State Consumer Disputes Redressal Commission
Vinod Kumar vs State Of Punjab Through Its Secretary, ... on 3 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.744 of 2006
Date of institution : 29.5.2006
Date of decision : 03.8.2011
Vinod Kumar aged 16 years son of Pirthi Ram through his next friend his father
Pirthi Ram son of Jit Ram, resident of Bazidpur Katian Wali, Tehsil Fazilka,
District Ferozepur.
.......Appellant
Versus
1. State of Punjab through its Secretary, Health, Civil Secretariat, Chandigarh.
2. Senior Medical Officer, Civil Hospital, Abohar, District Ferozepur.
3. Dr. K.D. Singh, Orthopadecian, Civil Hospital, Abohar, District Ferozepur.
......Respondents
First Appeal against the order dated 6.1.2006 of the
District Consumer Disputes Redressal Forum,
Ferozepur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Present :-
For the appellant : Shri S.P.S. Tina, Advocate.
For respondent No.1 : None.
For respondents No.2&3 : Shri Mukesh Goyal, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This is an unfortunate story of a young boy who had met with an accident and his leg had to be amputated.
2. The question to be determined in this case is whether the appellant is a consumer qua the respondents or not?
Version of the appellant:
3. The appellant had met with an accident on 15.10.2004 when his leg overrun by a tractor. The appellant was taken to Civil Hospital, Abohar on the same day First Appeal No.744 of 2006. 2 at 8.00 P.M. He was attended by the emergency Medical Officer and thereafter he remained under the medical treatment of respondents No.2 and 3.
4. It was further pleaded that during his admission in the Civil Hospital, Abohar, the appellant was totally neglected by the respondents. Being a poor person, the appellant was unable to get medical treatment from the private hospital which was costly. Therefore he was on the mercy of respondents No.2 and 3. These respondents had not explained any complication to the appellant nor the appellant was referred to any specialized hospital. The doctors of Civil Hospital, Abohar always told the appellant and his attendants that the injury was a minor problem and it would be set right with the passage of time. Neither the Civil Hospital was properly equipped nor the para medical staff was competent nor the appellant was shifted to any other hospital for proper treatment. As a result the appellant was got discharged by his father from Civil Hospital, Abohar on 19.10.2004 and he was got admitted in PGI, Chandigarh on 20.10.2004.
5. It was further pleaded that the condition of the appellant was very critical. His leg was amputated in the PGI, Chandigarh on 21.10.2004. The disease of the appellant could have been diagnosed by respondent No.3 without any difficulty and because of the medical negligence committed by respondent No.3, the right leg of the appellant had to be amputated from thigh. Hence the complaint for compensation to the tune of Rs.4,00,000/-. The reimbursement of Rs.75,000/- and transportation expenses to the tune of Rs.25,000/- were prayed. Compensation, interest and costs were also prayed. Version of respondents No.1 and 2:
6. Respondents No.1 and 2 filed a joint written statement. It was admitted that the age of the appellant was 15 years and that the appellant was admitted in the Civil Hospital, Abohar on 15.10.2004. However the appellant was not a consumer qua the respondents. It was denied if any medical negligence was committed by respondent No.2 while medically treating the appellant. As per the bed head ticket of the appellant, he had suffered two bone fractures in the accident First Appeal No.744 of 2006. 3 and the complications arising out of this accident were duly recorded in the bed head ticket on 17.10.2004 by respondent No.3.
7. It was further pleaded that the Civil Hospital, Abohar was 100 bed hospital. It was duly equipped with necessary medical apparatus and qualified staff. It was denied if any medical negligence was committed by respondent No.2 while giving medical treatment to the appellant.
Version of Respondent No.3:
8. Respondent No.3 filed a separate reply. It was pleaded that the appellant has not come to the Forum with clean hands. It was pleaded that the Civil Hospital, Abohar was fully equipped with medical apparatus. Trained and experienced staff was available and they were attending to the appellant properly. Necessary orthopedic procedure, namely, back splint was applied to the appellant. The x-ray was recommended and the medicines were prescribed on the same night i.e. on 15.10.2004. The appellant was sent for x-ray on 16.10.2004 morning and in order to re-unite the fractured bones, the wound management of the patient was very necessary. The required medicines were prescribed. The circulation of the limb was clinically assessed and monitored.
