Delhi

StateCommission

A/12/161

KRISHAN KR. - Complainant(s)

Versus

UNION OF INDIA & ORS. - Opp.Party(s)

15 Oct 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:15.10.2019

 

                                                                   Date of decision:21.10.2019

 

First Appeal No.161/2012

 

 

IN THE MATTER OF

 

1. Sub. Krishan Kumar

Husband of deceased.

Late Smt. Savitri Devi

 

2. Sher Singh (Son)
3. Suman (Daughter)
4. Anita Yadav (Daughter)
5. Amit Kumari (Son)
6. Smt. Bhati Devi (Mother)

 

Caste Ahir All residents of

Village Malra Sarai, Tehsil and

District Mahendergarh

(Haryana) 123029             .…Appellant

 

VERSUS

 

1. Union of India, Ministry of Defence
2. Commandant Army,

Base Hospital Delhi Cantt-10

3. Commandant Army Hospital

(R&R) Delhi Cantt-10                                                               .…Respondent

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

 

 1.   Whether reporters of local newspaper be allowed to see the judgment?                Yes     

 2.   To be referred to the reporter or not?                                                                     Yes

 

                           Present:         Appellant in person

                                                   Sh. Anmol, Counsel for the respondent

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             Aggrieved by the orders dated 09.01.2012 passed by the Consumer Dispute Redressal Forum-VII, Delhi in the complaint number 595/2008 in the matter of Sub- Krishan Kumar and ors versus Union of India, Ministry of Defence and ors, granting no relief to the complainant/appellant as in the facts and circumstances of the case they were not found to be a consumer in which event they are not entitled to raise a consumer dispute under the provisions of Consumer Protection Act 1986, the complainant, Sub-Krishan Kumar and ors have preferred this appeal before this Commission, for short appellants, under Section 15 of the Act against among others, Base Hospital, Delhi Cantt, Delhi hereinafter referred to as respondents, praying for setting aside the order and for grant of the relief prayed for in the complaint.
2.             The District Forum have dismissed the complaint on the ground that the complainant having paid no fee is not a consumer. The forum has not touched the complaint on merit. The appellants on the other hand relying on the judgment of the Hon’ble Supreme Court of India in the matter of Medical Association versus V.P. Santha and ors as reported in AIR 1996 SC 550 has argued that they are consumers within the meaning of the Consumer Protection Act 1986 and thus entitled to raise a consumer dispute as also for the relief as claimed in the complaint, the respondents having been deficient in rendering service to them.
3.             Shorn of superfluities, short question for adjudication in this appeal is whether the appellants/complainants are consumers of the respondents within the meaning of the provisions of the Act as then alone they would be entitled to and eligible for the relief from the consumer forum.
4.             In the first instance I may advert to provisions contained under Section 2(1)(o) of the Act which reads as under:-

 

“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, board 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;

 

Secondly deficiency of service has been defined under the provisions of Section 2(1)(g) of the Act (Supra)

 

“Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

 

5.             The Hon’ble NCDRC in the matter of Commandant, Base Hospital, Delhi Cantt and ors versus Wing Commander K.K. Chaudhary (Retd.) in RP/3247/2008 decided on 02.02.2009 is pleased to hold as under:-

 

In the light of the Apex Court in Laxman Thamappa Kotgiri vs. G.M. Central Railways and others (Supra) and the judgment of the Apex Court in Indian Medical Association vs. V.P. Santha (1995) 6 SCC 651, there is no merit in the objection taken by the Petitioners/OPs since it is crystal clear that where medical service was rendered as part of terms and condition of service, it would not amount to free service and would constitute service for the purpose of the Act. Further, it was held that “All persons who avail of the services by doctors and hospitals are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail of the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing service free of charges to patient who are not in a position to bear the charges are met out of the income earned who are doctors and hospital from services rendered to paying patients. The government hospitals may not commercial in that sense but on the overall consideration of the objectives the scheme of the Act, it would not be possible to treat the government hospital differently. We are of the view that in such a situation, the persons belonging to poor class who are provided service 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 hospital 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. The relevant conclusions are as under:

 

“Service 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 of such services would fall within the ambit of the expression service as defined in Section 2(1)(d) of the Act. Irrespective of the fact that the service is rendered free of charge of persons who do not pay for such service. Free service would also be service and the recipient a consumer under the Act.”

 

6.             The ld. Counsel for the respondents relied on the judgment of this Commission passed in the matter of Base Hospital, Delhi Cantt. versus Smt. Alka Srivastava and another FA/476/2009 on 29.04.2010 holding that since the OP hospitals are run by the Armed Forces and is an Army, the provisions of the Consumer Protection Act 1986 are not applicable. However relying on the judgments of the Hon’ble NCDRC and Hon’ble Supreme Court of India referred to in para 5 of the judgment the said decision of this Commission (Supra) may not have any efficacy.
7.             Having regard to the discussion done and the law laid down by the Hon’ble Apex Court I am of the Considered view that the appellant/complainant is a consumer of the respondents/OPs. Accordingly the orders passed by the District Forum is set aside and the matter is remanded to the District Forum for hearing afresh treating the complainants as consumers.
8.             Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information and records.
9.             Since the matter pertains to the year 2008, the District Forum is requested to dispose of the complaint as expeditiously as possible preferably within six months from the date of this order.
10.             File be consigned to records.

 

 

(Anil Srivastava)​

Member