Ld. Advocate(s)
For Complainant: Safikul Alam
For OP/OPs : Satyabrata Ghosh
Date of filing of the case :16.10.2020
Date of Disposal of the case : 17.07.2023
Final Order / Judgment dtd.17.07.2023
Complainant above named filed this complaint u/s 35 of the Consumer Protection Act, 2019 against the aforesaid opposite parties praying for compensation amounting to Rs.15,00,000/-, cost of the case and other reliefs.
She alleged that she was carrying pregnancy of 8 months and she was admitted at Sadar Hospital, Krishnagar under OP NO.5 on 20.08.2019 at about 1:00 p.m.- 1:30 p.m. OP No.5 transferred her to Saktinagar Hospital on the said date due to her poor stage of health condition. Her blood group was O+. OP No.5 knew the blood group of the petitioner but he wilfully transmitted A+ blood in the body of the complainant. For this reason health of the complainant was deteriorated on 22.08.2019.Due to her aforesaid ill stage of health condition, she delivered a child which was declared by OP No.5 as death. OP NO.4 is the staff of blood bank. He did not see the required blood group of the petitioner. OP No.5 also did not see the blood group papers of the complainant. Child of the petitioner has expired after delivery due to wrong transmission of blood which was given to her.
OP No.5 contest the case by filing a W/V.
He denied the entire allegations of the complainant. He stated that it is fact to say that complainant was carrying pregnancy for 8 months and she was admitted at Sadar Hopsital, Krishnagar under OP NO.5. On 20.08.2019 the OP No.5 transferred her to Sadar Hospital. He further contended that he did not receive any documents from the side of the complainant and he craves leave to file supplementary W/V after receiving the all documents. Complainant is not the consumer. He prays for dismissal of the case.
(3)
Trial
During trial complainant filed affidavit in chief. OP NO.5 filed questionnaires and complainant gave answer.
Documents
Complainant produced the following documents viz :
- Original ticket issued by District Hospital, Krishnagar, Nadia dated 20.08.2019......(One sheet)
- Original copy of Report on Examination of Blood issued by Arogya Diagnostic dated 06.05.2019..........(One sheet)
- Original copy of Dead body challan dated 22.08.2019.......(One sheet)
- Original copy of case sheet for Maternity Services-L3 Facility issued by National Health Mission for Admission date 20.08.2019.......(One set)
- Original copy of Body hand over certificate for a new born baby issued by Medical Officer District Hospital Sadar, Nadia dated 22.08.2019........(One sheet)
- Original copy of Discharge Certificate of complainant issued by Department of Health and Family Welfare, Govt. of West Bengal dated 04.09.2023.......(One sheet)
- Original copy of News Paper namely Ananda Bazar Patrika dated 05.10.2019........(One set)
- Original copy of News Paper namely Ananda Bazar Patrika dated 23.08.2019........(One set)
- Original copy of News Paper namely Ananda bazaar Patrika dated 31.08.2019..........(One set)
- Original copy of News Paper namely Ananda bazaar Patrika dated 29.08.2019..........(One set)
11)Xerox copy of document of NRS Medical College...........(Two sheets)
12)Xerox copy of Visitors Card of NRS Medical College dated 24.08.2019........(One sheet)
13)Xerox copy of document of Blood Bag 350 ml dtd. 24.09.2019.......(One sheet)
14)Original copy of Department of Haematology issued by Seba Dianostic & Polyclinic dated 16.06.2019...........(One sheet)
(4)
15)Xerox copy of document of FIR dated 22.08.2019.........(One sheet)
16)Xerox copy of letter issued by Iman Mallick dated 22.08.2019.....(One sheet)
17)Original copy of Postal Receipt...........(one sheet)
18)Original copy of Track Report...........(five sheets)
19)Original copy of Authorization letter issued by Dr. Swapan Kumar Das, CMOH, Nadia dated 21.06.2022...........(One sheet)
20)Original copy of Hazira dated 22.06.2022............(One sheet)
21)Original Envelop............(One No.)
Brief Notes of Argument
Complainant filed BNA. OP No.5 filed BNA.
Decision with Reasons
We have carefully gone through the petition of complaint filed by the complainant, W/V filed by the OP No.5, affidavit in chief filed by the complainant, documents filed by the complainant, BNA filed by the complainant and BNA filed by the OP No.5. We have carefully considered these documents.
On perusal of affidavit in chief filed by the complainant, we find that complainant corroborated the allegations which have mentioned in the petition of complaint.
On careful perusal of the said document, we find that it is the allegations of the complainant that he got admission at Sadar Hospital, Krishnagar under OP NO.5 on 20.08.2019 at about 1:00 p.m./1:30 p.m. Her blood group is O+ but OP No.5 gave A+ blood and for that reason her child was died.
Ld. Adv. for the complainant argued that though the complainant filed this case against Govt. Hospital but said case is maintainable.
He cited a decision of Hon’ble NCDRC reported in II(2012) CPJ 608 (NC). I find that Hon’ble NCDRC allowed compensation against Govt. Hospital.
He also cited another decision passed by Hon’ble SCDRC, Kerala reported in I(2019) CPJ 12 (CN) Ker on perusal of the said decision we find that case against Govt. Hospital in maintainable.
(5)
He also cited another decision of Hon’ble NCDRC reported in I(2010) CPJ 176 (NC). I find that Hon’ble NCDRC in the said decision granted compension.
In this context we have carefully gone through the decision of Hon’ble Supreme Court in Indian Medical Association v. V.P. Shanta reported in AIR 1996 SC 550 [1995 (3) CPJ 1 (SC) , 1995 (3) CTJ 969 (SC) (CP)].
We find that Hon’ble Justice Kuldip Singh, Hon’ble Justice S.C. Agrawal and Hon’ble Justice B.L. Hansaria passed the said judgement on 13.11.1995.
Hon’ble Supreme Court in this common judgment decided a writ petition and two appeals by special leave. A common question that has arisen is whether and , if so, in what circumstances a medical practitioner can be regarded as rendering service under section 2(1) (o) of Consumer Protection Act 1986. Connected with this question was the question whether the service rendered at a hospital/nursing home could be regarded as service.
Hon’ble Supreme Court after examining number of foreign Judgments, medical literature, and Indian decisions in civil suits, consumer complaints and writ petitions dealing with medical negligence held :-
- Service rendered free of charge by a Medical Practitioner attached to a Hospital/nursing home, all medical officers employed in a hospital/nursing home where such services are rendered free of charge to all, is not a “service” under the Act.
- Service rendered in a non-government hospital/nursing home where no charge is collected from all patients is not covered by the Act.
- But, service rendered at non-governmental hospital/nursing home where charges are collected from some and non collected from some others, falls under 2(1) (o) of the Act, irrespective of the fact that the service rendered free of charge to some poor persons. The patient obtaining free service is also a consumer under the Act.
- Service rendered at Government hospital/health centre/dispensary where no charge is levied on any patient is outside the purview of the Act.
- But, service rendered at a Government Hospital/health centre/dispensary where services are rendered on payment of charge to some and rendered free of charge to other persons, falls under Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to some poor persons. The patient obtaining free service in such case also is a consumer under the Act.
(6)
- Where as a part of consideration of service the employer bears the expenses of medical treatment of an employee and his family members, the service to such an employee and his dependents by a Medical Practitioner or a hospital/nursing home would not be free of charge and would constitute “service” under the Act.
- In most government hospitals there are separate paying wards where affluent patients seek admission and the general ward where poor patients are treated free of charge. Both the types of patients are entitled to protection under the Act”.
From the aforesaid discussion it is clear before us that the present case is not maintainable because complainant lodged this case against doctor of
District Sadar Hospital Krishnagar and Superintendent District Sadar Hospital Krishnagar that doctor of Govt. Hospital relating to her treatment of his wife without paying any amount as charge relating to treatment.
Having regard to the aforesaid discussion, it is clear before us taht in view of aforesaid decision of Hon’ble Supreme Court present case is not maintainable.
In the result, present case fails.
Hence,
It is
Ordered
that the present case be and the same is dismissed on contest against OP No.5 and dismissed ex-parte against the rests but without any order as to costs.
Dictated & corrected by me
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PRESIDENT
(Shri DAMAN PROSAD BISWAS,) ..................... ..........................................
PRESIDENT
(Shri DAMAN PROSAD BISWAS,)
I concur,
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MEMBER
(NIROD BARAN ROY CHOWDHURY)
