State Consumer Disputes Redressal Commission
Sher Singh vs Senior Dmo Northern Railway on 3 April, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.797 of 2016
Date of Institution: 18.10.2016
Order Reserved on : 28.03.2017
Date of Decision: 03.04.2017
Sher Singh aged 81 S/o Late Sh. Sarwan Singh R/o Akal House
3558, St. No.7, New Janta Nagar, Gill Road, Ludhiana.
Appellant/complainant
Versus
1. Senior Medical Officer N. Rly. Ludhiana.
2. Chief Medical Director (CMD) N. Rly. New Delhi and other.
Respondents/opposite parties
First Appeal against order dated
14.09.2016 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellant : Sh. Sher Singh, in person
For the respondents : Sh. Sanjiv Ghai, Advocate
............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 14.09.2016 of District Consumer Disputes Redressal Forum Ludhiana (in short the 'District Forum), dismissing his complaint. The appellant of this appeal is complainant in the original complaint First Appeal No. 797 of 2016 2 before the District Forum Ludhiana and respondents of this appeal are OPs therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant brought the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he retired under rank CRS LUD on 30.09.1993 at Ludhiana. He hired the services of OPs under liberalized health scheme, known as RELHS, for himself and his wife with regard to reimbursement of medical treatment claim. The Ferozepur office of OP issued card dated 19.04.2005 with CBS/FZR on receiving Rs.7816/-, vide MR No.964135 dated 19.04.2005 for providing its services under the RELHS, which was later on registered with Ludhiana office, as per endorsement dated 05.02.2013 bearing serial no.1072/207, which was renewed from time to time. The OPs had not allowed the reimbursement of medical expenses, incurred by the complainant on his treatment under the above scheme. The complainant has been suffering from hernia since 1990 on left side of organic genital i.e. below the stomach, during night, air used to slip away and during walking in daytime, air was lifted out without giving any extra pain. Before the operation on right side, hernia also came up and started paining, thus, both side of organic genital were involved. On 28.02.2014, the complainant suffered severe pain, which was unbearable. There was no arrangement H/unit in Ludhiana nor any recognized hospital for such an emergency operation was there, hence the complainant approached the nearest best hospital Khosla Hospital at Ludhiana First Appeal No. 797 of 2016 3 for his above health problem and Sr. DMO Dr. Chetna Kapoor was duly informed about the same by him. The complainant submitted the claim for expenses of Rs.29,000/- for medical reimbursement, at above said hospital for the period 28.02.2014 to 02.03.2014 against b/l inguinal hernia. OP no.1 rejected his claim, vide repudiation letter dated 03.11.2014 on the ground that "patient was diagnosed as a case of bilateral inguinal hernia and underwent bilateral hermioplasty with mesh under spinal anaesthesia. He was symptomatic of this disorder for two months prior to his admission, which was enough time to report to his authorized medical officer at HU/LDH to arrange for his treatment. His vitals were also stable at the time of admission. As such, inguinal hernia is not an emergency condition and hernioplasty is not an emergency procedure. Moreover, the surgery is being routinely done at DH/FZR. Since, emergency could not be justified in this case for complainant, as per Railway Board letter no.205/H/6-4/Policy-II dated 31.01.2007, hence his medical claim has been rejected by the competent authority." OP no.5, vide letter dated 23.03.2015 also rejected his appeal on the same ground, as taken by OP no.1. The act and conduct of OPs caused mental tension and harassment to him, as he is senior citizen 80 years of age. He served Railway department for more than 39 years, but OPs did not provide any relief to him in a wrong manner. The complainant further pleaded that there was no treatment for the surgery of bilateral inguinal hernia available at Railway hospital Ludhiana, due to this reason, as well as due to unbearable pain, he rushed to nearby Khosla hospital Ludhiana to get rid of the pain. The OPs First Appeal No. 797 of 2016 4 ignored this fact and resultantly repudiated his claim. The complainant, thus, prayed that OPs be directed to pay reimbursement claim of Rs.29,000/- alongwith interest @18% per annum till realization from the date of lodging the claim, besides Rs.30,000/- as compensation for causing him mental harassment, Rs.5500/- as cost of litigation and Rs.2500/- as miscellaneous Expenses.
