed SLP, which was allowed by the Hon’ble Supreme Court, vide order dated 09.01.2015 and set aside the order passed by the Hon’ble National Commission. The matter was remitted to the Hon’ble National Commission. It was argued by the learned counsel for the petitioner in that case that possession certificate could not be issued because there was a different resurvey number and that on verification it was found that survey number 127 had been subdivided into 127/1 and 127/2 in 1981. The complainant’s property was lying in survey No.127/2, whereas he had applied with survey No.127. Therefore, it was not possible to issue the possession certificate. Moreover, petitioner is a representative of a Government Department which performs statutory functions and its activities are not covered under the C.P. Act. Learned counsel for the petitioner relied upon following judgments:-
“(a) Registrar of Co-operative Societies & Anr. v. Tamil Nadu Consumer Protection Council, Trichy & Ors., II (2007) CPJ 175 (NC). It has been held that:
“(i) Consumer Protection Act, 1986 — Section 21(b) — Co- operative Societies Act —Section 88 — Securities—FDR— Deposits with Co-operative Society — Failure to refund on maturity—Complaint allowed by Forum — Order upheld by State Commission — Special Officer and Registrar of Co- operative Societies made personally liable — Direction — Refund with interest — Hence revision — Registrar of Co- operative Societies and Special Officer appointed under Section 88 of Co-operative Societies Act — Discharge of any duty or function by them cannot be termed service or facility —Registrar discharges statutory duty and Special Officer appointed for administration of Society because of supersession — Both cannot be made personally liable for acts or misdeeds of Co-operative Societies — Order of Commission set aside — Only Co-operative Society liable for refund of deposit — Interest @ 8% allowed. (ii) Distinction — Service under Section 2(1)(g) and Statutory Duty — Person who presents document for registration and pays stamp duty, not consumer — Officers appointed to implement provisions of Registration Act and Stamp Act do not render service under Consumer Protection Act — Perform only statutory duties.”
(b) Thrissur Municipal Corporation v. Ummer Koya Haji, 2006 (3) KLT 897. It has been held that:
“Consumer Protection Act, 1986, S.2(o)—In respect of sovereign functions exercised by local bodies by way of collection of taxes like property tax, profession tax and other taxes, it cannot be said that local bodies are rendering any services in respect of which tax payer can maintain a complaint under the Act.”
(c) Bihar School Examination Board v. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC)=VII (2009) SLT 109. It has been held that: “(i) Consumer Protection Act, 1986 — Sections 2(1)(d), 2(1)(g), 2(1)(o), 11,19, 23 — Education Result not published — Complainant had to reappear in exams — Loss of one year suffered — Compensation granted by Consumer Forum — Order upheld by State and National Commissions — Civil appeal filed — Examination Board while conducting examination, in discharge of statutory function, does not offer ‘services’ to candidates — Examination fee paid by student not consideration for ailment of service, but charge paid for privilege of participation in examination — Board not ‘service provider’ — Student appearing in examination, not ‘consumer’ — complaint under Consumer Protection Act not maintainable against Board/University — Orders of Consumer Fora set aside.”
7 Reference in this regard can also be made to the judgment of Hon’ble U.T. State Consumer Disputes Redressal Commission, Chandigarh in “Vijay Kumar v. National Institute of Open Schooling YMCA Complex and others” decided on 1.5.2015 in which the complainant sought information under the Right to Information Act, 2005, from opposite party No.1 therein but it did not supply the same. Then the complainant sent letters to the Appellate Authorities of opposite party No.1 i.e. opposite parties Nos.2 and 3 but to no avail. Alleging deficiency in service he filed consumer complaint for issuance of directions to the opposite parties to refund the amount of Rs.9,066/- along with interest and compensation. The said complaint was dismissed by the District Forum. Feeling aggrieved the complainant/appellant filed appeal before the State Commission. With regard to rendering of any service by the opposite parties to the complainant it has been held by the State Commission as under:-
“Whether the complainant fell within the definition of a consumer and whether, in case, the Public Information Officer furnishes the information, under the Right to Information Act, 2005, amounted to rendering of any service. Nominal fee of ₹50/- was deposited by the complainant, for seeking information, as provided under the relevant Statute. The Public Information Officer, while supplying the information, under the Right to Information Act, 2005, discharges his statutory duties. The person feeling aggrieved against non-supply of the information by the Public Information Officer, can file first appeal and second appeal. The Appellate Authority, while hearing the appeals, rerforms the quasi-Judicial functions. The Public Information Officer, therefore, does not render any service to the complainant/applicant, seeking information, under the Right to Information Act, 2005. In S.P. Goel Vs. Collector of Stamps Delhi (AIR 1996 839 (SC), it was held that the person presenting a document for registration is not a consumer, within the ambit of the Consumer Protection Act, nor the Officers appointed under the Registration and Stamps Act, render any service to him, but, on the other hand, they perform statutory duties, which are at least quasi- Judicial. The National Commission inPublic Information Officer Vs. Tarun Agarwal, Revision- Petition No.2846 of 2013, decided on 16.12.2013 and Sanjay Kumar Mishra's case (supra) , observed that the provisions of Sections 22 and 23 of the Right to Information Act, 2005, are crystal clear First Appeal No 532 of 2019 15 and the Commission is certainly not armed with the powers under the same (RTI Act, 2005). It cannot arrogate the powers which do not vest with it. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. In the present case, neither the complainant was a consumer, nor the Opposite Parties, were service providers, nor the dispute was a ‘consumer dispute’, and, as such, the consumer complaint was not maintainable.”
8 In view of the law laid down in the aforementioned judgments and the facts and circumstances of this case, the complaint is not maintainable against opposite parties as both the opposite party has performed sovereign functions in compliance of the policy of the State Government and he has not charged any fee for the treatment of cattle from the complainant.
9 In view of the above discussion, we have come to the conclusion that the complainant has availed the services free of costs and opposite party is Govt. employee and he discharges his officials duties under the policy of Govt. As such, the present complaint is not maintainable and is dismissed with no order as to costs. Copies of the orders 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 Commission. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
11.10.2023
