Appeared at the time of arguments

For Complainants          : Mr. Utpal Roy Chowdhury, Advocate 

For OPs                          : None for OP-1 & 2

                                       Mr. Sanjoy Kumar Ghosh, Advocate &

                                       Ms. Rupali S. Ghosh, Advocate for OP-3, 4 & 6

                                       Mr. Rabin Majumder, Advocate &

                                       Ms. Akansha Srivastava, Advocate for OP-5, 10 & 11

                                       Mr. Kumud Das, Advocate &

                                       Mr. Sukesh Ghosh, Advocate for OP-9

Pronounced on: 23^rd February 2023

ORDER

Order on I.A. No. 1346 of 2023

1.       Heard the arguments on the maintainability of the Complaint from both the sides.

2.       The learned Counsel for the OPs – 3, 4 and 6 submitted that they have taken the preliminary objections in their written version. The doctors were working in the Medical College and Hospital (OP-1), the Govt. Hospital and at present, the OPs-3 & 6 are retired from the services. The Complainant has not paid any fee to OPs- 3, 4 and 6 as a consideration. The services rendered by the OPs were free of cost as being in the employment of OP-1 Hospital. The learned Counsel relied upon the recent judgment of the Hon’ble Supreme Court in the case of Nivedita Singh vs. Dr. Asha Bharti & Ors.[1].

3.       The learned Counsel further argued that as per Nivedita Singh case (supra), OPs – 3, 4 and 6 were employed and rendering their services on behalf of the hospital. Their services does not fall within the ambit of Section 2(1)(o) of the Act, 1986, being free of charge. The doctors working there received salary, therefore, they continued to be rendered service free of charge and thus, outside the purview of Section 2(1)(o) of the Act, 1986. The learned Counsel for the other OPs adopted the same arguments.

4.       In reply, the learned Counsel for the Complainants denied that the Complainant has not paid any fee. He brought my attention to the annexure ‘c’ about the payment of charges. He brought my attention to the observation of Hon’ble Supreme Court made in V. P. Shantha’s case (supra). According to him, the patient falls under the category ‘3’ i.e. “(iii) whether charges are required to be paid by persons availing services, but certain categories of persons, who cannot afford to pay are rendered service free of charges. Therefore, the Complainant was a Consumer. He availed medical services from the OP hospital after paying the necessary charges, which are covered under Section 2(1)(o) of the Act, 1986, therefore, Nivedita Singh case (supra) is not applicable in this case.

5.       In the said judgment, the Hon’ble Supreme Court made a reference to the case of Indian Medical Association Vs. V.P. Shantha & Ors.[2] and clarified that in Nivedita Singh case the payment of service availed is necessary ingredient to file the Complaint under the Act, 1986.

The Hon’ble Supreme Court relied upon the view of the following findings recorded in V.P. Shantha case:

“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 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) 3 (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 payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. 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).”

6.       The learned Counsel for the Complainant further relied upon the V.P. Shantha case (supra). He further relied upon the judgment Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Ors.[3], wherein the Hon’ble Supreme Court observed that:

“130.  As it has been held in Savita Garg[4], that a hospital not having basic facilities like oxygen cylinders would not be excusable. Therein this Court has opined that even the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents. The aforementioned principle applies to the present case also in so far as it answers the contentions raised before us that the three senior doctors did not charge any professional fees.”

7.       The learned Counsel for the Complainant brought my attention to the number of receipts from 305 to 326. On carful perusal, it is evident that the minimum charges were paid by the Complainant for investigations, room and ICU charges. The amount was paid to the Rogi Kalyan Samiti.

8.       I have perused the written version filed by the OPs.

9.       In my view, it is evident that the patient was under treatment in the OP – hospital for more than 1 ½ months. The charges collected were not for the services rendered by the doctors. These charges are towards investigations of the patient. In my view, such charges cannot be considered as consideration towards the services of the treating doctors.

10.     Based on the foregoing discussion and respectfully following the precedents of Hon’ble Supreme Court in Nivedita Singh case (supra) and V. P. Shantha’s case (supra), in my view, the instant Complaint is not maintainable under the Consumer Protection Act, 1986. The OP-1 and the treating doctors therein are outside the purview of the Consumer Protection Act, 1986.

          The I.A. is allowed, consequently the instant Complaint stands dismissed as not maintainable under the provisions of Consumer Protection Act, 1986.