Punjab

StateCommission

A/10/88

BSNL - Complainant(s)

Versus

Manjit Kaur - Opp.Party(s)

Deepali Puri

22 Jan 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No. 88 of 2010

                                                           

                                    Date of institution: 21.1.2010  

                             Date of Decision:  22.1.2015

 

1. Chief General Manager, Telecom, Bharat Sanchar Nigam Limited, Telephone Bhawan, Patiala.
2. Chief Managing Director, Bharat Sanchar Nigam Limited, Statesman House, 148-B, Bara Khamba Road, New Delhi.
3. Chief General manager, Telecom, Bharat Sanchar Nigam Limited, Plot No. 2, Sector 34-A, Chandigarh.

…..Appellants/Opposite Parties

                                      Versus

Smt. Manjit Kaur W/o Late Paramjit Singh, House No. 6, Street No. 9, Guru Nanak Nagar, Patiala.

…..Respondent/Complainant

 

First Appeal against the order dated 7.12.2009 passed by the District Consumer Disputes Redressal Forum, Patiala.

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

Present:-

          For the appellants            :         Ms. Jyotika, Advocate for

                                                          Ms. Deepali Puri, Advocate

          For the respondent :         Ex.-parte.

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellants/opposite parties(hereinafter referred as “the OPs”) have filed the present appeal against the order dated 7.12.2009 passed by the District Consumer Disputes Redressal Forum, Patiala(hereinafter referred as “the District Forum”) in consumer complaint No.239         dated 13.5.2008 vide which the complaint filed by the respondent/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to the Ops to pay the medical expenses to the complainant to the tune of Rs. 25,014/- alongwith interest @ 9% p.a. w.e.f. 1.4.2007 till the date of realization and also pay compensation on account of harassment as Rs. 3,000/- and litigation cost of Rs. 2,000/-.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the Ops by alleging that she was appointed as a Telephone Operator by GMT, U.P., Kanpur U.P. Circle and lastly she was transferred to GMT, Patiala on 5.9.1991. She had taken 4 days casual leave from 18.12.2006 to 21.12.2006. The complainant suddenly fell ill and was taken to DMC and Hospital, Ludhiana on 21.12.2006. After checking the Doctor advised to admit her being an emergent case. The complainant informed the DET, Planning-II, office of GMT, Patiala Telegraphically on 21.12.2006, which was received by that office on 23.12.2006. The complainant was admitted to operate upon “TAXC B/L BSO/ MEROUEHAGIA UTRES” on 23.12.2006 in DMC Hospital. The Medical Officer had recommended 60 days leave, which was sent to the office of the Ops. However, Op No. 3 did not clear and slept over on the matter for clearing the medical reimbursement bill of the complainant amounting to Rs. 25,014/-, which amounts to deficiency in services on the part of the Ops. Accordingly, this amount has been demanded by the complainant from the Ops alongwith interest @ 18% p.a., Rs. 50,000/- as damages and Rs. 3,000/- as counsel fee.

3.                The complaint was contested by the Ops, who filed reply taking preliminary objections that the complainant was not a consumer under the Act and that the complaint was vague, false and result of the concealment of the fact. Medical claim of the BSNL has been settled as per BSNL Rules. There were certain mandatory provisions contained in Medical Rules, which need to be compulsorily complied with by its employees before and after taking the indoor medical treatment, which the complainant has failed to comply with. On merits, it was admitted that she had taken four days casual leave and lateron a telegram was received on 22.12.2006 that she had fallen ill. Intimation was received with regard to the hospitalization and operation of the complainant in DMC Hospital, Ludhiana. The medical claim of the complainant was processed by GMT, Patiala as well as CGMT, Punjab Circle, Chandigarh and the case was rejected by the competent authority as there was no provision of covering approval in this case because it did not appear to be justified as an emergent case, therefore, there was no merit in the complaint and it be dismissed.

4.                The parties were allowed by the learned District Forum to lead their evidence.

5.                In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-1, leave application Ex. C-2, certificate Ex. C-3, telegram Ex. C-4, discharge slip Ex. C-5, application Ex. C-6, authorisation letter Ex. C-7, application Ex. C-8, proforma Ex. C-9, notice sheet Ex. C-10, appeal Ex. C-11, intimation letter Ex. C-12, representation Ex. C-13, letter of Deptt. Ex. C-14, letter dt. 9.4.07 Ex. C-15, letter dt. 13.12.07 Ex. C-16, treatment bills Exs. C-17 to Ex. C-45. On the other hand, the opposite parties had tendered into evidence affidavit of Himmat Singh, SDE Ex. R-1, certificate Ex. R-2, Discharge Certificate Ex. R-3, leave application Ex. R-4, medical certificate Ex. R-5, intimation Ex. R-6, letter of CGM dt. 25.8.2007 Ex. R-7, letter dt. 30.3.2007 Ex. R-8, letter dt. 18.5.2007 Ex. R-9, letter dt. 3.7.07 Ex. R-10.

