West Bengal

Bankura

CC/13/2006

Dr. Pradip Kr. De - Complainant(s)

Versus

Principal BSMCH and othres - Opp.Party(s)

Jayanta Kr. Mukherjee

26 Jul 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION, BANKURA

  Consumer Complaint No. 13/2006

Date of Filing: 09.03.2006

Before:                                        

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant:  Ld. Advocate Jayanta Kr. Mukhopadhyay

For the O.P. 2a & 2b : Ld. G.P., Bankura   For O.P. 2c: Ld. Advocate S. Banerjee

 

Complainant 

Dr. Pradip Kr. De, M.O.Bishnupur S.D. Hospital, R/O Katjuridanga, Bankura

Opposite Party

2A. Principal, BSMCH, Bankura   2B. Superintendent, BSMCH, Bankura   2C. Dr. Mousumi Nioygi, Anaesthesiologist, BSMCH, Bankura   2D.Dr. Debananda Mukherjee, M.O., BSMCH, Bankura

FINAL ORDER / JUDGEMENT            

                                                                                                                                               

Order No.156

Dated:26-07-2023

Complainant is present by filing hazira through advocate.

O.P. 2A and 2B file hazira through Ld. G.P.

O.P. 2C files hazira through Advocate.

No step is taken by the O.P. 2D

The case is fixed for argument.

After hearing argument from both sides the Commission proceeds to dispose of the case as hereunder: -

The Complainant’s case is that his wife Smt. Sikha Dey who was posted as a Nurse at BSMCH, Bankura at the relevant time conceived second times after birth of the first caesarian male baby and on 04/08/2005. She was admitted at BSMCH, Bankura and on that very day at 7 p.m.   Lower Uterine Caesarian Section (LUCS) was done by general anaesthesea of O.P. 2C though there was no labour pain or emergency condition. In the case of first issue there was no reaction against anaesthetic drug but in case of delivery of the second male issue on 05/08/2005 (LUCS) done through general anaesthesia and after the aforesaid operation the sense of the patient was not responsive and the attending doctors could not be available at that very moment and this time her condition was deteriorating and the Complainant was pressurized to remove her at any Nursing Home but according to the advice of the senior Cardiologist and Physician she was removed to ICCU and on the next date i.e. on 05/08/2005 finding no improvement of his wife the Complainant shifted her at Apollo Gleneagles Hospital, Kolkata and admitted there at 8.20 p.m. where she expired at 8.35 p.m. due to acute Left Verticular Failure Cardiac Arrest. Thereafter on 26/08/2005 the Complainant made a complaint before O.P. 2B for proper inquiry and after getting no response therefrom the Complainant has approached this Commission alleging medical negligence against O.P. Doctors/Authority claiming adequate compensation for the same.

                                                                                                                                                                                      Contd……p/2

                                                                                                          Page: 2

O.P. 2A & 2B contested the case by filing a written version denying all the material allegations made in the complaint contending inter alia that all requisite medical management was arranged for the patient but as the condition of the patient did not improve in spite of best efforts the Complainant took release of his wife on ‘Discharge on Risk bond’ and so the O.P.s have no negligence for the death of the patient.

O.P. 2C also filed written version denying the Complainant’s case pleading inter alia no medical negligence on her part behind the death of the patient.

O.P. 2D also filed a written version in the same tune like other O.P.s

The Complainant filed affidavit in chief followed by questionnaire put by O.P.2d and also reply by the Complainant with affidavit against the statement of 2c.

The case thereafter proceeded for argument and at the first hearing of argument maintainability issue was raised on behalf of the O.P.s and accordingly the Commission proceeds to dispose of the same.

Admittedly BSMCH, Bankura is purely a State sponsored District Govt. Hospital where the wife of the Complainant underwent caesarian operation as long back as on 04/08/2005 giving delivery of  a male child but unfortunately she could not survive but succumbed to the operational hazards on 05/08/2005 at Apollo Gleneagles Hospital, Kolkata.

It is also an admitted fact that all the medical services and investigations rendered by the O.P. Hospital / Doctors to the victim patient are all free of charges and the Complainant at the time of hearing could not produce any scrap of paper in support of payment of any sort of charges/fees levied by the said Hospital.

It is now well settled by the celebrated decision of the Apex Court in the case of India Medical Association Vs. V.P. Shantha reported in AIR 1996 SC 550 and re-affirmed in a subsequent decision dated: 07/12/2021 in Nivedita Singh Vs.Asha Bharati & Ors. in Civil Appeal No.103/12 that such medical service from the Govt. Hospital free of charges is not service within the definition of Service in the Consumer Protection Act and as such the Complainant being the recipient of such free medical service is not a consumer within the definition of Consumer Protection Act.

Ld. G.P., Bankura appearing for O.P. 2A and 2B and the Ld. Advocate appearing for O.P. 2C have also referred to the aforesaid decisions and vehemently opposed the claim of the Complainant on such ground but the Ld. Advocate appearing for the Complainant has referred to a decision of the Apex Court dated: 08/05/2007 in Civil Appeal No.4965 of 2000 Kishore Lal Vs. Chairman, Employees’ State Insurance Corporation and advanced an argument that though the Complainant received free medical services from the aforesaid Govt. Hospital for the treatment of his wife but his wife being a Nursing staff of the same Hospital at the relevant time was a beneficiary under West Bengal Health Scheme for which her treatment at the said hospital did not cost anything and as such from that point of view such medical service should come within the purview of the Consumer Protection Act.

                                                                                                                                                                                  Contd…….p/3

Page: 3

Ld. Advocate for the Complainant has also referred to another decision of the Apex Court reported in 2005 (I) Scale 600 (Lachman Thamappa Kot Giri Vs. General Manager, Central Railway and others where relying on the V. Santha’s Case it was held that medical service rendered to an employee and his family members at the Railway Hospital which are given as part of the condition of service to the employee would not be treated as free service within the definition of the Consumer Protection Act.

The Commission has gone through both the above referred two decisions. The First decision relates to the medical treatment in the ESI Hospital where the system of reimbursement is prevalent and as such such medical service in the ESI Hospital was not treated as a free service.

In the Second decision the medical treatment was rendered at the Railway Hospital as the victim patient was a Railway employee where medical service is rendered to the Railway employees as a part of condition of service and the Employer bears expenses of such medical treatment of the employee.

Both the decisions are distinguishable from the instant case as the victim patient was not treated at ESI Hospital or at Railway Hospital and moreover there is no such condition of service of the victim patient who is a State Govt. employee which provides that free medical service in a Govt. hospital is a part of  condition of such service.

In this case neither the State Govt. nor her Employer has borne any medical expenses of the victim patient incurred at the BSMCH, Bankura nor she got any reimbursement of such medical expenses from any Authority. If the medical service is free of charge no question of reimbursement and payment by the Employer arises for consideration. So the principle of law enunciated in V. Shantha’s case is squarely applicable to the present case upon consideration of the facts that the victim patient though an employee of the State Govt. did not receive any medical reimbursement from the concerned State hospital or the Employer Authority under any Govt. scheme.

In Manish Kumar Vs. All India Institute of Medical Sciences, New Delhi and Ors. In C.C. No.261/18 Ld. NCDRC, New Delhi on 07/02/2023 has, relying on V.P. Shantha’s case, held that in spite of contribution to Health Scheme the benefit of Consumer Protection Act cannot be extended to the victim patient even if she is a Sister Grade-1 Nurse.

The Commission is therefore of the confirm view that the medical services rendered by the BSMCH, Bankura and received by the victim patient is fully a gratuitous service free of all charges and as such such service does not come within the purview of the definition of service under the Consumer Protection Act and consequently the Complainant or any beneficiary thereof cannot be treated as a consumer within the meaning of the Consumer Protection Act.

                                                                                                                                                                                             Contd……p/4

Page: 4

Accordingly the instant case is not maintainable on that sole legal ground and the Commission should not detain further to decide the merit of the case as the maintainability issue strides at the root of the jurisdiction of this Commission to proceed further on the merit of the case.

For the reasons stated above the case miserably fails.

Hence it is ordered……..

That the case be and the same is dismissed on contest against the O.P.s but all without cost.

The Complainant is however at liberty to pursue Civil remedy before the competent Court of Law in accordance with law to which Section-14 of Limitation Act shall apply.

Both parties be supplied copy of this order free of cost.

 

 ____________________                _________________          _________________

HON’BLE   PRESIDENT           HON’BLE MEMBER       HON’BLE MEMBER