9. It was further pleaded that on 17.10.2004 circulation was found to be doubtful and it was duly recorded in the bed head ticket. The situation was also explained to the relatives of the appellant. Vasodilators were prescribed. Respondent No.3 apprehended the critical condition and surgical requirement. Certain blood tests were recommended. The relatives of the appellant had shown the blood test report of the appellant to respondent No.3 on 18.10.2004. It was directed that the appellant be shifted to the surgical ward for his necessary preparation to open and operate the site of injury and the operation was scheduled for 19.10.2004.
10. The condition of the appellant was explained to his relatives. Respondent No.3 was of the opinion from the beginning that any movement of the appellant could cause risk to his life. However the condition of the wound was such that First Appeal No.744 of 2006. 4 fractured bones could not be joined immediately nor Plaster of Paris could be applied. Therefore the condition of the appellant was kept under necessary vigil and monitor. Respondent No.3 was planning to save the limb of the appellant in line with accepted clinical practice but relatives of the appellant in spite of objection from respondent No.3 got the appellant discharged from the hospital jeopardizing the interest of the appellant.
11. It was further pleaded that the appellant was got discharged by his relatives on 19.10.2004 but he was got admitted in the PGI, Chandigarh on 20.10.2004. Therefore the appellant remained without medical treatment between 19.10.2004 and 20.10.2004 which was extremely dangerous. The appellant had not paid any medical fee. Therefore he was not a consumer. The receipt produced by the appellant only reveals that it was for obtaining the certified copies of the record. Therefore the appellant was not a consumer qua respondent No.3. Dismissal of the complaint was prayed.
Proceeding before the District Forum:
12. Pirthi Ram father of the appellant filed his affidavit Ex.C-1. The appellant also produced on the file documents Annexure C-2 to Annexure C-9.
13. On the other hand, respondent No.3 filed his affidavit dated 27.12.2005. The respondents also produced the bed head ticket of the appellant. The Punjab Health Systems Corporation Act, 1996 has also been placed on the file.
14. Learned District Forum dismissed the complaint vide impugned judgment dated 6.1.2006.
15. Hence this appeal.
Discussion:
16. The submission of the learned counsel for the appellant was that the appeal be accepted, the impugned judgment dated 6.1.2006 be set aside and the appellant be awarded adequate amount of compensation.
17. The submission of the learned counsel for respondents No.2 & 3 was that there was no merit in the present appeal and the same be dismissed with costs. First Appeal No.744 of 2006. 5
18. Record has been perused. Submissions have been considered.
19. The appellant had pleaded in the complaint that he had deposited an amount of Rs.50/- in cash against receipt No.228852 and, therefore, he was the consumer qua the respondents. The said receipt has been proved as Annexure C-2. The appellant was admitted in the hospital on 15.10.2004. He had left the hospital on 19.10.2004 but receipt No.228852 (Annexure C-2) relied upon by the appellant is dated 5.11.2004. The version of the appellant is proved to be totally false that he had deposited this amount of Rs.50/- for his medical treatment in the respondent hospital. If he had deposited this amount of Rs.50/- as medical fee, it would have been dated 15.10.2004 or any date prior to 19.10.2004. Therefore this amount of Rs.50/- was not for hiring the services of the respondents.
20. The appellant has produced other receipt dated 15.10.2004 Annexure C-4 for Rs.85/- and other receipt dated 18.10.2004 for Rs.25/- Annexure C-5. These were the procedural charges and not the medical fee. Such a matter had come up for consideration before the Hon'ble Supreme Court in the judgment reported as, "Indian Medical Association v. V.P. Shantha and others" 1996(1) Consumer Law Today 1. It was held by the Hon'ble Supreme Court in para 43 as under:-
"43. 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 hospitals") broadly fall in three categories:-
(i) where services are rendered free of charge to everybody availing of the said services.
(ii) where charges are required to be paid by everybody availing of the services and
(iii) where charges are required to be paid by persons availing of services but certain categories of First Appeal No.744 of 2006. 6 persons 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)(o) 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 to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly falls within the ambit of Section 2(1)(o) of the Act."
21. So far as the Government hospitals are concerned these render medical service totally free of cost except charging nominal money for registration purposes or for procedural expenses, namely, for x-ray, ECG etc. In this case also the appellants had deposited Rs.85/- on 15.10.2004 and Rs.25/- on 18.10.2004. These were the procedural expenses. Rs.50/- were paid by the appellant on 5.11.2004 for a different purpose i.e. for a copy of the hospital record. The payment of Rs.85/- and Rs.25/- were token amounts which as per the law laid First Appeal No.744 of 2006. 7 down by the Hon'ble Supreme Court in V.P. Shantha's case (supra) were not medical fee. Therefore the appellant had neither hired the services of the respondents within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and, therefore, was not a consumer nor the respondents had rendered any service to the appellant within the meaning of Section 2(1)(o) of the Act as it was free of cost. Therefore the appellant was not a consumer qua the respondents.
22. Reference can also be made to the judgment of the Hon'ble Supreme Court reported as "State of Punjab vs. Shiv Ram & others" (2005) 7 SCC 1 and the judgment of Hon'ble National Commission reported as "Chief Executive Officer, Zila Parishad, Jalagaon v. Shaguna Bai Naval Singh Chauhan" AIR 2009 NOC-1211 (NC).
23. This Commission had also taken the similar view in the judgment dated 25.11.2009 passed in First Appeal No.487 of 2004 "Satnam Kaur vs. Punjab Health System Corporation and others" and in the judgment dated 31.8.2010 passed in First Appeal No.390 of 2005 (Dr. Jajbir Singh Sandhu v. Dharam Singh and others).
24. It was also held by this Commission in Dr. Jajbir Singh Sandhu's case (supra) that the complainant respondent in that case was not a consumer in similar circumstances. It was also observed in para 38 and 39 of the judgment as under:-
"38. Moreover the appellant being under the control of Punjab Health Systems Corporation i.e. respondents No.2 and 3 is protected by the Punjab Health Systems Corporation Act, 1996 when the appellant is discharging his duties under this Act. Section 15 of this Act reads as under:-
"15. Protection of action done in good faith. (1) No suit or prosecution shall be entertained in any court against the Corporation or against any First Appeal No.744 of 2006. 8 officer or servant of the Corporation or person under the order or direction of the Corporation for anything which is in good faith done or intended to be done under this Act or any regulation made thereunder.
(2) No suit, prosecution or other legal proceedings shall lie against any officer or servant of the Corporation for any act done or purporting to be done under this Act or any regulation made thereunder without the previous sanction of the Corporation.
39. Therefore, no suit, prosecution and other legal proceedings can be initiated against the appellant without the previous sanction of the Punjab Health Systems Corporation i.e. respondents No.2 and 3. In the present case the patient has not obtained the prior sanction of the Corporation i.e. respondents No.2 and 3. Therefore the consumer complaint filed by the patient against the appellant and against respondents No.2 and 3 is not maintainable and is vitiated by the provisions of Punjab Health Systems Corporation Act, 1996."
25. This preposition of law is applicable to the facts of this case also.
26. Keeping in view the discussion held above, it is held that the appellant was not a consumer qua the respondents.
27. Therefore this appeal is dismissed leaving the appellant to resort to any other remedy available to him under the law.
28. The time spent by the appellant from the date of filing of complaint in the learned District Forum on 18.11.2005 till today would not be counted towards First Appeal No.744 of 2006. 9 limitation in view of the judgment of the Hon'ble Supreme Court reported as "Trai Foods Ltd. v. National Insurance Co. and others" (2004) 13 SCC 656.
29. The arguments in this case were heard on 21.7.2011 and the order was reserved. Now, the order be communicated to the parties.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL) PRESIDENT (MRS. AMARPREET SHARMA) MEMBER August 03 , 2011 Bansal