By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant claiming compensation and other reliefs.<br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was admitted in Govt. Taluk Head Quarters Hospital, Karunagappally in October 1997 for delivery and Post Partem Sterilization. Shed gave birth to a child on 24.10.1997. On 27.10.1997 she underwent Post Partem Sterilization the 2nd opp.party had attended the delivery and conducted the Post Partem Sterilization on the complainant. Even though Post Partem Sterilization was performed in October 1997 by the 2nd opp.party, the complainant became pregnant and she delivered a child on 6.6.2005 at the above Hospital. The complainant had to under go again another Post Partem Sterilization on 7.6.2005. The doctor who attended the complainant for the 2nd PPS has disclosed the fact that the Post Partem Sterilization on the complainant in October 1997 was conducted negligently by the 2nd opp.party without taking due care. The complainant got pregnant again due to the negligence on the part of the 2nd opp.party. The complainant suffered hardship, misery, huge monitory loss and mental agony. The child born as an unwanted child. The complainant is a house wife and she is only a matriculate. Her husband is a poor fisherman and his income is not sufficient for the demands of the family. Unexpected expenses and misery were caused to the complainant who became unhealthy. The 2nd opp.party is liable to compensate the complainant for the same. Hence this complaint.<br /> <br /> The opp.party filed a version contending, inter alia, that the complaint is not maintainable either in law or on facts . The complaint is frivolous, vexatious and devoid of truth or bonafides. There is no negligence or deficiency in service as alleged. The complainant is not a consumer within the meaning of Section2 [1] [d] of the Consumer Protection Act as she has availed the service of the 2nd opp.party at Taluk Head Quarters Hospital, Karunagappally, absolutely free of charge. Hence the complint is liable to be dismissed in limine.<br /> <br /> The 2nd opp.party has requested to hear the question of maintainability as a preliminary issue and accordingly the following preliminary issue was raised.<br /> <br /> Preliminary issue. Whether or not the complaint is maintainable. Ext.P1 to P5 were marked on the side of the complainant.<br /> <br /> ISSUE<br /> <br /> <br /> According to the complainant she was admitted in the Taluk Head Quarters Hospital, Karunagappally for delivery and Post Partem Sterilization in October 1997 and she gave birth to a child on 24.10.1997 and thereafter she underwent Post Partem Sterilization on 27.10.1997. The delivery as well as the Post Partem Surgery were attended by the 2nd opp.party. But due to the negligence of the 2nd opp.party in conducting Post Partem Sterilization she got pregnant again and on 6.6.2005 she delivered a child at the very same hospital. The definite contention the complainant is that she got pregnant again due to the negligence of the opp.party who performed the Post Partem Sterilization and therefore she is entitled to get compensation.<br /> <br /> The definite case of the opp.party is that the complainant is not a consumer within the meaning of Section 2 [1] [d] of the Consumer Protection Act. It is argued that the complainant has availed the services of the 2nd opp.party at the Govt. Taluk Head Quarters Hospital, Karunagappally, absolutely free of charge and that a person who avail service in a Government Hospital free of charge is not a Consumer within the meaning of Section 2 [1] [o] of the Consumer Protection Act and therefore, the complaint is not maintainable.<br /> <br /> As a matter of fact the complainant has not produced any material worth believable, to show that she had made any payments for the services availed from the Taluk Head Quarters Hospital Karunagappally or to the dorctor, the 2nd opp.party. Ext.P1 is a bill evidencing purchase of certain medicine from the Maveli Medical Store, Taluk Hospital, Karunagappally. But Ext.P1 does not show the name of the patient for whom the medicines were purchased or the name of the Doctor who prescribed the medicines. Apart from that, the Maveli Medical Store is a separate institution under the Civil Supplies Corporation. It is a separate entity having no connection with Health Service Department under which opp.party 2 was working. So even assuming that Ext.P1 is in respect of the complainant it cannot be relied on to come to a conclusion that the services provided to the complainant was not free of charge. In Ext.P2 to P5 documents produced by the complainant also there is absolutely nothing to show that the complainant had made any payments for the services availed.<br /> <br /> It is well settled that the services rendered free of charge by medical practioner attached to a Govt. Hospital/ Nursing home or a medical officer employee in a Hospital/Nursing home where such services are rendered free of charge to everybody would not be a service as defined in section 2 [1] [o] of the Consumer Protection Act. There is no dispute that the opp.party 2 is working in a Government Hospital wherein service are rendered free of charge to everybody. As pointed out earlier the complainant failed to prove by cogent evidence that she has made any payments for the services availed from Opp.party 2. In the decision reported in 2007 [1] CPR 512 [NC} it was held that medical negligence against a Doctor of Government Hospital is not actionable under the Consumer Protection Act as it was free of charge and the above decision is squarely applicable in this case. For all that has been discussed above we find that the complaint as brought is not maintainable before this Forum. Issue found accordingly. <br /> <br /> In the result we find that the complaint is not maintainable and hence the complaint is dismissed. In the circumstances we make no order as to costs.<br /> <br /> <br /> Dated this the 30th day of November, 2007<br /> <br /> <br /> K. VIJAYAKUMARN : Sd/-<br /> ADV. RAVI SUSHA :Sd/-<br /> <br /> <br /> Forwarded/by Order,<br /> <br /> <br /> <br /> SENIOR SUPERINTENDENT<br /> <br /> <br /> <br /> <br /> In d e x<br /> <br /> List of documents for the complainant<br /> P1. – MEDICAL BILL<br /> P2. – CERTIFICATE<br /> P3. – MEDICAL CERTIFICATE<br /> P4. – CERTIFICATE<br /> P5. – LEGAL NOTICE<br />