3. Upon notice, OP nos.1 to 5 filed their joint written reply by raising preliminary objections that complaint is not maintainable in the present form. Any deficiency in service or unfair trade on the part of answering OPs was denied by the OPs. It was pleaded that complainant suffered from hernia since 1990 i.e. for the last 25 years. There was no question of any type of emergency whatsoever in the case of complainant. As per existing guidelines, reimbursement is awardable only in cases of emergencies. The complainant had ample time to report his medical officer health unit Ludhiana, so that his case could be referred to Divisional Hospital, Ferozepur, where such type of treatment of surgery is routinely performed. As per discharge slip, patient has been suffering from above said problem for the last 1-2 months, which was enough time for him to report authorized medical officer for arrangement of treatment at authorized hospital. The complainant has not come to the Forum with clean hands and is guilty of suppression of material facts. The complainant is not consumer, since he has not hired the services of OPs for consideration. The complaint is alleged to be without cause of action, being an abuse of process of law. On merits, First Appeal No. 797 of 2016 5 OPs contested the complaint of the complainant on the ground that complainant himself admitted this fact that he was suffering from hernia since 1990, which was a period of 25 years. This fact was denied that there was no treatment of surgery available at Railway Hospital Ludhiana. This fact was also denied by OPs that complainant rushed to Khosla Hospital Ludhiana due to intolerable pain. This fact was denied by them that complainant informed Sr. DMO Dr. Chetna Kapoor about his admission in emergency due to severe pain. The complainant took treatment from private unrecognized hospital at Ludhiana with complaint of pain of bilateral inguinal hernia for the last 1-2 months. At the time of admission of complainant in above hospital, it is recorded his pulse was 84/mis, BP-152/94 mmhg, conscious-oriented, adequate urine output, no feature of shock and afebrile. He was diagnosed as a case of bilateral inguinal hernia and underwent bilateral hernioplasty with mesh under spinal anaesthesia. The complainant was symptomatic for two months prior to admission, which was enough time for him to report to his authorized medical officer at HU/LDH to arrange for his treatment. This type of surgery is being routinely done at DH/FZR. It was denied that terms and conditions of this aspect alongwith exclusion clauses at the time of insuring the complainant under the RELHS scheme have not been supplied to him. It was denied that letter no.2005/H/6-4/policy-II dated 31.01.2007 was not applicable to the case of complainant. The answering OPs prayed for dismissal of the complaint.
First Appeal No. 797 of 2016 6
4. The complainant tendered in evidence his affidavit Ex.C-A alongwith documents Ex.C-1 to C-9 and closed the evidence. As against it; OPs tendered in evidence affidavit Ex.R-A of Dr. Chetna Kapoor and copies of documents Ex.R-1 to Ex.R-3 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ludhiana dismissed the complaint of the complainant. Dissatisfied with the order of the District Forum Ludhiana dated 14.09.2016, complainant now appellant, carried this appeal against the same.
5. We have heard the appellant in person and Sh. Sanjiv Ghai, counsel for the respondent at considerable length and have also examined the record of the case including written synopsis of the arguments of the appellant. Firstly, we decide this point as to whether there is relationship of consumer and service provider, between the parties in this case or not. The appellant also placed on record the synopsis of his written arguments. As per affidavit of complainant Ex.C-A, he purchased above said scheme, by paying Rs.7816/-, from OPs for availing their services. Once, the payment has been received by the OPs from complainant, hence relationship of consumer and service provider has come into existence in this case in our opinion. The OPs denied this fact that complainant is not the consumer, once the consideration has been received by OPs from complainant and hence the relationship of consumer and service provider is created in this case.