6.                After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought on the record, it was observed by the District Forum that the treatment to the complainant was of emergency nature. As per the certificate of Dr. Suman Puri Ex. C-3 proves that the complainant was admitted in emergency ward suffering from Fibroid Uterus. There is pre-authorisation letter dated 12.1.2007 Ex. C-7 proving the emergency admission and operation of the complainant and accordingly, the complaint was allowed as referred above.

7.                In the grounds of appeal, a plea has been taken by the opposite parties that in their written reply a specific plea was taken by the opposite party that the complainant was not a ‘consumer’ as defined under the Act, whereas the learned District Forum did not consider this fact, rather in a cursory manner it has been referred that the Ops has not contested that the complainant is a ‘consumer’. There is no consideration for availing the services from the Ops, which is a pre-condition to come within the definition of the ‘consumer’. The definition of the consumer has been referred in Section 2(1)(d)(ii), which reads as under:-

“2(1)(d) "consumer" means any person who—

 (ii)          hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;” 

 

8.                It is not purchase of the goods, it relates to services, therefore, it will fall under Section 2(1)(d)(ii) and its perusal would reveal that it refers to hiring or availing of services for consideration and there was no consideration to hire or avail the services by the complainant from the Ops. No doubt she was employee and in case his medical claim was not properly considered by the Ops then she has a right to approach the higher Departmental Authorities or any other recognised form but she does not fall within the definition of the ‘consumer’, therefore, she does not refer the claim under this Act. The counsel for the complainant has referred to the judgment Director/Additional Director, U.P. State Employees’ Group Insurance Directorate & others versus Smt. Ram Devi Jhansi”, 1999(2) CPC 621 in which it was observed that insurance policy under U.P. State Employees Group Insurance and saving scheme, which was a part of welfare measure to protect employee’s interest. Service under the scheme rendered free of charge. Claim was not sanctioned after the death of employee concerned. Complainant not a ‘consumer’ under the Act, therefore, the complaint was not maintainable. In that judgment, the judgment of 1996 (2) CPC 24 (SC) “State of Orissa versus District Manager, LIC and others” wherein it was observed by the Hon’ble Apex Court that there can be a contract for personal service if there is relationship of master and servant between a doctor and availing of his service and in that event the service rendered by the doctor to his employer, would be excluded from the purview of the expression under Section 2(1)(o) of the Act. 

9.                Whereas the Hon’ble National Commission in the latest judgment reported as II (2011) CPJ 294 (NC) “Central Government Health Scheme & Ors. versus S.S. Ramachandran”. In the case of medical reimbursement under Contributory Central Government Scheme in which the complaint filed by the Employee was allowed, which was further modified by the State Commission and the order of the State Commission was affirmed by the Hon’ble National Commission. The complainant in the present case is also Central Government employee and is entitled to the reimbursement of medical expenses to which the Department does not deny but the preposition is whether the complainant is covered under the definition of ‘consumer’ or not? The counsel for the appellant has relied upon the judgment of the Hon’ble State Commission whereas the latest judgment of the Hon’ble National Commission has allowed the claim of the Central Government employee under the CP Act. Certainly, the judgment of the Hon’ble National Commission is to be preferred then the State Commission. Therefore, in case the Ops have not performed their duties as required then it will amount to deficiency in services, therefore, we do not agree with the plea raised by the counsel for the appellant that the complainant does not fall within the definition of the ‘consumer’.

10.              In view of these circumstances, the complaint was rightly allowed by the learned District Forum and we affirm the findings so recorded by the learned District Forum with regard to payment of the medical reimbursement.

11.              In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

12.              The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

13.              Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.

14.              The arguments in this appeal were heard on 20.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

15.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

                                                                              (Gurcharan Singh Saran)

                                                                            Presiding Judicial Member

 

January     , 2015.                                                                                                                                                    (Jasbir Singh Gill)

as                                                                                                                                                                                         Member