IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 25th day of January, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
IA No. 405/2022
in
C C No. 84/2022
Petitioner/ : Dr. Tomichan M.C.
First opposite party Kochumattom,
Arookkara East P.O.
Kottayam.
(Adv. M.C. Suresh)
Vs.
Counter petitioners : (1) Lalitha Mohanan,
W/o. Mohanan,
Residing at Mangalathu House,
Murikkarsherry P.O.
Idukki
(Adv. Blessen G. Mathews)
(2) Medical College Hospital,
Gandhi Nagar, Kottayam
Rep. by its Superintendent
(3) The State of Kerala,
Rep. by District Collector,
Kottayam.
O R D E R
Smt. Bindhu R. Member
Complaint is filed under Section 35 of Consumer Protection Act, 2019.
The complaint is filed for compensation for the mental agony and sufferings occurred to the complainant due to the deficiency in service of the opposite parties.
Before the evidence stage, the 1st opposite party / petitioner filed IA 405/2022 challenging the maintainability of the complaint on the ground that the entire treatment given to the complainant was free of cost. The first counter petitioner filed this IA with the same contention of the version regarding the maintainability of the complaint.
The counter petitioner / complainant filed objection to the IA stating that the IA is filed only to prolong the proceedings and is devoid of any merits. The averments in the complaint and supporting documents filed along with it clearly establish that the complainant had made various payments during the course of her treatment. Moreover the decisions in this regard does not barre the right of the complainant to approach the Consumer Commission against the opposite parties as the opposite parties accepted payments from the complainant for her treatment. The 2nd and 3rd opposite parties, who have their right to file a version cannot be excluded from the liability of their negligence merely on the ground of non maintainability of the compliant. The opposite parties are jointly and severally liable to compensate the complainant. The petition is filed to cover up the grossly negligent and illegal act of the 1st counter petitioner. Hence the petition is liable to be dismissed.
After hearing the rival contentions of the petitioner and counter petitioner/ complainant on the maintainability issue we have perused the pleadings, documents and verdict of the apex court in detail.
The complainant approached the 1st opposite party, who was the professor and head of the department of Orthopedics of Medical College Hospital, Kottayam with a difficulty in walking due to pain in the left leg on 07-11-2021. Various tests were conducted and after examining the results, the petitioner / 1st opposite party had advised her to undergo a surgery in her left leg. The issue diagnosed by the 1st opposite party / petitioner was reduction in the density of a bone in the hip portion of her left leg and the same could be set right by replacing the left hip born portion with an uncemented artificial structure. Thus the surgery was fixed to 25-01-2022. Accordingly the complainant was got admitted on 21-01-2022 as per the direction of the 1st opposite party/petitioner. On 25-01-2022 after the complainant was transferred to the operation theatre, the staff of the 2nd counter petitioner came out of the theatre and made the relatives of the complainant to sign certain papers stating that they were required for surgery. After the surgery, when the relatives of the complainant noticed that both her legs were opened and operated. On enquiry, the 1st opposite party /petitioner informed that during the procedure he had cut opened the right leg first to see if there was any issue and after he had found that there was no damage on the right leg, he went on to operate the left leg of the complainant. He assured the complainant’s relatives that he would take care of any complications arising there from. The relatives of the complainant were surprised to hear this as the complainant had no complaint or difficulty with her right leg. After the surgery, the complainant has started developing pain on her right leg when the 1st opposite party/ petitioner pacified her by saying that the pain would subside within a few days. Though the complainant was having difficulty and pain even in slight movement she was discharged on 29-01-2022. The complainant was compelled to be discharged the procedures alleged to have been performed by the opposite parties were without the consent of the complainant or her relatives. At the time of removal of stitches also, the complainant was not properly advised for a post operative life. As the pain was not subsiding the complainant visited the 1st opposite party / petitioner on 04-04-2022. But the 1st opposite party / petitioner behaved indifferently and did not suggest anything to redress pain and difficulties of the complainant with her right leg. The complainant insisted for taking an X-ray and after examining the X-ray reports also, the 1st counter petitioner said that nothing serious was there in X-ray and prescribed paracetamol tablets. The 1st counter petitioner told her that if the pain continued, they would again operate the right leg. Even after three months, the complainant was unable to walk. The conducting of surgery on right hip of the complainant without her consent is a gross deficiency in service on the part of the opposite parties. The 1st counter petitioner had not exercised any care that is expected from him. The act of the 1st counter petitioner of wrongly operating the right leg, which had no issue is an unfair deceptive practice due to which the complainant has to undergo irreparable injury and hardships affecting the livelihood of complainant’s family. Hence the complaint is filed for compensation of Rs.2 lakhs for mental agony and hardship and litigation cost.
Upon notice counter petitioner 1 appeared and filed version. Though counter petitioner 2 and 3 were served with notice, they did not appear or file version. Hence counter petitioner 2 and 3 were set exparte.
The 1st opposite party / petitioner resisted the allegations in the complaint by contending that the complaint is frivolous and vexatious without any bonafides. The complaint is not maintainable before the Consumer Commission on the ground that the service of the 1st opposite party / petitioner as an employee of the Govt. Medical college hospital does not come within the purview of Consumer Protection Act, 2019. The 1st opposite party/petitioner has not received any consideration for the treatment of the complainant at medical college hospital. The service rendered as part of the treatment was entirely free. Hence excluded as per Section 2 (42) of the Consumer Protection Act, 2019. So the maintainability of the complaint has to be tried as a preliminary issue.
