Delhi

North

CC/109/2019

MANOJ - Complainant(s)

Versus

MEDICAL SUPERINTENDENT - Opp.Party(s)

10 Jan 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No. 109/2019

In the matter of

Sh. Manoj,

House NO. 375, Gali No. 8,

Sagar Market, 4½ Pusta Sonia Vihar,

Delhi-110094                                                …    Complainant

vs

Medical Superintendent

Lok Nayak Hospital,

Jawahar Lal Nehru Marg,

New Delhi-110002                                               …      Opposite Party No. 1

 

Dr. Saikat Jena,

Senior Resident,

Department of Orthopedics,

Lok Nayak Hospital,

Jawahar Lal Nehru Marg

New Delhi-110002                                               …      Opposite Party No. 2

         

Dr. V.K. Gautam,

Unit Incharge,

Department of Orthopedics,

Lok Nayak Hospital,

Jawahar Lal Nehru Marg

New Delhi-110002                                               …      Opposite Party No. 3

ORDER

10/01/2023

(Divya Jyoti Jaipuriar)

By this order, we will be deciding the application filed on behalf of OP-1 seeking dismissal of the complaint. We issued notice to this application, but the Complainant has not filed any reply. As there was no appearance of the Complainant, we only heard the arguments on behalf of the Ld. Advocate appearing for OP-1.

In the case in hand, the Complainant, after sustain injury while playing Kabaddi, was treated at OP-1 hospital allegedly by OP-2 and OP-3 doctors. The treatment has been challenged in this complaint on the ground of medical negligence.

It is argued by Shri Mukesh Kumar, Ld. Advocate for the OP-1 that in view of the judgment of Hon’ble Supreme Court in the matter of Indian Medical Association v. V.P. Shantha [(1995) 6 SCC 651], the services rendered by government hospital is not covered under the definition of “service” as defined in the Consumer Protection Act. He has relied on the following conclusion of Hon’ble Supreme Court in IMA judgment (supra):

“55. On the basis of the above discussion, we arrive at the following conclusions:

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A “contract of personal service” has to be distinguished from a “contract for personal services”. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a “contract for personal services” and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act.

(4) The expression “contract of personal service” in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act.

(5) 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)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-government hospital/ nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service — is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act.

(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(9) Service rendered at a government hospital/ health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service — is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under Section 2(1)(o) of the Act.”

Ld. Advocate for the OP-1 also argues that as the OP-1 hospital is not charging any charges whatsoever from the patients for the services so rendered by it and in the case in hand the Complainant has also not made any payment to the hospital for the services so rendered to him by the OP-1 Hospital. He also argues that in view of the IMA judgment (supra), the complaint is liable to be dismissed.

We have perused the records and have also gone through the pleadings of the parties. It is indeed a fact that the Complainant herein has taken treatment from OP-1 hospital, which is a government hospital. It is also a fact that the OP-1 hospital does not charge whatsoever for the treatment/ services rendered by it to any of the patients.

In a subsequent judgments in the matter of Nivedita Singh vs Dr Asha Bharti [CA No. 103/2012 decided on 07/12/2021] and in the matter of N K Srivasta [2020 (9) SCALE 208], Hon’ble Supreme Court has relied on the IMA judgment (supra) and has held that services rendered by a government hospital rendering services to all its patients free of cost across the board, are out of the purview of the application of the Consumer Protection Act.

In view of the above, we see force in the application filed by the OP-1 and allow the same.

At this stage, we also observe that although there is no application filed by OP-2 and OP-3 doctors seeking dismissal of the complaint, but the judgments so referred above are also applicable in their cases as well. In Nivedita Singh (supra) judgment, Hon’ble Supreme Court has also held that the medical officers who are employed in government hospitals are also out of the purview of the Consumer Protection Act so long as the said doctor is also offering free of service on behalf of the hospital.

In the case in hand, the OP-2 and OP-3 doctors are treating doctors in the OP-1 hospital, who are rendering services on behalf of the hospital. Hence, while extending the benefit of the judgments of Hon’ble Supreme Court referred above, we are of the opinion that the complaint is also liable to be dismissed qua OP-2 and OP-3.

As a result, we dismiss the complaint qua all OPs. However, in the interest of justice, we grant liberty to the Complainant to seek any other appropriate remedy against the OPs, if the same is available to him under the laws of the land. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order. While approaching the forum of appropriate jurisdiction, the Complainant may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs PSG industrial Institute [(1995) 3 SCC 583], for explaining the delay in initiating appropriate proceedings, if the same is available to him.

Order be supplied to the parties in accordance with rules. Order be also uploaded on the website. Thereafter file be consigned to the record room.

 

 

_________________________

Divya Jyoti Jaipuriar, President

 

 

_________________________

Ashwani Kumar Mehta, Member

 

 

_________________________

Harpreet Kaur Charya, Member