6. Now, we touch the main controversy of this case. The complainant was afflicted with bilateral inguinal hernia and he First Appeal No. 797 of 2016 7 underwent bilateral hernioplasty with mesh under spinal anaesthesia with Khosla Hospital at Ludhiana. He stated that he informed Dr. Chetna Kapoor DM of OPs about this procedure. On the other hand, OPs have not admitted this fact that he informed Dr. Chetna Kapoor about above procedure. The complainant stated this fact in affidavit Ex.C-A. On the other hand, Dr. Chetna Kapoor denied this fact by filing affidavit Ex.R-A on the record. No such letter sent by the complainant and received by Dr. Chetna Kapoor about this intimation has been brought to our notice on the record by the complainant to substantiate this fact. The complainant stated in his affidavit Ex.C-A and pleaded in complaint that he suffered from hernia since 1990 on left side of organic genital i.e. below the stomach. On 28.02.2014, due to intolerable pain, he was taken to Khosla Hospital Ludhiana for procedure, because there was no recognized hospital of OPs for such an emergency situation at Ludhiana. He further stated that he submitted claim of Rs.29,000/- for reimbursement for his above surgery. OP no.1 repudiated the claim on the above referred grounds. The complainant relied upon ID card issued by OPs under above scheme Ex.C-1 on the record. Ex.C-2 is the appeal filed by the complainant before the Chief Medical Director (CMD), Northern Railway Baroda House, New Delhi against rejection of his claim by OPs. Ex.C-3 is the repudiation letter dated 03.11.2014. Ex.C-4 is the letter to the complainant rejecting his appeal. Ex.C-5 is the bill for Rs.29,000/- issued by Khosla Hospital at Ludhiana for the expenses incurred by complainant on his treatment thereat. Ex.C-6 is the First Appeal No. 797 of 2016 8 certificate issued by Khosla Hospital to complainant. Ex.C-7 is the copy of response to OPs statement dated 10.06.2016.
7. OPs also produced on record affidavit of Dr. Chetna Kapoor, Senior Divisional Medical Officer, who testified that complainant himself admitted this fact that he suffered from hernia since 1990 for the last 25 years. There was no question of emergency insisting the procedure instantaneously, without informing the OPs, from an unrecognized hospital at Ludhiana. Patient had ample time to report his medical officer at health unit Ludhiana of OPs for further referring him to Divisional Hospital, Ferozepur for his treatment, because such type of treatment was available there. Ex.R-1 is the letter no.2005/H/6-4/Policy-II dated 31.01.2007 issued by Ministry of Railway of India to all the General Managers of all Indian Railway/Production Units, Director General, R.D.S.O., Lucknow. It has been recorded in it that as per extant rules, a railway beneficiary must report to Railway Medical Officer for his/her and dependent's medical treatment. The authorized Medical Officer will make necessary arrangements for medical treatment through Railway Hospital/Govt. Hospital/Pvt. recognized hospital. In exceptional situations, CMDs of Zonal Railways can obtain special permission from Railway Board for treatment in any Private Hospital on case to case basis. Hence, there is no scope available for any railway beneficiary to go to any private hospital himself/herself or their dependents on their own, except in case of emergency situation. Emergency means any condition of symptoms resulting from any cause arising suddenly and if not treated at the early First Appeal No. 797 of 2016 9 convenience, be detrimental to the health of the patient or will jeopardize the life of the patient like- road accidents, other types of accidents, acute heart attack etc. Ex.R-2 is the order of CMS/FZR rejecting the claim of complainant. Ex.R-3 is the repudiation letter.
8. The primary question arising before us for consideration is whether it was an emergency procedure for which complainant is entitled to reimbursement for the expenses incurred in private unrecognized hospital at Ludhiana without any prior approval of authorized medical officer of OP. The condition of emergency has to be confirmed by the authorized medical officer ex-post facto, as per definition of emergency. Had the complainant produced on record, the date and time of his operation and the record of used medicine or the detail of surgical procedure carried out on him, only then he would succeed in proving the emergency condition.
9. Para no.648(2) of Indian Railway Medical, Manual 2000 lays down that in case, where the treatment had to be taken in private/non-recognized hospitals in emergent circumstances, without being referred by the authorized medical officer, the General Managers are empowered to settle reimbursement claim upto Rs.50,000/- per case. All claims above Rs.50,000/- should be referred to the Railway Board alongwith the duly filled in proformas given in Annexure VI to this chapter. However, if treatment is neither available at Railway Hospital nor at recognized hospitals, Zonal Railways may refer the emergency cases to Private non recognized hospitals involving the cost of treatment up to Rs.50,000/-. Para no.670 of above manual lays down that special passes on medical First Appeal No. 797 of 2016 10 grounds will be issued for journey from station nearest to the residence of a Railway servant, where Railway medical facilities for treatment of the railway servant or his family members are not available to a station, where railway dispensary or hospital or sanatorium with the required facilities for treatment is located. Passes will ordinarily be issued for the class of entitlement of the railway servant on privilege account. The grant of higher class passes and attendants on medical grounds shall be regulated. If the patient is in big plaster, or physically handicapped or unconscious or paralyzed or mentally retarded, where one attendant cannot lift the patient, two attendants in the same class may be provided on the express recommendation of the Medical Officer of the Railway Department.
10. Now, we have to conclude this point as to whether the case of complainant for surgery of hernia is an emergency condition, taking the case out of the purview of clause 648 of Indian Railway Medical, Manual 2000. We find that complainant himself admitted this fact in his pleading and affidavit that he was afflicted with the ailment of hernia since 1990. As per discharge slip, patient was having pain for 1-2 months, which was enough time to report to his medical officer of OPs, health unit Ludhiana for arranging the treatment, but he failed to do so. No record of treatment or names of medicines used in procedure and name of tests carried out have been produced by the complainant on the record. The complainant also failed to disclose the date of surgical operation. Withholding of all these material documents by complainant leads to this inference First Appeal No. 797 of 2016 11 that the complainant though had sufficient time to contact the authorized medical officer of OPs, but he, instead chose to go to a private and unrecognized hospital at Ludhiana for the alleged procedure, which was not an emergent condition, as contemplated by the above manual and instructions. We are in agreement with the findings of the District Forum, as complainant has failed to prove on record that he got admitted in a private hospital in emergency condition for above said procedure to save his life.
11. The complainant relied upon some photostat copies of the authorities on the record. One photostat copy is CAT's decision and there is other photostat copy of order and it could not be made out by which Forum or Tribunal the same has been delivered. We find that the case under Consumer Protection Act, is decided on different parameters, as compared to the case before Civil Court and before Hon'ble High court with extraordinary constitutional powers. Here, the rules do not permit the treatment of non-emergency condition ailment from a private unrecognized hospital without prior authorization of the medical officers of OPs. Consequently, photostat copies of unreported cases (Supra) without any title thereto would not advance the case of the complainant any further in the Consumer Forum. We are in agreement with the conclusion of the District Forum recorded in the order under challenge in this case.
12. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed without any order as to costs.
First Appeal No. 797 of 2016 12
13. Arguments in this appeal were heard on 28.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER April 03, 2017 MM FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1103 of 2015
Date of Institution: 06.10.2015 Order Reserved on : 05.04.2017 Date of Decision : 07.04.2017 Mohinder Kumar aged 45 years son of Sh. Chuni Ram, resident of Village Dharampura, Tehsil Abohar, District Fazilka.
.....Appellant/complainant Versus
1. Dr. M.L. Madaan, Eye Surgeon, Madaan Eye Hospital, Near Swari Keshvanand School, Sahitya Sadan Road, Abohar, District Fazilka.
