West Bengal

Bankura

CC/4/2018

Smt Santana Dutta - Complainant(s)

Versus

Secretary Department of Heath and Family Welfare Govt of West Bengal - Opp.Party(s)

Durgaprasad Sarkar

10 Apr 2023

ORDER

IN    THE   DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION BANKURA

  Consumer Complaint No. 04/2018

Date of Filing: 09.01.2018

Before:                                         

1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant:  Ld Advocate Durgaprasad Sarkar

For the O.P.Ld. G.P., Bankura

Complainant  

Smt. Santana Dutta, W/O Late Bidyut Dutta, Vill.Gorabari, Bankura

Opposite Party          

1.The Secy., Deptt of H&FW, Govt. of WB, Swasthya Bhawan, Salt Lake City, Kol-91

2.Medical Superintendent & Vice Principal, BSMCH, Bankura

3.Dr. Ashok Kumar Jana, BSMCH, Bankura

FINAL ORDER / JUDGEMENT           

                                                                                                                                             

Order No.33

Dated:10-04-2023

Both parties file through advocate.

The case is taken up for argument.

At the outset Ld. G.P., Bankura appearing for O.P. No.2 & 3 i.e. Medical Superintendent & Vice Principal, Bankura Sammilani Medical College and Hospital (BSMCH) & Dr. Ashok Kumar Jana of BSMCH has raised the maintainability point as to the jurisdiction of this Commission to adjudicate the case of medical negligence at the instance of O.P.s

Ld. Advocate for the complainant has submitted before the Commission that he has no objection if the maintainability issue is heard at the first instance.

For disposal of the maintainability issue it is necessary to state some relevant facts of the case. The complainant lost her husband Bidyut Dutta, aged about 35 years who was brought to the emergency of BSMCH on 05-11-2016 at 3.43 p.m. in a Road Traffic Accident (RTA) and he was admitted without delay in the Department of General Surgery for wound exploration and decision was taken for shifting the patient to CCU but no bed was available at the relevant time. After administration and management of all necessary treatment in such RTA case the patient could not survive and he was declared clinically dead at 7.05 a.m. next day.          

                              

       Contd…..p/2                                                                       

Page: 2

 Complainant being the wife of the victim has approached this Commission labelling allegation of medical negligence against the O.P.s claiming compensation of Rs.19 lakhs.

The O.P. No.2 & 3 jointly submitted a written version giving details of treatment rendered to the victim by the concerned doctors attached to BSMCH at the relevant time and denying their liability for the death and loss of life of the victim contending inter alia that the complainant is not a consumer and as such the present complaint is not maintainable under the provision of Consumer Protection Act.

Admittedly the instant complaint has been filed against the Doctor and Medical authority attached to BSMCH which is purely a Government Hospital. In consumer cases the prime issue is as to whether the complainant is a consumer or not under the Consumer Protection Act. Section 2 (7) of the Consumer Protection Act, 2019 defines Consumer as a person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised. On one hand Consumer is Service Recipient and the Opposite Party against whom the complaint is lodged is the Service Provider. All services will not come within the purview of the Consumer Protection Act, 2019 but the services classified and defined in Section-2 (42) of the said Act does not include the rendering of any service free of charge or under a contract of personal service. In other words it can be said that if the Consumer receives service free of  charge or the Service Provider renders any service to the Consumer free of charge none of such service is covered under the Consumer Protection Act. From this point of view whether medical service rendered by the Doctors on duty attached to any Government hospital will come within the ambit of service as defined in the Consumer Protection Act when such medical service is rendered free of cost and free of charge to the victim patient.

The Apex Court has set at rest this burning issue in the celebrated decision reported in AIR (1996) SC 550 / (1995)(6)SCC 651 (Indian Medical Association Vs. V.P. Shantha & Ors) holding at Para 55 under Clause-9 as follows: -

“Service rendered at a Govt. hospital / Health Centre / Dispensary where no charge whatsoever is made from any person availing 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)(0) of the Consumer Protection Act, 1986 corresponding to Section (2) (42) of Consumer Protection Act, 2019. The payment of token amount for Registration purpose only at the Hospital/Nursing Home would not alter the position.”                                                                                                                                                                                                                                                           Contd……p/3

Page: 3

No contrary view has still been taken by the Apex Court in any other case and the Ld. Advocate for the complainant could not cite any such contrary view but the Ld. Advocate for the complainant tried to impress upon the Commission by citing a decision of the Apex Court on this issue reported in (2004) 8 SCC 56 (Sabita Garg Vs. Director, National Health Institute) but that decision is not applicable to present case as the medical service rendered by the O.P. Doctors in this case at the Govt. hospital is free of any charges and fees to all patients irrespective of their status.

The above mentioned V. Shantha’s case has also classified such services under Clause-10 at Para-55 where service rendered at Govt. hospital/Health Centre/Dispensary on payment of charges and also rendered free of charge to other persons availing such service would fall within the ambit of service as defined in the Consumer Protection Act but in this case there is no material on record before the Commission that the BSMCH where the victim patient received treatment has the system and structure of rendering services on payment of charges to any classified person. In the opinion of the Commission the case referred to on behalf of the complainant covers Clause-10 as aforesaid enunciated by the Apex Court in V.Shantha’s case.

It is therefore clear from the facts of the case and the judicial authority enunciated by the Apex Court that the medical services rendered by the O.P. to the victim patient at BSMCH is outside the purview of the expression ‘service’ as defined in the definition Clause of ‘service’ of the Consumer Protection Act and as such the victim patient being the recipient of such medical service cannot be treated as a Consumer within the meaning of ‘Consumer’ as defined in the Consumer Protection Act. The complainant has therefore no locus standi to lodge the instant complaint and without passing any order on the merit of the case the Commission can safely dismiss the complaint on this legal issue.

Hence  it is ordered……..

That the instant case is dismissed on contest as being not maintainable.

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

 

 ____________________               ________________             _________________

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