SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 12 of  Consumer Protection Act 1986 for an order directing the  opposite parties jointly and severally liable  to pay compensation of Rs.20,00,000/-to the complainants along with cost  for the deficiency of service  on their part.

 The case of the complainant in brief:

   On 21/12/2017 Mrs. Remya was admitted as an in patient  on 2^nd OP’s hospital at Thalassery as IP.No.26978.  On 25/12/2017 at about 9.20 p.m she was asked to go over to the  labour room after she experienced  slight labour pain.  On 26/12/2017 at about 2.30 A.M Mrs.Remya was taken out of the labour room in a stretcher to be taken to the ICU.  Mrs.Remy’s husband see that she was completely unconscious and insensate.  The path from the labour room to the ICU the 2^nd OP’s hospital  involves walking for a considerable distance through wards where patients are admitted.  2 nurses who were wheeling Mrs.Remys towards the ICU and to unlock the gate and enter the ICU.  Thereafter 4^th OP entered the ICU, after a long period of  time 3^rd OP and one Dr.Ajithkumar entered in to the  ICU.  3^rd OP is the doctor who had been continuously attending Mrs.Remya since her  7^th month of pregnancy.  Then 3^rd OP and Dr.Ajithkumar emerged out of the ICU.  Then they informed the family members of Mrs.Remya that Mrs. Remya and her unborn child had passed away.  On 31/3/2018 the legal heirs  of Remya  instructed the counsel and the  Advocate send lawyer notice to all OPs.  Then all the OPs send reply to the same.  Thereafte on 5/10/2018  the legal heirs of Mrs.Remya, ie, the mother of Remya(Shobana) , Mrs.Remya’s husband(Manojkumar) and daughter (Yadunanda) filed the complaint against OPs 1 to 4 for entitled to get an amount of Rs.20,00,000/- as compensation for the loss suffered by them  due to the death of Mrs.Remya and the to be –born baby.  All the OP’s are jointly and severally liable to  compensate and pay damages to the complainants due to the negligent act and deficiency in service rendered by 3^rd& 4^th OPs who were in their regular course of employment under  1^st and 2^nd OPs.  Hence the complaint.

   After filing the complaint notice issued to all OPs.  All OPs  entered appearance before the commission and filed their written version contending that the complainants are not  consumers as defined in the Consumer Protection Act and the services rendered by the OPs in respect of treatment of the deceased patient also does not come within the purview of the Act.  There was no negligence or deficiency in service on the part of   OPs 3&4 as alleged by the complainants and they are not entitled to get any relief as prayed for  in the complaint.  The 1^st & 2^nd OPs having supervisory control over hospital and 3^rd & 4^th OPs  on whom no dereliction  of  duties can be proved.  The averments in the complaint are ill framed, ill advised and filed solely for the undue financial advantage of the complainants.

   On 30/9/2022 , 4^th OP filed a separate petition before the commission for hearing question of maintainability. The OP’s states that service availed by the complainant from the  OPs 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 210/2022 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 her 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 rendering 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.210/2022, but no documents produced on their part to  prove their 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.  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 states that  Section 2(1) (o) held for the reason that it has been rendered by a medical officer  in the hospital who receives 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) Consumer Protection Act 1986 , 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) 899also 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 C.P.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