AT HYDERABAD.

C.C. No.  16/2008  

Between:

Mrs. Mary D’Silva

W/o. David D’Silva

C/o. Mrs. Jayapradha

43/II RT, LIGH,  Block 8

MCH Colony, Malakpet

Hyderabad.                              .                            ***                         Complainant

                                                                    And

1. HSBC Electronic Data Processing

India Pvt. Ltd.,

Rep. by its Chairman & Managing Director

Banjara Hills, Hyderabad.

2. Dr. C. Lakshmikanth

Consultant Rheumotologist

Medinova Diagnostic Service

Somajiguda, Hyderabad.                             ***                        Opposite Parties  

Counsel for the  Complainants:                  Mr. S. Ravindranath

Counsel for the Resps:                               Paper Publication.   

QUORUM:

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

&

                                          SMT. M. SHREESHA, MEMBER

FRIDAY, THE TWENTY THIRD DAY OF  JANUARY TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          ***

          This  is a complaint filed  u/s 17  of Consumer Protection Act claiming compensation of Rs. 25 lakhs,  and Rs. 50 lakhs towards life long sufferance and mental agony and Rs. 10,000/- towards costs.

          The case of the complainant in brief is that she was appointed by opposite party No. 1 as  Customer Service Executive  by an order Dt. 19.1.2004 on a salary of Rs. 1,04,268 per annum.   While she was working in  a/c room  she developed joint pains  in her hands in 2005.   Thereupon she complained and  requested  for  medical  check  and change of  her  work place.  Basing on

which she was referred to Dr. M. Ashok Kumar  who conducted various tests  and certified that  she has been suffering from  Rheumatoid (+ve)  and put her on medication.   The doctor also recommended  ‘requires shift in duties’ which were not adhered to by opposite party No. 1 despite her repeated representations.  Later she was referred to  Dr. C. Laxmikanth  opposite party No. 2 who after examining her on  6.3.2006  opined that  she was not  suffering from a chronic disease and that nothing would happen.   He put her on medication for sometime.   He mentioned  Inflammatory Poly Arthritis in his assessment.  Later she was admitted in several hospitals  like  Mediwin Hospitals, Woodland hospitals, Kasturiba Nature Cure Hospital, Care Hospital, Kerala Sanjeevani Ayurvedic Hospital and NIMS.    Therefore there was negligence  on the part of opposite parties  in not  shifting her to another vocation.    Opposite Party No. 2 observation was very casual in nature.   She sought Rs. 25 lakhs for their negligence and deficiency in service and Rs. 50 lakhs towards life long sufferance and  mental agony etc.

          When notices were issued to the opposite parties they were returned as not claimed.   Thereupon a paper publication was issued in Eenadu a telugu daily and there was no response.

          The complainant in proof of her case filed affidavit evidence and got Exs. A1 to A18  marked

          It is an undisputed fact that the complainant was appointed as Processing Executive  in opposite party No. 1  organization on a salary of Rs. 1,04,268/- per annum evidenced under appointment letter Ex. A1 Dt. 13.1.2004.  Various terms and conditions were mentioned  including the shift work. One condition is that  the company may at any time on issuance of one month’s   prior  notice  in  writing   require to  work  on  a  shift basis,  besides  

additional hours, place of work and mobility.  She complained that  she had developed joint pains  in the hands because of operation of computers  in a/c chambers.  On that she was referred to a company’s panel doctor Dr. M. Ashok Kumar  in the month of November, 2005.   By virtue of diagnostic report at  Medinova Diagnostic Services, wherein Serum of Rheumatoid factor was found positive,  he prescribed medicines.  Though the complainant alleges that  Dr. Ashok Kumar recommended shift of duties  the  company did not shift her  and as such aggravated her disease.   We have verified the record, however, we did not find such recommendation from Dr. Ashok Kumar.   He prescribed medicines evidenced under Ex. A7 (Pages 22-23).   Later when she persisted her complaint,  she was referred to  Dr. C. Lakshmikanth, opposite party No. 2.   He referred her to very same Medinova Diagnostic Services.  By a report Dt.  6.3.2004 Serum for Rheumatoid factor was found negative vide page 34.   In  HSBI-EDPI  Medical referral  at page 32  (Ex. A8) it was  stated that  :

Q:      Is the ailment for which the staff is being referred, linked to or developed owing to working in particular shift/process? -  No.

Q:      Is the ailment of temporary or permanent nature?

          At this point we cannot conclude but this is a chronic disease.

Q:      If the change in shift/process is absolutely essential, what are the

          Reasons for the same?                                  Nil

Q:      Any other comments regarding the case.     Nil.

          Obviously having taken the medicines prescribed by Dr. Ashok Kumar, Rheumatoid  factor became negative as is evident from report Dt. 6.3.2006, based on which  opposite party No. 2 made the above recommendation.   However, she resigned her job with effect from 25.3.2006 ‘due to health reasons’.   Now she alleges that opposite party No. 2 had given an incorrect report  as such she suffered mentally and consequently resigned from her job  and therefore  entitled for compensation.

          At the outset we may state that opposite party No. 2  basing on the  reports issued by Medinova Diagnostic Services  against which the complainant did not file any case,  opined that there was no need to shift her from the job nor could happen anything to her.  Irked by this she files the complaint and   attributes negligence both  on the part of employer as well as the doctor.  The complainant could not show any terms and conditions where she was entitled as a right for shift of job in view of her ailment viz.  Rheumatoid factor in her fingers.   There is no evidence to show that this ailment was due to her work or work place in an air-conditioned  room.   In fact, when she complained,  opposite party No. 1 had referred her to various doctors,  who in turn basing on various test reports  prescribed medicines.   However, none of the doctors had stated that she was unable to attend to her job.    Even Dr. Ashok Kumar  who examined her  on 17.11.2005,  did not confirm that it was a case where she had to be shifted from the job or else the ailment will be aggravated.  She had taken employment in January, 2004 at the age of  28 years.  Besides Rheumatoid factor,  she had some other ailments  viz., antral gastritis, acute gastro enteritis with dehydration etc.    Now all this she attributes to Opposite Parties 1 & 2.  We do not see any connection with her work to the ailment  she suffered.  This is  a highly unjustifiable case. 

          At the outset,  we may state that this case cannot be termed as a consumer dispute.   She is an employee under Opposite Party No. 1,  agreed to work as a Processing Executive.  When she had a problem of  joint  pains in her fingers etc., she was referred to  medical opinion.   Opposite Party No. 2 after conducting tests opined that it was not a case  where she could be shifted.   Even Dr. Ashok Kumar did not state that she had to be shifted to some other job.   At any rate she cannot insist that she had to be shifted to her liking.   She attributes and alleges  that  “opposite party No. 1  is squarely responsible

for the aggravation of the pains and has impaired me for my life time, which is in the budding stage, so they are also responsible.”  She justified filing of the case claiming compensation referring to  the decisions,   which  have no bearing to the case.    She relied the decisions  in  Mumbai Grahak Panchayat Vs. Dr. (Mrs) Rashmi B. Radnavis  reported in 1998 (1) CPJ 49 NC  and  M/s. Cosmopolitan Hospitals  Vs. Vasantha P. Nair reported in 1992 (1) CPJ 302   wherein the cases relate to medical negligence.   There was neither  negligence nor  we can attribute deficiency in service against  opposite party No. 1 for her ailment.   This is sheer abuse of process of  Consumer Forum in filing the case.

  She relied a decision reported in AIR 1996 SC 550 where the Supreme Court made the distinction between ‘contract of personal service and contract for personal service.”  A contract for services implies a contract whereby one party undertakes to render services eg. Professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises  professional or technical skill and used his own knowledge and skill.   A contract of services implies relationship of master and servant.

We do not see how these decisions could be applied.  We do not think that  the complainant could file a case against the opposite parties solely for claiming compensation on the ground that they did not  attend on her.    She could not show any deficiency in service on their part.   We repeat that this is abuse of process of court and jurisdiction of   Consumer Fora.   We do not see any merits in the complaint.

In the result the complaint is dismissed, however without costs as the respondents did not choose to contest the matter.

PRESIDENT                                     LADY MEMBER

APPENDIX OF EVIDENCE

                                         WITNESSES EXAMINED FOR

COMPLAINANT                                                     OPPOSITE PARTIES

          None                                                                      None

DOCUMENTS MARKED FOR  COMPLAINANT:

Ex. A1;        13.01.2004           Appointment letter of HSBC

Ex. A2;        03.08.2007           Legal notice got issued by the complainant to

                                                HSBC, Hyderabad

Ex. A3;        21.08.2007           Reply notice to Ex. A2.

Ex. A4;             --                     Resignation letter of complainant

Ex. A5;        12.10.2007           Certificate issued by Advance Rheumatology

                                                Clinic

Ex. A6;             --                     HSBC – EDPI, Hyderabad.  Medical Referral

                                                of complainant.

Ex. A7;        17.11.2005           Prescription issued by Dr. M. Ashok Kumar

                                                along with test reports.

Ex. A8;                  --                 HSBC – EDPI, Hyderabad.  Medical Referral

                                                of complainant.

Ex. A9;        06.03.2006           Observations of Dr. C. Lakshmi Kanth

Ex. A10;                                   Dr. Sarvajeet Pal’s Report

Ex. A11;                                   Woodland Hospital Report

Ex. A12;                                   Kasturba Nature Cure Hospital’s Report

Ex. A13;                                   Care Hospital Report

Ex. A14;                                   KSAC Health Institute Report

Ex. A15;                                   Vijaya Diagnostic Centre Lab Reports

Ex. A16;                                   Genesis Lab Report

Ex. A17;                                   KSAC Health Institute Medical Certificate

Ex. A18;                                   NIMS Laboratory Reports.

DOCUMENTS MARKED FOR OPPOSITE PARTIES :       Nil

PRESIDENT                                     LADY MEMBER

                                         Dt. 23. 1. 2009.