2. United India Insurance Company Limited, 42-C, 3rd floor, Moolchand Commercial Complex, New Delhi-110024.
.....Respondents/Opposite parties
First Appeal against order dated
24.08.2015 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member
Present:-
For appellant : Sh. Sandeep Khunger,Advocate
For respondent no.1 : Sh. Puneet Sharma, Advocate For respondent no.2 : Sh. Parminder Singh, Advocate ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 24.08.2015 of District Consumer Disputes Redressal Forum First Appeal No.1103 of 2015 2 Ferozepur (in short the 'District Forum), dismissing his complaint. The appellant of this appeal is the complainant in the original complaint before the District Forum and the respondents of this appeal are the OPs therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that he suffered from cataract in his right eye, being 45 years of age. Earlier, he took homeopathic medicines from Dr. Ram Niwas for allergy. In March, 2014, he visited Dr. Ram Niwas for his medicines, where he met OP no.1, who assured him for restoration of his eye sight by cataract surgery. The complainant was checked up by OP no.1 on 02.04.2012 and he suggested complainant for surgery of cataract, failing which his condition would deteriorate. OP no.1 further induced him that he would call one specialist doctor from Chandigarh for this purpose. OP claimed Rs.1,50,000/- as expenses which amount was paid by the complainant by making due arrangement. The complainant was operated upon on 08.04.2014 by OPs with his team. OP no.1 informed the complainant that lens has been implanted in his eye.
The dressing was removed on next day, but the complainant was unable to see from his right eye, which was operated upon, because vision thereof was completely lost. OP no.1 assured complainant for restoration of his vision within a few days. OP called complainant for treatment of his eye for one month and he visited OP no.1 after arranging vehicle for which he spent Rs.50,000/- to Rs.60,000/-, but First Appeal No.1103 of 2015 3 to no effect. OP no.1 took complainant to Max Hospital Bathinda, where complainant came to know that retina of his right eye has been cut during operation conducted by OP no.1. The complainant lost the eyesight. OP no.1 took the complainant at Grover Hospital, Bathinda, where Dr. Savita Grover treated his eye and complainant spent Rs.80,000/- to Rs.85,000/- thereat for his treatment. On asking of OP no.1, complainant also visited PGI Chandigarh, but to no effect. The complainant moved complaint to SSP Fazilka on 06.08.2014. Inquiry report was submitted on 28.08.2014 by SHO P.S. City I Abohar, in which the police found negligence on the part of OP, while conducting the cataract operation upon complainant. The police authorities directed the parties to approach Consumer Court, hence, the present complaint is filed by complainant praying that OP be directed to pay an amount of Rs.3,50,000/- alongwith interest @12% per annum; further to pay an amount of Rs.12,00,000/- alongwith interest @12% per annum as compensation for loss of his eye sight due to negligence of OP no.1 and for causing mental harassment; and to pay Rs.22,000/- as litigation expenses.
3. Upon notice, OP no.1 appeared and filed separate written reply by raising preliminary objections that complainant needs to be checked up by a Board of Senior Eye Surgeons from the Government Medical College, as the patient made false allegations. The complaint is alleged to be false, fabricated, wrong and baseless by malingering. The complaint is bad for non-joinder of necessary parties. No specific and justified allegations with regard to First Appeal No.1103 of 2015 4 negligence and deficiency in service have been leveled against OP no.1 by complainant. OP no.1 is well qualified, renowned and reputed eye surgeon practicing ophthalmology for the last 20 years. He is a retired senior eye surgeon from Civil Hospital Abohar and he has done more than 2000 eye surgeries, attended a number of eye camps, seminars, conferences at the State & National Level & achieved awards. The complainant was suffering from mature cataract in right eye & pseudophakia in left eye and he was advised cataract extraction with lens implantation in the right eye. He was operated for the cataract in right eye and lens was inserted with very good quality Pc IOL on 08.04.2014 at 11:00 am diligently, prudently, with utmost due care and caution. The complainant himself bought lens from Kalra Vision Care. The operation was conducted in the presence of Dr. Manjit Singh, a senior eye surgeon from Chandigarh, which was successful and his vision was absolutely normal (6/12 P). He was discharged on the same day afternoon at 01:30 pm with few medicines prescribed on the discharge slip alongwith few medicines prescribed on the discharge slip alongwith instructions and precautions to be taken after the operation. OP no.1 did not charge any operation fees from the complainant, as he was very close to the OP's neighbor Dr. Ram Niwas. On the evening of 08.04.2014 at 07:30 pm, the patient came with the complaint of mild dimension of Vision in the right eye after having an accidental injury. The patient was talking irrelevantly & smelling of alcohol. On examination, OP noticed shallow anterior chamber with mild leakage of aqueous from the temporal section. OP no.1 assured him nothing to worry and he First Appeal No.1103 of 2015 5 was advised suturing of the section and bandage for one to two days and thereafter he would be alright within 2-3 days, but he refused to get the stitching done in the presence of Dr. Ram Niwas and OP no.1 immediately referred him to renowned eye surgeon Dr. Shaveta Grover of Bathinda. Neither he went to Dr. Shaveta Grover nor did he came to OP no.1, despite repeated calls. On 16.04.2014 at 02:30 pm, complainant came to OP no.1 with the same complaint, carrying OPD slip from Dr. J.K. Gupta of Max Hospital, Bathinda. He was advised by Dr. J.K. Gupta with heavy doses of systemic steroids for one months and ultrasound of the right was done, which was absolutely wrong to suggest, as the chamber was already shallow & IOP was low, no suturing was done and the condition was deteriorating. OP no.1 advised him with a small dose of steroids for only four days and pad bandage for two day, but he again refused to do so. OP no.1 brought him to Dr. Shaveta Grover on 22.04.2012 and suturing of the corneoscleral section (temporal) was done by Dr. Shaveta Grover and advised also for pad and bandage for two days. No retina was cut, fundus was normal and sutures were removed on 20.05.2014 and only Rs.1200/- were charged for the whole procedure. His vision was almost normal and was prescribed glasses off-2.5 Dcyl at 10º as the suturing was delayed for 14 days, because of his own negligence. OP no.1 took him to PGI Chandigarh for advance treatment at his own expenses, where the highly skilled doctors examined him and found the operation to be good and advised certain instructions. The complaint was contested even on merits on the above referred grounds by OP no.1 by denying any First Appeal No.1103 of 2015 6 medical negligence on his part. The answering OP prayed for dismissal of the complaint.
4. OP no.2 filed its separate written reply raising preliminary objections denying any deficiency in service on the part of OP no.1. No claim has been lodged with OP no.2 by anybody in this case. There is no privity of contract between the complainant and OP no.2 and as such, complainant has no right, locus standi or cause of action to file the complaint. There was a specific contract between OP no.1 and OP no.2, as OP no.1 took professional indemnity Dr.(other) policy bearing no.041200/46/13/35/00001074, which was effective from 15.05.2013 to 14.05.2014. OP no.2 controverted the averments of complainant and prayed for dismissal of complaint.
5. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-34 and closed the evidence. As against it; OP no.1 tendered in evidence affidavits and documents Ex.OP1/1 to OP1/22 and closed the evidence. OP no.2 tendered in evidence affidavit with document Ex.OP2/1 to Ex.OP2/2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ferozepur dismissed the complaint of the complainant. Dissatisfied with the order of the District Forum Ferozepur dated 24.08.2015, complainant now appellant has carried this appeal against the same.
