IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the    20^th    Day of  August   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

      Sri.Stanly Harold, B.A.LLB, Member

                                                            IA No.111/2019

                                                                      IN

                                                              CC.282/2018

Dr.Pushpa Ratnakumar                      :         Petitioner/5^th opposite party

Gynecologist

Victoria Government Hospital

Kollam.

[By Adv.A.Sudheer Bose]

V/s

Sathi.L                                               :         Cr.Petitioner/ Complainant

W/o Ravi Sankar

Earath Veettil

Santhi Nagar-87

Kureeppuzha Cherry

Kavanad P.O, Kollam.

[By Adv.G.Beno, Adv,Chythanya Beno&Adv.Archana.S]

FINAL ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

            The above  IA has been filed by the Advocate appearing for the  5^th opposite party U/s 13(3B) of the Consumer Protection Act challenging maintainability of the complaint.  In support of the petition the 5^th  opposite party has filed an affidavit by swearing as follows:-

          The original complaint has been filed claiming compensation alleging deficiency in service on the part of the opposite parties No.1 to 5 with a precise allegation that it is because of the negligence of the 5^th opposite party who is a Government Doctor,  the complainant has sustained physical strain and mental agony.  The 5^th opposite party has been working under the opposite parties No.1 to 4 and discharging her duties during the course of her employment under the Government of Kerala.  The complainant herein has availed service from a Government hospital and no payment towards treatment charge was paid to any of the opposite parties.  Since the service availed by the complainant herein  is without consideration, no consumer dispute can be raised by the complainant and hence she is not a consumer as per the Act.  The maintainability of the complaint is to be heard as preliminary issue before proceeding to trial against the 5^th opposite party if  not it will cause irreparable loss  and injury to the 5^th opposite party.  Therefore the 5^th opposite party prays to hear the maintainability of the complaint as preliminary issue before proceeding further. 

The respondent filed detailed objection raising the following contentions.  The petition is not maintainable either in law or on facts.  The petitioner has filed the petition by suppressing material fact inorder to get favorable order.  The above case has been filed by the complainant claiming compensation for the negligence committed by 5^th opposite party while the complainant undergoing treatment in the 3^rd opposite party hospital.  The contention of the 5^th opposite party that the complainant is not a consumer as per the definition  of Consumer Protection  Act 1986 as she is not made any payment towards treatment charge nor paid any amount to the 5^th opposite party and hence there is no consideration is devoid of any merit.

          The 5^th opposite party who is a doctor of a Government hospital owes to certain duties to the complainant as a patient who consulted her for her illness.  The deficiency of the 5^th opposite party resulted in negligence.  The complainant approached the  3^rd opposite party hospital for treatment and the 5^th opposite party is working  as a doctor at the 3^rd opposite party.  The 5^th opposite party  has been getting salary for the service rendered under the 3^rd opposite party.  The 1^st opposite party State is paying salary to the 5^th opposite party and the State is spending amount for the welfare and  health care of the citizens in the State.  When the complainant avails service from the 3^rd opposite party free of cost with the approval of the 1^st opposite party it is sufficient to include the complainant as a consumer as per the definition.  Free service would also be service as the recipient is a consumer under the Act.  The contention raised by the 5^th opposite party regarding the maintainability of the complaint is baseless and the petition has no legal nexus and liable to be dismissed.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether the complainant would come under the definition of consumer?
2. Is the complaint filed against a Government doctor for availing treatment at the Government hospital is not maintainable?
3. Reliefs and costs.

Point No.1&2

For avoiding repetition of discussion of materials these 2 points are considered together.According to the 5^th opposite party who filed this maintainability petition, she is a Government doctor who has been workingunder the opposite parties No.1 to 4 and has been discharging her duties during the course of her employment under the Government of Kerala and as the complainant herein has availed service from the Government hospital and no payment towards treatment charges has been made to any of the opposite parties she would not come within the definition of consumer and hence she is not entitled to raise a consumer dispute under the Consumer Protection Act 1986. The learned counsel for the complainant has opposedthe above contention of the 5^th opposite party on the ground that 5^th opposite party who treated the complainant was negligent in discharging her duty and hence there is deficiency in service on the part of the petitioner/5^th opposite party.That the 5^th opposite party has been working as a Government doctor and was getting salary from the Government service rendered under the 3^rd opposite party and the 1^st opposite party Government is paying salary to the 5^th opposite party and the State is spending amount for the welfare and health care ofthe citizens in the State and when the complainant availed of service from the 3^rd opposite party free of cost with the approval of the 1^st opposite party the complainant would come within the definition of consumer.It is further contented that free service also would be service and the recipient of a free service is a consumer under the Act.

