State Consumer Disputes Redressal Commission
Manjit Singh vs Civil Hospital, Payal on 3 February, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.486 of 2005
Date of institution : 30.3.2005
Date of decision : 03.2.2011
1. Manjit Singh son of Shadi Singh &
2. Baljinder Kaur w/o Manjit Singh both r/o Village & Post Office Ghangas,
Tehsil Payal, Ludhiana.
.......Appellants
Versus
1. Civil Hospital, Payal, District Ludhiana through its Senior Medical Officer.
2. The Punjab Health Systems Corporation, Phase VI, behind Civil Hospital,
Mohali, Punjab through authorized signatory.
3. Senior Medical Officer, Civil Hospital, Payal, Ludhiana.
......Respondents
First Appeal against the order dated 20.1.2005 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri Munish Goel, Advocate. For respondents No.1 & 2 : Shri Balbir Singh, Senior Assistant.
For respondent No.3 : None.
JUSTICE S.N. AGGARWAL, PRESIDENT:
Baljinder Kaur appellant No.2 was the wife of Manjit Singh appellant No.1. She had become pregnant. She got sterilization operation conducted from the respondents on 23.9.1994 for which a certificate was given by the respondents to her. She was assured that no child would be born to her but later on the sterilization operation had failed and the child was born.
2. It was further pleaded that the appellant Baljinder Kaur again got herself subjected to sterilization operation on 27.2.1998 from the respondents and she was First Appeal No.486 of 2005. 2 told that she will have no conception. However when she got herself medically examined on 7.12.2003 in Sidhu Hospital, she came to know that she had full term pregnancy and labour pain and a male baby was born to her and she was discharged on 8.12.2003. Again the sterilization operation conducted by the respondents failed and it was very difficult for the appellants to afford the child and to spend on his maintenance/education and bringing up. Hence the complaint for compensation of Rs.15 lakhs. Interest and costs were also prayed.
3. The complaint was dismissed by the learned District Forum vide impugned order dated 20.1.2005 on the plea that the appellants were not the consumers.
4. Hence the appeal.
5. The submission of the learned counsel for the appellants was that they had paid medical fee to the respondents and, therefore, they were the consumers of the respondents. Hence it was prayed that the appeal be accepted and the matter be remitted to the learned District Forum for deciding the complaint on merits after giving notice to the respondents. Reliance was placed on the Government instructions dated 23.9.2004 and the judgment of the Hon'ble U.T. State Consumer Disputes Redressal Commission, Chandigarh reported as "DEVENDRA KUMAR SHARMA & ORS. v. POST GRADUATE INSTITUTE OF MEDICAL EDUCATION & RESEARCH & ORS." I(2002)CPJ 211, another judgment of the Hon'ble National Commission reported as "Sailesh Munjal and another v. All India Institute of Medical Sciences & others" 2004(3) CLT 269. It was further submitted that according to the law laid down in these judgments the appellants were the consumers qua the respondents.
6. On the other hand, the representative of the respondents submitted that the appellants were not the consumers of the respondents as they had taken free medical treatment i.e. sterilization operation. Hence it was submitted that there was no merit in the present appeal and the same be dismissed.
7. Record has been perused. Submissions have been considered. First Appeal No.486 of 2005. 3
8. So far as the sterilization operation which was allegedly got conducted by Baljinder Kaur appellant from the respondent hospital on 23.9.1994 is concerned, the complaint was clearly barred by time having been filed on 28.12.2004. Therefore the appellants cannot agitate regarding that operation.
9. So far as the sterilization operation got conducted by Baljinder Kaur appellant on 28.2.1998 is concerned, the child was allegedly born on 7/8.12.2003. There is no doubt that the respondents are the Government hospitals. The appellants have failed to produce any document to show if they had made any payment to the respondents for getting the sterilization operation conducted.
10. Reliance was placed by the learned counsel for the appellants on the document issued by the Government of Punjab, Department of Health and Family Welfare, Punjab (Comparative User Charges Rates) Ex.C-7. It was submitted that every patient has to deposit purchee fee, admission charges, visiting fee charges and room AC charges etc. Therefore sterilization operation was conducted by the respondents on payment basis and for a consideration. Therefore as per the judgments, referred to above, the appellants were the consumers qua the respondents.
11. This submission has been considered. It has no merits at all. The payment of these charges are only procedural expenses 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 5 as under:-
"5. The National Commission by its judgment and order in Consumer Unity & Trust Society versus State of Rajasthan, (1992) 1 C.P.J. 259 (N.C.) has held that persons who avail themselves of the facility of medical treatment in government hospitals are not 'consumers' and the said facility offered in the government hospitals First Appeal No.486 of 2005. 4 cannot be regarded as service 'hired' for 'consideration'. It has been held that the payment of direct or indirect taxes by the public does not constitute 'consideration' paid for hiring the services rendered in the government hospitals. It has also been held that contribution made by a government employee in the Central Government Health Scheme or such other similar Scheme does not make him a 'consumer' within the meaning of the Act. Civil Appeal arising out of SLP (C) No.18497 of 1993 has been filed by Consumer Unity Trust Society, a recognized consumer association, against this judgment of the National Commission."
12. It was concluded by the Hon'ble Supreme Court in V.P. Shantha's case (supra) 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 persons who cannot afford to pay are rendered service free of charges.First Appeal No.486 of 2005. 5
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."
13. It was also observed by the Hon'ble Supreme Court in the aforesaid judgment as under:-
"44. The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1)(o) of the Act. In our opinion, the question has to be answered in the negative."First Appeal No.486 of 2005. 6
14. It was further observed by the Hon'ble Supreme Court in the aforesaid judgment as under:-
"45. In respect of the hospitals/nursing homes (government and non-government) falling in category
(i), i.e., 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)(o) 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 First Appeal No.486 of 2005. 7 availing of the service or for his benefit so as to make the person availing of 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)."
15. Learned counsel for the appellants also relied upon the copy of the letter dated 23.9.2004 issued by the Punjab Health Systems Corporation to all Civil Surgeons in the State of Punjab and to the Medical Superintendent of Mata Kaushalaya Hospital, Patiala & Civil Hospital, Jalandhar Annexure A-3 according to which again certain amounts were specified for certain charges.
16. As discussed above, these charges are only for the procedures which are required to be followed for treating the patients. These cannot be termed as the medical fee or a consideration charged by the doctors in the Government hospitals.
17. Reference can 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 latest 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).
18. 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".
19. In view of the law laid down by the Hon'ble Supreme Court discussed above, the judgments of the Hon'ble National Commission and the Hon'ble U.T. State Commission need not be discussed as the law laid down in these judgments is superseded by the law laid down by the Hon'ble Supreme Court. First Appeal No.486 of 2005. 8
20. Keeping in view the discussion held above, the appellants are not the consumers. Therefore the complaint filed by them under the Consumer Protection Act, 1986 is not maintainable.
21. There is no merit in the present appeal and the same is dismissed.
22. The arguments in this case were heard on 24.1.2011 and the order was reserved. Now, the order be communicated to the parties.
23. 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
February 3 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER