RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No. 1297 of 2012
Medical Superintendent, Community Health Centre,
Muradnagar, District Ghaziabad through
Dr. Vikasendu Agarwal. …..Appellant.
Versus
Smt. Parveen w/o Mohammad Shamshad,
R/o Pathano ka Mihalla, Muradnagar,
District, Ghaziabad. ….Respondent.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Govardhan Yadav, Member.
Shri Anupam Dwevedi for the appellant.
Shri Govind Singh for the respondent.
Date 1.8.2018
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
This appeal has been filed against the judgment and order dated 30.12.2010, passed by the District Forum, Ghaziabad in complaint case no.425 of 2008.
The facts giving rise to this appeal, in short, are that according to the complainant her tubectomy operation was done in the Community Health Centre, Muradnagar on 25.2.2008. She was already having six children hence, she opted for this operation but after a month only she missed her menstrual cycle then she contacted the doctor in the Health Centre who did not do anything and refused to treat her. The complainant, thereafter, gave birth of a girl child on 6.11.2008 which was a result of an ineffective operation committed by the appellant/OP who has put the complainant in severe financial strain hence, she filed a complaint before
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the forum below wherein the notices were issued but none appeared hence, an exparte order dated 30.12.2010 was passed by the Forum below as under:-
"परिवाद-पत्र विपक्षी मुख्या चिकित्सा अधिकारी सामुदायिक स्वास्थ केन्द्र मुरादनगर गाजियाबाद को आदेशित किया जाता है कि वह परिवादिनी को एक लाख रूपये बतौर मुआवजा अदा करें। इस धनराशि पर परिवाद संस्थित करने की तिथि से अदायगी के बीच 06 प्रतिशत (छ:) प्रतिशत प्रतिवर्ष की दर से ब्याज भी देय होगा।“
Feeling aggrieved with the impugned order the appellant has filed this appeal mainly on the grounds that the appellant/OP did not receive any notice of the case and the forum has passed orders without ascertaining as to whether the notices were served on the appellant/OP or not. Besides, the appellant/OP did not provide service as defined under section 2 of the Consumer Protection Act, as the services were provided by the OP free of charge hence, the complaint could not be filed under the provisions of the Consumer Protection Act but the ld. Forum has passed order against the provisions of the Consumer Protection Act, therefore, the impugned order is liable to be set aside and the appeal allowed.
Heard counsel for the parties and perused the records.
In this case, it is not disputed that the complainant’s tubectomy operation was done at the Community Health Centre, Muradnagar. It also does not appear to have been challenged that the complainant conceived and delivered a child subsequent to such an operation. The disputed point according to the appellant is that the complainant was not a consumer as the services were provided by the appellant free of charge, therefore, the complainant was not a consumer and
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hence, the complaint was not maintainable under the Consumer Protection Act.
So now it is to be seen as to whether the complainant was covered under the definition of ‘consumer’ vis-à-vis the appellant and thereafter, it is to be seen as to whether the appellant committed any deficiency in service in doing the operation with negligence whereby the complainant conceived despite sterilization operation. If so, its effect.
Since both the points are connected to each other therefore, they are decided together.
In this regard, it is argued by the ld. Counsel for the appellant that the complainant had opted for an sterilization operation of Tubectomy for which she was not charged anything and therefore, no consideration which is an essential ingredient for a consumer for filing of a complaint case under the Consumer Protection Act was missing in it.
Section 2(1) (d) of the Consumer Protection Act provides as under:-
(d) “Consumer” means any person, who:-
- Buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a persons who obtains such goods for resale or for any commercial purpose; or
- (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
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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 purpose.)
So as per this section a consideration has either to be paid or promised to be paid in future for a person to qualify as a consumer but in the instant case, the complainant did not pay any consideration for the aforesaid operation therefore, the complainant did not fall within the definition of the consumer. The ld. Counsel for the complainant argues that in a case of medical negligence, it has been held by the Hon’ble National Commission in I(2007) CPJ 167 (NC), Gauri Shankar Padhi & Anr. Vs. State of Orissa & Ors. wherein it has been held that “services rendered by hospital fall within ambit of ‘service’ under Section 2(1)(o), irrespective of fact that service rendered was free of charge to persons who do not pay for it – Free service would also be ‘service’ and recipient a ‘consumer’ under Act and on the basis of the aforesaid case law, it is argued that even if the service was free of charge then too the complainant fell within the definition of the consumer and hence, the complaint was maintainable. But, we find that the facts of the aforesaid ruling are not applicable to the facts of this case as the complainant in the aforesaid case was a government servant who was granted medical facilities as part of service conditions and therefore, a government servant was entitled to free medical services as the government bears the expenses of medical treatment of an employee as it is a part of the service condition of the complainant but in the instant case,
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the complainant does not claim herself to be a government servant who was entitled to free medical aid whereby she could claim herself to qualify as such to be a consumer under the aforesaid ruling. The complainant cannot be treated at par with a government servant who could claim service of the OP free of charge specially in a case where the operation was done entirely free of charge, therefore, it cannot be said that the consideration was paid in the instant case by the complainant. The facts of the aforesaid ruling are not application to the facts of the instant case and hence, the complainant could not claim any benefit out of the aforesaid ruling.
The ld. Counsel for the complainant has also filed another ruling of the Hon’ble Supreme Court Civil Appeal no.2897 of 2000, State of Haryana and Ors. vs. Smt. Santra decided on 24.4.2000, wherein it has been held that in a sterilization operation if there is failure on account of medical negligence, the complainant suffered additional economic burden then the State is vicariously liable but this ruling is also not application in the facts of the instant case as in the case cited above, the case was not filed under the Consumer Protection Act, rather a civil suit was filed. So, the aforesaid ruling is not applicable to the facts of the instant case as the instant case was filed under the provisions of the Consumer Protection Act and not as a civil suit as in the case cited above.
The ld. Counsel for the appellant has cited a case law of (1995) 6 Supreme court Cases 651, Indian Medical Association vs. V.P. Shantha and others, wherein it has been
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held that such medical service which are rendered free of charge to everybody availing such service, do not fall within the definition of service. The case of the complainant is squarely covered by this ruling of the Hon’ble Apex Court where if the medical services are rendered free of charge then they do not fall within the definition of service and therefore, in the instant case where sterilization operation was done free of charge hence, operation does not fall within the definition of service under the provisions of the Consumer Protection Act. So, on the basis of the discussions made above, it is clear that the complainant did not fall within the definition of the consumer and the operation done by the appellant/OP was not ‘service’ under the provisions of the Consumer Protection Act and therefore, the complaint was not maintainable under the provision of the Consumer Protection Act. The Forum below grossly erred in allowing this complaint and therefore, the impugned order is liable to be set aside and the appeal allowed.
ORDER
The appeal is allowed. judgment and order dated 30.12.2010, passed by the District Forum, Ghaziabad in complaint case no.425 of 2008 is set aside and the complaint dismissed.
Parties to bear their own costs.
Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Govardhan Yadav)
Presiding Member Member
Jafri PA-II
Court No.5
