HON’BLE MR.JUSTICE ISHAN CHANDRA DAS,PRESIDENT

       This appeal has been directed against the order no. 2 dated 21-12-2017 passed by Ld. DCDRF, Kolkata Unit-I in CC/350/2017 where Ld. Forum concerned while at the stage of admission of the complaint case dismissed the same with a finding that the complaint case was not maintainable as no charge/consideration was received by the hospital and free service was rendered to the complainant by the hospital. The complainant filed the instant complaint case before Ld. DCDRF alleging medical negligence against the OPs and claimed compensation of a sum of Rs. 8,00,000/- (Rupees eight lakh) and other consequential reliefs but Ld. Trial Forum while at the stage of admission observed that the complaint case was not maintainable. Ld. Counsel appearing for the appellant in course of hearing drew our attention to the factual aspects of the matter and tried to impress that the medical services rendered by a Government Hospital or dispensaries are within the ambit of services under section 2 (1) (o) of the Consumer Protection Act and the complainant or the victims who got the service of such hospital acquires the status of a consumer within the meaning of section 2 (1) (d) of the CP Act. In support of his contention he relied on a decision of Hon’ble Supreme Court in Kishorlal Vs. Chairman, Employees’ State Insurance Corporation, reported in (2007) 4 SCC 579, where the Hon’ble Apex Court placing reliance on its earlier judgment in Indian Medical Association Vs. V. P. Shantha and others, reported in (1995) 6 SCC 651, held that the provision of the Consumer Protection Act is squarely applicable to medical services provided by the Government Hospital and to bring them within the ambit of the Consumer Protection Act. In this context we may quote the decision of the Hon’ble Apex Court in Indian Medical Association Vs. V. P. Shantha and others (supra) that “the government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act, it would not be possible to treat the government hospitals differently. We are of the view that in such a situation, the persons belonging to “poor class” who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the “paying class”. We are, therefore, of the opinion that service rendered by the doctors and hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression ‘service’ as defined in section 2 (1) (o) of the Act. We are further of the view that persons who are rendered free service are the ‘beneficiaries’ and as such come within the definition of ‘consumer’ under section 2 (1) (d) of the Act”.

       Ld. Counsel for the respondent while opposing the prayer of the appellant  with all fairness admitted the established principle of law. It is  submitted with reference to a decision of the Hon’ble Apex Court in Paschimbanga Khet Mazdoor Samity Vs. State of West Bengal and others, reported in (1996) SCC (4) 37, and pointed out that “government hospitals should not be absolved from liability since there was the constitutional obligation to provide free medical aid to a poor and the state cannot avoid its constitutional obligation in that regard on account of financial constraints”. Hence taking into consideration the facts and circumstances of the case we are of firm opinion that Ld. DCDRF was not justified in holding that the complaint case was not maintainable against the government aid hospitals only on the fact that a sum of Rs. 2/- was paid by the patient for his treatment. Accordingly, we allow the appeal, set aside the order impugned and direct Ld. DCDRF to do the needful in the instant case according to law. Parties are directed to appear before Ld. DCDRF on 30.04.2019.