SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 35 of  Consumer Protection Act 2019 for an order directing the  opposite parties jointly and severally liable  to pay compensation of Rs.7,00,000/-to the complainant along with cost  for the deficiency of service  on their part.

 The case of the complainant in brief:

   On 7/8/2021 at about  3.P.M the complainant visited 3^rd OP due to the cut injury of 2 fingers. Then the 4^th OP sutured the cut injury without making further observation regarding injury to the nerve or tendon.  The complainant again reviewed the  3^rd OP, C.H.C Oduvallithattu on 9/8/2021,11/8/2021,16/8/2021 as directed by 4^th OP .  Even after the removal of the plaster he was not in a position to bend his 2 fingers.  Then the complainant made further consultation at higher centre Mangalore and it was revealed that due to the negligent suturing  of the 2 fingers of the  complainant by 4^th OP , nerve as well as  tendon was damaged.  The act of 4^th OP was a defect  in deficiency in service, dereliction of duty  and  gross medical negligence.  Then the complainant send a lawyer notice  dtd.16/5/2022 to OPs demanding to pay Rs.7,00,000/- as compensation for loss suffered by him.  On 20/8/2017 the  OPs send a reply to complainant.  Thereafter the complainant filed a complaint against OPs 1 to 4 are jointly and severally liable to  pay damages to the complainant  due to the negligent act and deficiency in service rendered by 4^th OP who is the regular course of employment under  1^st to 3^rd  OPs.  Hence the complaint.

   After filing the complaint notice issued to all OPs.  All OP’s  entered appearance before the commission and filed their written version contending that the complainant is not  consumer as defined in the Consumer Protection Act and the services rendered by 4^th OP in respect of treatment of the complainant also does not come within the purview of the Act.  There was no negligence or deficiency in service on the part of   4^th  as alleged by the complainant and not entitled to get any relief as prayed for  in the complaint.  The OPs 1 to 3 having supervisory control over hospital and  4^th OP  on whom no dereliction  of  duties can be proved.  The averments in the complaint are ill advised and filed solely for the undue financial advantage of the complainant.

   On 28/9/2022 , 4^th OP filed a separate petition before the commission for hearing the issue of maintainability. The OP’s states that service availed by the complainant from the  OP’s were free of charge and the case will not come within the purview of definition of service envisaged under Sec.2(42) of Consumer Protection Act 2019. So the complaint is not maintainable. Then the complainant filed objection in the IA 241/2022 to states that service means any kind of service which is made available to a consumer, whether it is free of cost or not.  Since the complainant availed his service out of free of cost  has no application at all in the present case since she is a Govt. employee and salaries from exchequer and the free of cost comes within the purview of Government policies.  The respondent doctor is receiving salary from the government and government paying the salary for availing  service to the general public hence the doctor  is not tendering service free of charge.   The petition filed by 4^th OP on an experimental basis so as to escape from her legal liability.  So the petition is not maintainable and the OP.NO.4 ‘s petition is dismissed.   Even though the complainant filed  counter in IA.No.241/2022, but no documents produced in his part to  prove his case also.

   Therefore we hold that Hon’ble Supreme Court of India decided on 13/11/1995 Mr.S.C.Agarwall, Mr.Kuldip Singh & Mr.B.L.Hasaria in Indian Medical Association vs. V.P.Shantha & Others.(1996 O (AIR)SC 550, 1996 1CCT(SC) 81,  1995(3) CPJ SC 1, 1995 3 CPR(SC) 412, 1995 8 JT 119,1995 6 scale 273, 1995 6SCC(651), 1995 SUPP 5 SCR 110, 1996 1UJ 664)

    In paragraph II clause (ii) Sec.2(1) (o)“service” means service of any description which is made available to the potential users and  includes the provision of facilities in connection with banking, financing , insurance, transport, processing , supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal services”.

   In Paragraph 45 , it deals with sec.2(1)(o) of the Act in so far as  the hospital is concerned,  the said service would fall within the ambit of Sec.2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer  receives  emoluments by way of salary for employment in the hospital.  There is no direct nexus between the payment of the salary to the medical officer by the  hospital administration and the person to whom service is rendered.

       Moreover, in para(55) clause (IX) service rendered  at a government hospital/health centre/ dispensary where  no charge whatsoever is made from any person availing the services and all patients(rich and poor) are given free services is outside the purview of the expression service as defined in Sec.2(1) O of the Act. The payment of a token amount for  registration purpose only at the hospital/nursing home would not  alter the  position.

       Thereafter the Hon’ble Supreme Court of India decided on 23/7/2020 Dr.Dhanajaya.Y.Chandrachud, Indu Malhotra, K.M Joseph J.J in Union of India & Another Vs. N.K.Srivasta & others(Arising out of  special leave petition ( c) No. 28056 of 2017 (2020) 5 ALD (SC) 189/(2020) 143 AIILR (2020) 130 CLT 250, (2020 2 CPJ 92/(2020)  2 CPJ 92/2020 4 KHC 373/(2020) 4 KLJ I/(2020) 4 RCR (Civ) 618/(2020) 9 Scale 208/2020  ) Supreme(SC) 899 also considered the Consumer Protection Act 1986 –Sec.2(1)(o).  In the above judgment also not to over ruled the findings in (1995) 6 SCC 651, Indian Medical Association vs. V.P.Shantha.

       Therefore we hold that the Sec.2(1) (o) of the Consumer Protection Act the service availed by the complainant from the  opposite parties were free of charge and the case will not come within the purview of the definition of service envisaged under Section 2(42) of the Consumer Protection Act 2019.

   In the result the petition filed by  opposite parties to hear the question of maintainability is allowed and hence this complaint is dismissed.

Sd/                                                        Sd/                                                       Sd/

PRESIDENT                                   MEMBER                                                 MEMBER

Ravi Susha                                   Molykutty Mathew.                                      Sajeesh K.P

eva           

                                                                      /Forwarded by Order/

                                                                     ASSISTANT REGISTRAR