State Consumer Disputes Redressal Commission
The Medical Officer,Government ... vs Uma Maheswari,Palayamkottai.& ... on 9 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.12/2014
(Against the order made in C.C.No.194/2011 dated 24.09.2012 on the file of
the District Forum, Tirunelveli.)
WEDNESDAY, THE 09th DAY OF FEBRUARY 2022
The Medical Officer,
Government Primary Health Centre,
Parkit Managaram,
Palayamkottai,
Tirunelveli. Appellant/1st Opposite Party
-Vs-
1. Uma Maheswari,
W/o Rajapandi,
Door No.138/7, North Street,
Naduvakurichy,
Palayamkottai, 1st Respondent/Complainant
2. Sri Iyyappan Clinical Laboratory,
Through its Proprietor,
243, Tiruchedur Road,
Palayamkottai. 2nd Respondent/2nd Opposite Party
Counsel for Appellant/Opposite party-1 : Mr.S.Kandaswamy, Advocate.
Counsel for Respondent-1/Complainant : Mr.P.J.Rameshraja, Advocate.
Counsel for Respondent-2/Opposite Party-2 : Mr.D.Mohan, Advocate.
This appeal coming before us for final hearing on 30.11.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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1. This appeal has been filed by the appellant/1st opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Tirunelveli made in C.C.No.194/2011, dated 28.08.2012, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Tirunelveli.
3. The 1st opposite party, suffering by an order, directing the opposite parties to pay a sum of Rs.15,000/- each to the complainant as compensation and to pay Rs.2000/- each towards costs to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Tirunelveli (hereinafter referred to as District Forum), has preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainant got married with one Rajapandi during 2009 and subsequently she became pregnant. She examined herself at Lakshmi Hospital Udaiyarpatti and she subjected herself for blood test on 17-02-2010. The blood test report revealed that the complainant's blood group is O positive and she was given a certificate regarding this aspect by Lakshmi Hospital. During 2010 the complainant gave birth to the first child and she is now pregnant for the second child. The complainant approached the 1st opposite party for examination on 25-05-2011 and blood test was taken in the above hospital on that date. The 1st opposite party gave a report regarding the blood group of the complainant as 'O negative‟. The 1st opposite party has also informed the 3 complainant that since her blood group is 'O negative‟ she had to be administered an injection within 24 hours. Subsequently the complainant approached the 2nd opposite party on 23-06-2011 for blood test the 2nd opposite party have also gave a report to the effect that her blood group is O negative. Hence the complainant again approached the Lakshmi Hospital for retest and after taking blood test they informed the complainant that her blood group is O positive. Dr.Madhubala of Lakshmi Hospital sent the complainant to Galaxy Hospital Tirunelveli to confirm her blood group on 29-06-2011 and in the Galaxy Hospital also her blood test was taken on 30-06-2011 and they have also informed that her blood group is O positive only. Because of the wrong reports given by the opposite parties the complainant was put too much mental agony and sufferings. The act of the opposite parties in having given wrong reports regarding the blood group of the complainant amounts to deficiency in service on their part. The complainant sent a notice to the 1st opposite party on 05-07-2011 but the above notice has returned since the 1st opposite party has refused to receive the same. Hence the complainant has filed this complaint to direct the opposite parties to pay Rs.2,00,000/- as compensation for the mental agony and sufferings caused to her and to pay the cost of the proceedings .
5. Written version filed by the 1st opposite party is as follows;- This complaint is not maintainable either in law or on facts and it has to be dismissed in limine. The 1st opposite party has been wrongly described as Health Officer instead of Medical Officer. Hence she has not received the notice sent by the complainant. Even though notice was sent to the 1st opposite party describing as Health Officer the 1st opposite party has received the same since the notice was sent from this Forum. The Medical Officer of the 1st opposite party Dr.Ramalatha was on 4 deputation to Primary Health Centre, Ukirankottai on 25-05-2011. On that date Dr.Seline Sobia was Medical Officer in the 1st opposite party Primary Health Centre. Hence there is no connection between the 1st opposite party and this complainant. The 1st opposite party has not done blood test to the complainant and she had not seen the complainant either on 25-05-2011 and on subsequent dates. The lab technician of the 1st opposite party had taken the blood test of the complainant on 25-05-2011 and he had only given the blood test report to the complainant stating as O positive based on that blood test report only Dr.Seline Sobia had examined the complainant. Since the Lab Technician is receiving salary from the Government for the work allotted to him he is a necessary party for this complaint and since he had not been impleaded as a party in this case the complaint is bad for non-joinder of necessary party. There is no relationship of service provider and consumer between the complainant and the 1st opposite party. Since the Lab Technician of the 1st opposite party has given the wrong report the relationship of service provider and consumer exist only between them. The complainant has to prove that she has subjected herself for blood test at Lakshmi Hospital Udaiyarpatti on 17-02-2010 and she was given blood test report as O positive. The complainant has not produced the blood test report of Lakshmi Hospital dated 29-06-2011 to prove her contention. The blood test is not taken by the Medical Officer of any hospital and it is taken only by the Lab Technician who has studied in that field. Based on the blood test report given by the Lab Technician patients are being treated by the Medical Officers in the hospitals. The complainant had not filed the blood test report of Galaxy Hospital, Tirunelveli. The complainant has not stated the reasons for coming to the conclusion that the blood test reports given by the opposite parties are wrong and the blood 5 test reports given by the Lakshmi Hospital and the Galaxy Hospital are correct. Hence the complaint against this opposite party is liable to be dismissed.
6. Written version filed by the 2nd opposite party is as follows;- This complaint is not maintainable either in law or on facts and it has to be dismissed in limine. The complainant has undergone blood test at Lakshmi Hospital on 17-02- 2010 and her blood has been examined under various heads and her blood group has also been stated as one among them. She had not undergone blood test separately to know her blood group. The complainant has stated in her complaint that the 1st opposite party had only advised her to administer injection within 24 hours after seeing the blood test report that her blood group is O positive and she had not stated anything regarding this opposite party. This opposite party has examined the complainant for her blood test on 23-06-2011 and she had correctly given the blood test report as O negative and the blood group of the complainant is only O negative and hence this opposite party has not committed any wrong regarding the blood group of the complainant. Even now if the complainant is examined for her blood group it will come only as O negative. If the complainant is examined at Tirunelveli Medical College Hospital regarding her blood group the real fact would come. The 2nd opposite party has stated this in her reply letter to the complainant also. The complainant had not produced the blood test report of Lakshmi Hospital dated 29-06-2011 in which it is alleged that her blood group has been stated as O positive. She had not also produced the blood test report given at Galaxy Hospital on 29-06-2011, hence the contention of the complainant that her blood group is O positive is not proved. This opposite party has not committed any deficiency in service and he has not given any wrong report to any person so far. 6 The complainant has not stated in her complaint that she sent a notice to this opposite party and the opposite party after having received the same has sent a reply letter. The complainant has sent a notice to this opposite party demanding compensation of Rs.1,00,000/- and she has purposely concealed the above fact in her complaint. If the persons who come for blood test for clinical labs produces their photos and identity cards then impersonations could be avoided, hence the complaint against this opposite party is liable to be dismissed.
7. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the opposite parties committed deficiency in service by giving wrong reports regarding the blood group of the complainant and thereby causing mental agony and sufferings to the complainant and directing the opposite parties to pay a sum of Rs.15,000/- each to the complainant as compensation and to pay Rs.2000/- each towards costs to the complainant.
8. Aggrieved against that order the 1st opposite party challenged it by filing this appeal stating that the District Forum has failed to note that there is no consumer relationship between the 1st opposite party and the complainant. Since there is no amount is paid to the 1st opposite party for the blood test. The 1st opposite party has been rendering this service for the public and there is no deficiency in service as defined under the Consumer Protection Act. Therefore, the appeal may be allowed and to set aside the District Forum order.
9. No additional documents were adduced by both parties in the appeal before this Commission.
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10. The 1st respondent/complainant and 2nd respondent/2nd opposite party are herein had not filed their written arguments after entering into appearance through advocate.
11. Point for consideration is;-
Whether the order passed by the Learned District Forum, Tirunelveli in C.C.No.194/2011, dated 28.08.2012 is sustainable under law or not?
12. Point:- The complainant during her first pregnancy she examined herself at Lakshmi Hospital, Udaiyarpatti and took blood test on 17.02.2010 and the report revealed that the complainant‟s blood group is O positive. During 2010 the complainant gave birth to the first child and again she is pregnant for the second child in the year 2011 she approached the 1st opposite party on 25.05.2011 for check-up and blood test was done by lab technician of blood test laboratory of Government Primary Health Centre, Parkit Managaram, Palayamkottai, in which the 1st opposite party worked as Medical Officer. In the blood test, her blood was tested as O Negative and the complainant was informed that her blood group is O Negative she had to be administered an injection within 24 hours. Neither treatment was given to her nor blood transfusion was made to her except to report her blood group is tested as O Negative in the 1st opposite party Government Primary Health Centre. Subsequently the complainant approached the 2nd opposite party on 23.06.2011 for blood test and its report revealed that her blood was tested and confirmed as O Negative. With confusion the complainant again approached the same Lakshmi Hospital for blood test on 29.06.2011 and then she was referred to Galaxy Hospital, Tirunelveli on 30.06.2011 and both those hospitals revealed that the complainant‟s blood group is O positive only. Hence the complainant herself concluded that the 8 wrong reports were given by the opposite parties 1 & 2. Alleging deficiency in service on their part and filed consumer complaint before the District Forum, Tirunelveli and sought for compensations. The learned District Forum passed the impugned order in favour of the complainant. Now, it was challenged by the 1 st opposite party in the appeal. The second opposite party has not challenged it.
13. The Learned Government Pleader appearing for the appellant/1st opposite party raised a contention that services rendered at a Government Primary Health Centre not comes under the purview of Consumer Protection Act. Since, no consideration was paid by the complainant where no charge whatsoever is made from any person availing the services and all patients are given free service outside the purview of the expression „service‟ as defined in Section 2 (1) (o) of the Act. Moreover the first opposite party was providing free service to all patients as Government Medical Officer and employed in the Government Health Centre, the complainant could not have invoked jurisdiction of Consumer Forum for deficiency in service. The provisions of the Consumer Protection Act are not attracted and the complainant will not come under the definition of „Consumer‟. The complainant is not entitled any relief under the Consumer Protection Act against the appellant/1st opposite party.
14. The counsel for the appellant/1st opposite party relying upon the following citations (1) 2014 (4) CPR 697 (NC) - in the case of Major Singh -Vs- State of Punjab, Through Collector & Others - At Page No.204 - "Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2 (1) (o) of the Act". (2) The Judgement of Hon‟ble Apex Court - in the case of - Indian Medical Association - 9 Vs- V.P.Shantha & Others - " In light of aforesaid observations it becomes clear that services are rendered on free of charge to everybody availing the said services the patients does not fall within the purview of consumer. (3) II (2015) CPJ 295 (NC) - National Consumer Disputes Redressal Commission, New Delhi - in the case of Chief Medical Officer & Another -Vs- Ramesh Chand Sharma.
15. Admittedly the appellant is a Government Doctor and employed at Primary Health Centre Palayamkottai and given service to the complainant at free of cost for which has been nothing charged for the service rendered by the first opposite party. It is not the case of the complainant she has availed services of the first opposite party on payment of any charges no iota evidence was produced by her before the District Forum for the payment of any consideration for availing services from the first opposite party. Admittedly the 1st opposite party is working as Medical Officer of the Government Primary Health Centre, it is not the case of the complainant in Primary Health Centre run by the Government services rendered to all patients, on payment when the complainant did not produced any evidence for the payment of consideration it becomes clear that the services rendered on free of charge to everybody availing the said services the patients does not fall within the purview of Consumer under Section 2 (1) (o) of Consumer Protection Act. When everybody availing free service the complainant does not fall within the purview of Consumer under Section 2 (1) (o) of Consumer Protection Act.
16. The blood test is not taken by Medical Officer and it is taken only by the Lab Technician. The Lab technicians had only given the blood test report to the complainant based on that report then Medical Officer had examined the complainant. The learned Government Pleader was informed that the first opposite 10 party was not available on that date of blood test and she was on deputation for emergent duty at Ukirankottai Primary Health Centre. One in-charge Medical Officer was attended Government Primary Health Centre in the place of first opposite party. The first opposite party has not done the blood test to the complainant and she had not seen the complainant either on 25.05.2011 and on subsequent dates. The complainant failed to do disclose the known fact of her blood group to the first opposite party as soon as she knows about the contradictory blood reports. If the complainant informed the known fact to the first opposite party immediately he would referred the complainant to the Centre at Tirunelveli Government Medical College Hospital for ascertaining her blood group necessity of sent it later through District Forum. Neither treatment was given to her nor blood transfusion was made to her except to report her blood group is tested as O Negative in the 1 st opposite party Government Primary Health Centre. The Doctors cannot be expected to know the medical history of the patient on their own, unless it is brought to their notice by the patient or their relatives. Withholding and suppressing the material facts of the history of the patient to the Doctor is unpardonable conduct of the patient/relatives. It was held in a case reported in - IV (2009) CPJ 56 (NC) - Usashi Mukherjee & Another - Vs- Coal India Limited & Others.
17. The learned District Forum without considering all those facts that the complainant availing free service from the first opposite party Primary Health Centre and passed the impugned order which was challenged by the first opposite party in this appeal. When the 1st opposite party rendering free service to all patients the complainant would not comes under the purview of Consumer Protection Act and she is not entitled to get any remedy under the Act against the first opposite party. 11 She can claim the remedy only against the second opposite party which is a Private Clinical Laboratory issued the blood test report on payment. Therefore, the order passed by the learned District Forum requires some modifications. The complaint against the appellant/1st opposite party is dismissed and the 1st respondent/complainant can get relief as per the order passed by the District Forum only against the 2nd respondent/2nd opposite party in those aspects and answered accordingly for the point for consideration.
18. In the result, the appeal is allowed by modifying the order of the learned District Consumer Disputes Redressal Forum, Tirunelveli made in C.C.No.194/2011, dated 24.09.2012. The complaint against the appellant/1st opposite party is dismissed. The 1st respondent/complainant can get relief as per the order passed by the District Forum only against the 2nd respondent/2nd opposite party. There shall be no order as to cost in this appeal.
The Registry is directed to refund the mandatory deposit to the appellant/1st opposite party with accrued interest thereon duly discharged in favour of the appellant/1st opposite party.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 09th day of February 2022.
Sd/-xxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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