6. We have heard the learned counsel for the parties and have also examined the record of the case. The District Forum Ferozepur has not returned any finding of deficiency on this point in its order as to whether any medical negligence on the part of OP First Appeal No.1103 of 2015 7 no.1 now respondent no.1 is established in this case or not. The District Forum observed that complainant availed the services of OP no.1 for operating his eye. The District Forum held that it has not been established, if any consideration was paid by the complainant to OP no.1 at any stage. The District Forum recorded this observation that there is nothing on the record to prove that OP no.1 received any consideration from the complainant for giving any treatment to him. The District Forum further observed that OP no.1 has not charged any operation fee from complainant being close neighbor of Dr. Ram Niwas. The District Forum, thus, held that there is no relationship of consumer and service provider between the parties and hence dismissed the complaint, being not competent before the District Forum.
7. We have heard the submissions of counsel for the parties on this point and also examined the record of the case. We find that the findings of the District Forum are erroneous on this point that complainant is not proved to be consumer of OP no.1. The complainant has pleaded in the complaint that he paid Rs.1,50,000/- as expenses to OP no.1 for surgery of his right eye and he also spent some other expenses. He alleged retina cut on his right eye during cataract surgery, which allegedly pointed to negligence of OP no.1. On the other hand, written statement filed by OP no.1 has been carefully examined by us on the record. OP no.1 admitted this fact in para no.9 of the written reply, governed as factual matrix and medical facts, as no retina was cut, fundus was normal and sutures were removed on 20.05.2014 and only Rs.1200/- was charged for First Appeal No.1103 of 2015 8 the whole procedure. This is admission of OP no.1 in his written reply that Rs.1200/- were charged from the complainant for the whole procedure. Once, the consideration even of Rs.1200/- has been admitted to have been paid to him by the complainant the relationship of consumer and service provider is created. The relationship of consumer and service provider comes into existence between the parties. Reference be made to judgment of the National Commission in "Vijay H. Mankar Vs. Dr. Mangla Bansod and other" 2000(1)CPJ-37, observing this fact in para no.15 of the judgment that all persons who avail of the services of Doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and others avail the same free of charge. This observation in the cited authority was also recorded in the judgment of the Apex Court in case titled as "Indian Medical Association Vs. V.P. Shantha and others, III(1995) CPJ-1 (SC). The Apex Court has held in this authority that medical practitioners, Government Hospitals, nursing homes and private hospitals/nursing homes broadly fall in three categories: (i) where services are rendered free of charge to everybody availing the said services, (ii) where charges are required to be paid by everybody availing the services; and (iii) where charges are required to be paid by persons availing services, but certain category of persons, who cannot afford to pay are rendered services free of charges. Payment of even a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. The Apex Court has held in this authority that services rendered in the case, where First Appeal No.1103 of 2015 9 the charges are required to be paid for availing services to certain category of persons, who cannot afford to pay are rendered services free of charge, nevertheless they fall within the ambit of service, as defined in Section 2(1)(d) of the Act. Such type of persons who are rendered free services are the beneficiaries and they have been held to be consumers by the Apex Court. Consequently, we overturn the finding of the District Forum on this point that there is no relationship of consumer and service provider between the parties in this case. Since, no specific finding has been recorded by the District Forum on this point as to whether any medical negligence on the part of OP no.1 is established in this case or not, hence the case is liable to remitted to the District Forum for fresh decision on this point for deciding all the points of controversy in this case.
8. As a corollary of our above discussion, once the relationship of consumer and service provider comes into existence between the parties in this case, hence, the appeal is accepted and case is remanded to the District Forum Ferozepur for fresh decision in accordance with law after giving due opportunities of being heard to the parties in this case. The parties are directed to appear before the District Forum Ferozepur on 01.06.2017. The registry is directed to remit the complete file of the case forthwith to the concerned District Forum, so as to reach there well before date fixed.
9. Arguments in this appeal were heard on 05.04.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
First Appeal No.1103 of 2015 10
10. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER April 07, 2017 MM