On 08-11-2021, the complainant approached the 1st opposite party / petitioner for outpatient consultation with pain in the right hip. On the basis of clinical examination and X-ray evaluation, she was diagnosed to have osteoarthritis both hip joints and advised total hip replacement surgery. X-ray examination findings showed more osteoarthritic changes in left hip compared to right side but according to the complainant she was having pain on the right side and she wanted to have surgery to be done first and foremost on the right side and requested for the same. Though the first opposite party / petitioner had explained about X-ray findings suggestive of more osteoarthritic changes on the left hip and suggested for surgery on the left hip, the complainant having complaint of pain on the right hip insisted for surgery firstly on the right side and the left side surgery on a lager occasion.
Surgery was fixed on 25-01-2022 after explaining the pros and cones of the opposed uncemented total hip replacement surgery initially planned on the right hip as per the request of the complainant under all care and aseptic sterile precautions, the 1st opposite party/ petitioner proceeded with arthrotomy on right hip. Upon opening, it was found that right hip joint was having only mildly arthritic and hence the procedure was stopped and the operative findings were discussed with bystanders. In view of X-ray evidence of more osteoarthritic changes seen on the left hip, it would be advisable to do THR on the left side despite having symptoms on the right side and the bystanders agreed to proceed with left hip replacement and voluntarily signed written informed consent on 25-01-2022. The complainant was also informed about all this findings on the table and she has also agreed with to proceed with left side THR surgery. The surgery was uneventful. After surgery also she had no complaint about THR done in left hip, eventhough she had persistence of symptom on the right side. She was offered surgery later on if symptoms were persisting.
On 28-01-2022, general condition was satisfactory and accordingly she was discharged. Thereafter, the complainant did not turn up to consult with the 1st opposite party / petitioner. The pertinent fact is that the complainant was symptomatic with pain right hip but as per surgical finding and radiological evidence THR of left side was very much indicated and hence surgery was done on the left hip. Hence there is no deficiency of service or negligence on the part of the 1st opposite party / petitioner.
The complainant was treated by the 1st opposite party / petitioner in the second counter petitioner hospital were all the treatments are rendered free of cost. The govt. medical colleges normally do not charge for the treatments generally. Here in the case on hand, the complainant has produced several bills which she claims to have been paid to the 2nd counter petitioner. But on a thorough examination of documents, we find that the payments made by the complainant for X-ray and other lab tests had been paid to Hospital Development Society, which is an independent society constituted for giving better service to the patients and for the overall maintenance of the hospital premises. The said society functions upon the payment collected from the patients for their services. There is minimum charges for the lab services, room services etc. It is seen that the payment made by the complainant was not to the opposite parties but to the Hospital Development Society, who has no role in the treatment process. So it is evident that the services of the opposite parties availed by the complainant were fully free of cost.
Section 2(7) (ii) of Consumer Protection Act 2019 defines ‘consumer’ means any person who hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose”.
The intention of the Act itself is very clear that if a person be called as a consumer as per the provisions of the Act a consideration is a necessary element. Services availed without paying consideration will not come under the purview of the Consumer Protection Act, 2019.
Section 2(42) of the Consumer Protection Act, 2019 and Section 2 (1) (o) of the Consumer Protection Act, 1986 , ‘service’ means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
So rendering of any service free of charge cannot be included in the definition of service.
In V.P. Santha and Others Vs. Indian Medical Association, the Hon’ble Supreme Court 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 hospital”) broadly fall in three categories:
- Where services are rendered free of charge to everybody availing of the said services.
- Where charges are required to be paid by everybody availing of the said services.
- Where charges are required to be paid by the persons availing of services but certain categories of person who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of the first two categories.Doctors and hospitals who render service without any charge whatsoever to every person availing of 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) of the Act.The third category of doctors and hospitals do provide free service 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 by such doctors and hospital to paying patients undoubtedly falls within the ambit of Section 2(1) (o) of the Act”
In 2022 Livelaw (SC) 781 in Civil Appeal No.6208/22 the Hon’ble Apex Court has upheld the position as Consumer Protection Act, 1986; Section 2(1) (o) – Doctors and hospital who render service without any charge whatsoever to every person availing of 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. Refrred to Indian Mecial Association Vs. VP. santha &Ors. (1995) 6 SCC 651.
In Nivedida Singh Vs. Asha Bharti (DR) and Others I (2022) CPJ 69 (SC) Consumer Protection Act, 1986 – Section 2(1) (d) (ii), 2() (o), 23 – Consumer – Medical officer who is employed in hospital renders service on behalf of hospital administration – Service as rendered by Hospital if does not fall within ambit of 2(1) (o) of Act being free of charge, same service cannot be treated as service under Section 2(1) (o) for reasons that it has been rendered by medical officer in hospital who receives salary for employment in hospital – services rendered by employee – medical officer to such person would continue to be service rendered free of charge and would be outside purview of Section 2(1) (o) of Act.
5.Learned Counsel for the appellant relies upon a judgement of this Court reported in III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (SLT SOFT) 561=(1995) 6 SCC 651 titled “Indian Medical Association v. V.P. Santha & Ors” to contented that payment for service availed is not a necessary ingredient to file a coplaint under the Act. However, we find that the said argument is not tenable in view of the following findgings recorded
“45. In respect of the hospitals /nursing homes (government and non-government) falling in category (i) ie. where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1) (d) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1) (o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) (o), being free of charge, the same service cannot be treated as service under Section 2(1) (o) 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. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a “consumer” under Section 2(1) (d) in respect of the service rendered to him. The service rendered by the employee medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1) (o)”.
Hence in the light of above discussion and settled law, we find that in the absence of any consideration paid by the complainant to the opposite parties, the present complaint cannot be adjudicated by this Commission. Hence IA 405/22 is allowed. The complaint is dismissed.
The complainant is at liberty to approach appropriate Court for the redressal of her grievance.
Pronounced in the Open Commission on this the 25th day of January, 2023
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
By Order
Sd/-
Assistant Registrar