The learned counsel for the respondent/5^th opposite party by relying onthe dictum laid down by the full bench of the Hon’ble Supreme Court in Indian Medical Association Vs V.P Santha and others reported in 1995 KHC 1006 has argued that in some of the Government hospitals charges are required to be paid by persons availing services.But certain categories of persons who cannot afford to pay are rendered service free of charges and in such circumstances the expenses incurred for providing free services are met out of the income from the services rendered to the paying patients.The service rendered by such doctors and hospitals to non-paying patients undoubtedly fall within the ambit of service defined U/s 2(1)(o) of the Consumer Protection Act.But the complainant herein has no such case in her objection that though she has been treated free of charge the opposite parties have levied charges for some other patients and therefore the free service rendered to herself shall not be excluded from the definition of service U/s 2(1)(o) of the Consumer Protection Act.

It is true that the complainant produced Ext.A1 series carbon copy of hospital bills claimed to have been received from the 3^rd opposite party.But on perusal of the above bills it is seen that the bills have been issued by Hospital Development Committee, Government Victoria hospital, Kollam collecting various amounts such as Rs.240, Rs.180, Rs.20, Rs.90, Rs.20 and Rs.70 under various heads such as hospital stoppage, major operation, lab charges, ambulance charge etc and therefore according to the complainant she would come within the definition of consumer.But she has no such case in the objection to the maintainability petition or in the original complaint.The learned counsel for the 5^th opposite party has produced the Kerala Panchayath Raj Rules relating to the Management Committee of Public Health Institutions.Under Clause(6) of the said rules one Hospital Development Fund has to be constituted and amount has to be realized from the public who has been availing treatment from the hospital fees and chargesat the rate prescribed by the Government.In view of the above rules and also in view of Ext.A1 series receipts it is crystal clear that the amount covered under A1 series receipts are realized by Hospital Development Committee and not realized by any of the opposite parties as charges for the service rendered by the petitioner/5^th opposite party.Even the complainant has no case either in the complaint or in the written objection to the maintainability petition that she has availedservice of 5^th opposite partyby paying any service charge.

The main allegation of the complainant is that as the Government has been paying salary to the 5^th opposite party the same is paid on behalf of the complainant also who availed the service of the doctor free of charge and therefore there is consideration and hence she would come within the definition of consumer.We find no force in the above claim of the original complainant in the light of full bench decision by Hon’ble Supreme Court in V.P Santha’s case.

The learned counsel for the original complainant/respondent in the maintainability petition has argued that the complainant is a poor lady who sustained much mental agony, discomfort, inconvenience etc on account of negligence on the part of the opposite parties.The life expectancy of the complainant is reduced and she is not in a position to conduct a normal healthy life and thatnow the complainant is not able to do her day today affairs and need the assistance of others.It is true that the allegations in the original complaint would primafacie indicate that this is a hard case and the complainant has sustained much health problems and mental agony, inconvenience etc for which she is entitled to get compensation from the opposite parties.But as the complainant would not come within the definition of consumer andthe service rendered by the opposite parties would not come within the definition of service defined u/s 2(1)(o) of the Consumer Protection Act,this Forum/Commission is having no authority to consider the grievances of the complainant even if it is grave in nature and to grant relief to the complainant.But complainant is entitled to seek remedy from the Civil Court concerned.If she is not able to pay court fee to claim a huge compensation she can very well institute a suit for compensation as an indigent person under Order XXXCivil Procedure Code.

On evaluating the entire materials available on record we find that the complaint would not come within the definition of Consumer as defined under Section 2(1)(o) of the Consumer Protection Act 1986 and the present complaint is not maintainable before the Consumer Disputes Redressal Forum/Commission.The points answered accordingly.

In the result the maintainability petition(IA.111/2019) stands allowed and the original complaint stands dismissed with the observation that the complainant is entitled to agitate her grievances and seek remedy from the Civil Court concerned if she chooses to do so.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   20^th   day of  August 2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent