Haryana

Yamunanagar

CC/654/2013

Naresho Devi - Complainant(s)

Versus

State Of Haryana - Opp.Party(s)

Harinder Kumar

04 Aug 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR.

 

                                                               Complaint No. 654 of 2013.

                                                               Date of institution: 06.09.2013

                                                               Date of decision: 04.08.2017.

 

Naresho Devi aged about 32 years wife of Shri Charan Dass resident of village Pandon PO Sarawan, Tehsil Bilaspur, District Yamuna Nagar.

                                     

                                                                                                  …Complainant.

                                          Versus

1. State of Haryana through Secretary, Health Department, Government of Haryana, Civil Secretariat, Chandigarh.
2. Director, General Health Services, Haryana, Panchkula.
3. Chief Medical Officer, Yamuna Nagar.
4. Dr. Poonam Chaudhary, Medical Officer, Mukand Lal General Hospital, Yamuna Nagar.

 

 

….Respondents.

 

 

BEFORE     SH. DHARAMPAL, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER.    

 

Present:       Sh. Harinder Kumar, Advocate, for complainant.   

                   GP for OP No.1 to 3

                   Shri Ramneek Sharma, Advocate for OP No.

 

ORDER (DHARAM PAL, PRESIDENT)

 

1.                The complainant Naresho Devi has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date (hereinafter respondent will be referred as OPs). 

2.                Brief facts of the complaint, as alleged by the complainant, are that the OP no.1 to 3 are the Incharge and Controller of the Civil Hospitals in District Yamuna Nagar and the OP No.4 is employed under the OP No.1 to 3 and OP No.4 is working under the control and guidance and directions of OP No.1 to 3. The complainant suffered pain in her abodemn and she got herself checked up from OP No.4 in MLGH Yamuna Nagar and the OP No.4 after getting test report had prescribed medicines and told the complainant that there is Tumor in the abdomen of the complainant and operation is required to be conducted upon her for removal of tumor and she will get rid of pain only after operation. She advised operation for tumor from the abdomen of the complainant. On 04.02.2013 complainant was operated upon in MLGH Yamuna Nagar by the OP No.4 and a sum of Rs.3500/- was got deposited from the complainant for this purpose. The complainant remained admitted in MLGH Yamuna Nagar for 7 days. On the very next date of the operation, urinal trouble occurred to the complainant and urine started discharging without any pressure. The complainant complained to the OP No.4 that her urinal problem has not been cured. The OP No.4 advised the complainant to continue taking medicines so prescribed by her and urinal problem will remove slowly, but thereafter, urinal trouble remained intact and the complainant continued to visit the OP No.4. The OP no.4 advised the complainant for tests, which were got done by the complainant from Dr. Pradeep Talhan and Dr. Nidhi Singla and thereafter, the OP No.4 prescribed medicines to the complainant, but even then urinal trouble did not cure. Thereafter, the complainant consulted other doctors and after consultation, all the doctors opined that operation was not successful, as a result of which urinal trouble has occurred to the complainant and for curing the urinal trouble, she will be again operated upon. Thereafter, the complainant consulted the doctors of PGI Chandigarh who asked the complainant to arrange Rs.50,000/-  to Rs.60,000/- for her treatment. The complainant being poor lady had no funds for her treatment. Besides this she has suffered much mental trauma and agony. The complainant has thus, prayed for directing the OPs to pay Rs.50,000/- as medical expenses, so incurred on her treatment along with interest and also to pay compensation as well as litigation expenses.

3.                Upon notice, OPs No.1 to 3 appeared and filed its written statement taking some preliminary objections such as present complaint is neither maintainable nor tenable in the eyes of law ; complaint is without any cause of action and on merit it is stated that complainant who was having complaint of pain in her abdomen, was examined by the OP No.4 and the OP No.4 had advised her to get ultra sound first and prescribed medicines. It is further submitted that in the ultra sound report dated 09.01.2013 from Pradeep’s Open MRI, 3D CT scan and ultrasound Centre, brought by the complainant, a fibroid was shown in the uterus of the complainant and on basis of that US report, the complainant was advised for operation. The complainant had wished to get her operated upon in the MLGH Yamuna Nagar as she had expressed her inability to bear the private hospital charges. She was explained by the Hospital authorities that under the Surgery package programme of Health Department, Govt. of Haryana only Rs.3500/- is to be deposited by the complainant and there is no other expenses over and above the above said amount. After having understood all norms, the complainant and her family members got ready for the said hospital MLGH Yamuna Nagar. It is submitted that on 04.02.2013 the complainant was operated upon, for which under the Surgery package programme Rs.3500/- had been charged vide receipt No.80/44 dated 04.02.2013 by the State of Haryana. The operation was successful and she remained admitted in the hospital for about 7 days for which no separate /private charges were charged. There was not a single post operative complication and the complainant recuperated in normal course. It is submitted that after operation such problem in pass of urine occurs but same was controlled with medicines and since the complainant has recuperated she was accordingly discharged from the hospital. It is further submitted that in the US report of the complainant dated 12.04.2013 done by Dr. Pradeep Tahlan, there is shown ‘no abnormality’ after surgical removal of ultrasound. The problem of urine was controlled with the medicines and as per set procedure of law and the complainant is hale and hearty after operation which was 100% successful. The complainant is blowing hot and cold in the same breath. Rest contents of the complaint were denied being wrong and incorrect and lastly prayed for dismissal of the complaint qua the OP No.1 to 3.

4.                OP No.4 appeared and filed its written statement taking some preliminary objections such as present complaint is neither maintainable nor tenable in the eyes of law ; complaint is without any cause of action and on merit it is stated that complainant who was having complaint of pain in her abdomen, was examined and had advised her to get ultra sound first and prescribed medicines. It is further submitted that in the ultra sound report dated 09.01.2013 from Pradeep’s  Open MRI, 3D CT scan and ultrasound Centre, brought by the complainant, a fibroid was shown in the uterus of the complainant and on basis of that US report, the complainant was advised for operation. The complainant had wished to get her operated upon in the MLGH Yamuna Nagar as she had expressed her inability to bear the private hospital charges. She was explained by the Hospital authorities that under the Surgery package programme of Health Department, Govt. of Haryana only Rs.3500/- is to be deposited by the complainant and there is no other expenses over and above the above said amount. After having understood all norms, the complainant and her family members got ready for the said hospital MLGH Yamuna Nagar. It is submitted that on 04.02.2013, the complainant was operated upon, for which under the Surgery package programme, Rs.3500/- had been charged vide receipt No.80/44 dated 04.02.2013 by the State of Haryana. The operation was successful and she remained admitted in the hospital for about 7 days for which no separate /private charges were charged. There was not a single post operative complication and the complainant recuperated in normal course. It is submitted that after operation such problem in pass of urine occurs but same was controlled with medicines and since the complainant has recuperated she was accordingly discharged from the hospital. It is further submitted that in the US report of the complainant dated 12.04.2013 done by Dr. Pradeep Tahlan, there is shown “No Abnormality” after surgical removal of ultrasound. The problem of urine was controlled with the medicines and as per set procedure of law and the complainant is hale and hearty after operation which was 100% successful. The complainant is blowing hot and  cold in the same breath. Rest contents of the complaint were denied being wrong and incorrect and lastly prayed for dismissal of the complaint qua the OP No.4.

5.                In support of his case, learned counsel for the complainant tendered into evidence her affidavit as Annexure CW/A and tendered documents as Annexure C1 to C34 and closed the evidence on behalf of complainant.

6.                On the other hand, learned Government Pleader for the OP No.1 to 3 tendered into evidence affidavit of Dr. Vijay Dhaiya, SMO  as Annexure RW1/A and closed the evidence on behalf of OP No.1 to 3.

7.                Learned counsel for the OP No.4 tendered into evidence affidavit of Dr. Poonam Chaudhary, Medical Officer as Annexure RW1/B and closed the evidence on behalf of OP No.4.

8.                We have heard learned counsel for the parties and have also perused the record available on the file. Learned counsel for the complainant reiterated all the facts mentioned in the complaint and prayed for acceptance of the complainant. Whereas on the other hand, learned counsel for the OPs reiterated the facts of the written statement and argued that the complainant is not a consumer in preview of Section 2(1) (o) of Consumer Protection Act, as no fee/charges was obtained by the OPs on medical treatment given to the complainant because all the treatment was provided free of costs without any consideration. Learned counsel for the OPs has relied upon the case law titled as “Jacob Mathew (Dr.) versus State of Punjab and others 2005(3) CPJ page 9 Supreme Court and also referred another case law titled as “Medical Association Versus V.P. Shantha and others, 1996(1) CLT, Page 1 as well as case law titled as “Rajesh Vs. Prof. Dr. Rajender Nath and others, Revision Petition No.3967 of 2014 decided on 07.05.2015 (NC), wherein it has been that : -

(iv)              Consumer Protection Act, 1986 Section                          2(1)(o) & (c), (d) (g) and 14-Medical                                   Services –rendered free   of charge to                                  everybody availing the said services – Does                              not fall within the definition                                            of Services.

(v)                Consumer Protection Act, 1986 Section                         2(1)(O), (c), (d), (g) and 14-Medical                                  Services- Whether the payment of token                      amount for registration purpose can be                          treated as charge-Held- No.

 

9.                At the very outset, the legal arguments of counsel for OPs are that complainant does not come under the definition of ‘consumer’ as per Consumer Protection Act Section 2(1)(o) which is reproduced as under:-

 "service" means service of any description which is made avail­able to potential users and includes, but not limited to, the provision of  facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

 

10.               We have gone through the section 2(1)(O) of the Consumer Protection Act, in the present case the complainant is treated/operated in Civil Hospital and nothing was charged by the treating doctor. Under the provision of Consumer Protection Act, Service without any consideration is no service. So we are of the considered view that the complainant does not fall within the definition of “Consumer” as defined under Section 2(1)(d)(O) of the Consumer Protection Act, because the complainant hired the services without any consideration.

11.               Resultantly, in the circumstances discussed above, we are of the considered view that the complainant does not fall under the preview of Consumer Protection Act and the complaint is hereby dismissed with no order as to cost. A copy of this order be sent to the complainant free of costs.  File be consigned to record room after due compliance.

 

Announced in open court.04.08.2017

 

                                                     (DHARAMPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI

 

 (VEENA RANI SHEOKAND)         (S.C.SHARMA)

 MEMBER                                          MEMBER

 

Note: Each and every page of this order has been duly signed by me.

 

                                                     (DHARAMPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI