Tamil Nadu

South Chennai

CC/161/2016

K.Vedantham - Complainant(s)

Versus

The Head of Department, Orthopaedics & Travmotology Unit-I Rajiv Gandhi Government General Hospital - Opp.Party(s)

E.Maharajan

09 Aug 2017

ORDER

                                                                        Date of Filing :   08.03.2016

                                                                        Date of Order :   09.08.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.161/2016

WEDNESDAY THIS  9^TH DAY OF AUGUST 2017

 

K. Vedantham,

S/o.Late V. Krishnasamy,

1^st Floor, No.4, 3^rd Street,

Shri Sakthi Vijayalakshmi Nagar,

Velachery, Chennai 600 042.                      .. Complainant

                                        ..Vs..

 

1.  The Head of the Department,

Orthopaedics & Traumatology Unit-I,

Rajiv Gandhi Government

General Hospital, Chennai.

 

2. The Dean,

Rajiv Gandhi Government

General Hospital, Chennai.                        .. Opposite parties.

 

 

Counsel for Complainant            :    M/s. E.Maharajan  

Counsel for opposite parties       :    Exparte.  

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay compensation of Rs.10,00,000/- towards mental agony and stress and also to pay cost of the complaint.

 1. The averments of the complaint in brief are as follows:

         The complainant submit that he is a retired Grade-I Assistant Public Prosecutor.   He  met with an accident in the year 1998 resulting his Right Hip was injured and an artificial Hip Joint had been implanted.  Thereafter on 19.9.2015 the complainant fell down in his bath room  resulting his Hip joint got dislocated.    After due consultation with the Doctors he was advised to replace the Hip Joint Implant.  Since the cost of the surgery is very high in Private Hospital, the complainant went to the opposite party Government Hospital and was admitted as in patient on 21.9.2015 in  Orthopaedic Ward, where the complainant was instructed to pay a sum of Rs.900/- per day towards rent. 

2.     Further the complainant state that the 1^st opposite party personally attended and informed the complainant that the surgery should be performed within few days for that a fresh implant should be arranged.   Even though the cost of the implant is very high, the complainant managed to arrange the same through one Mr.Loganath and ready to undergo surgery.    Due to the negligence and delay in attending the complainant, the implant which got dislocated intrudes into the complainant’s body and it had damaged his bone and pus was formed.   The complainant further state that he sustained severe pain also; on 4.11.2015 the surgery was arranged, a large quantity of pus with bad smell were cleaned  and the plate was fixed on the same day and the complainant discharged was only on 27.11.2015.   Due to the enormous delay in performing the surgery the complainant undergone surgery pain, mental agony and monetary loss etc.      As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

3.     Inspite of receipt of notice the opposite parties 1 & 2  did not appear before this forum and therefore they were set exparte.  

4.     Though the 1^st  & 2^nd  opposite parties remained exparte this  Forum wants to dispose this compliant fully on merits with available materials before this forum. 

5.     In such circumstances,  in order to prove the allegation made in the complaint the proof affidavit is filed by the complainant as his evidence, and also Ex.A1 to  Ex.A3  are marked. 

6.     The points for the consideration is:  

Whether the complainant is entitled to a sum of Rs.10,00,000/- towards compensation for mental agony due to deficiency of service with cost as prayed for ?

 

7.  ON POINT :-

 

        The complainant pleaded and contented that he is a retired Grade-I Assistant Public Prosecutor.   He met with an accident in the year 1998 resulting his Right Hip was injured and an artificial Hip Joint had been implanted.  Thereafter on 19.9.2015 the complainant fell down in his bath room  resulting his Hip joint got dislocated.    After due consultation with the Doctors he was advised to replace the Hip Joint Implant.  Since the cost of the surgery is very high in Private Hospital, the complainant went to the opposite party Government Hospital and was admitted as in patient on 21.9.2015 in  Orthopaedic Ward, where the complainant was instructed to pay a sum of Rs.900/- per day towards rent but the complainant has not filed any document to prove such payment towards rent.  On the other hand the complainant filed several receipts showing maintenance charges.  Further the complainant contented that the 1^st opposite party personally attended and informed the complainant that the surgery should be performed within few days for that a fresh implant should be arranged.   Even though the cost of the implant is very high,  the complainant managed to arrange the same through one Mr.Loganath and ready to undergo surgery.  But the Doctors neglected and adjourned the date of surgery repeatedly resulting in a wound and implant which got dislocated intrudes into the complainant’s body and it had damaged his bone and pus was formed.     The complainant sustained severe pain also; on 4.11.2015 the surgery was arranged; a large quantity of pus with bad smell were cleaned  and the plate was fixed on the same day and the complainant was discharged only on 27.11.2015. 

8.     Further the contention of the complainant is that due to enormous delay in performing the surgery the complainant undergone surgery pain, mental agony, monetary loss etc.    The complainant is claiming a sum of Rs.10,00,000/- towards compensation for such deficiency of service. The learned counsel for the complainant cited the decision reported in

1996 AIR 550, 1995 SCC (6) 65

Supreme Court of India

Indian Medical Association

..Vs..

V.P. Shantha & Ors

Held that

The other part of exclusionary clause relates to services rendered “free of charge”.  The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called “doctors and hospitals”) broadly fall in three categories:

1. Where services are rendered free of charge to everybody availing the said services.
2. Where charges are required to be paid by everybody availing the services and
3. Where charges are required to be paid by persons availing services but certain categories of person who cannot afford to pay are rendered service free of charges.

    There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of “service” under Section 2(1) (o) of the Act.    The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals.   So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of section 2 (1) (o) of the Act.    The third category of doctors and hospitals do provide free services to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis.   The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients.   The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2 (1).

10) Services rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression “service” as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service.  Free service would also be “service” and the recipient a “consumer” under the Act.  

 

But on a careful perusal of the entire records the complainant has not  incurred even a single pie toward other medicines or for the services of doctors in view of the treatment.

9.     Further as per  decision reported in

2015 (4)CPR 390 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

Vikash Singh

..Vs..

B.M.W. India Pvt. Ltd.,

Consumer Protection Act 1986 – 11 (1), 17(1)(A) & 21(A) – Pecuniary Jurisdiction – Repair of Vehicle Rs.778900/- compensation Rs.17000000/- - Held complaint does not fall within pecuniary jurisdiction of National Commission.

Complainant senior advocate practicing Supreme Court claimed highly disproportion and unrealistic compensation of Rs.1,7000000 respect of value of deficient service Rs.778900, this amounts to abuse of practicing law.

 

Considering the facts and circumstances of the case this forum is of the considered view that  the complainant is not entitled for any relief as prayed for in the complaint and the points 1 & 2 are answered accordingly. 

             In the result this complaint is dismissed.   No cost.

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  9^th   day  of  August  2017. 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1-         -       - Copy of Discharge summary.

Ex.A2-         -       - Copy of Medical bills.

Ex.A3-  23.12.2015 - Copy of legal notice.

Opposite parties’ side document: -  

.. Nil..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.