State Consumer Disputes Redressal Commission
Vidya Bhushan Tiwari vs Dr P K Singh on 18 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/1995/283 (Arisen out of Order Dated in Case No. of District ) 1. Vidya Bhushan Tiwari A ...........Appellant(s) Versus 1. Dr P K Singh a ...........Respondent(s) BEFORE: HON'ABLE MR. JUSTICE PRESIDENT PRESIDENT HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN PRESIDENT For the Appellant: For the Respondent: Dated : 18 Jan 2018 Final Order / Judgement
RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW APPEAL NO. 283 OF 1995 (Against the judgment/order dated 27-01-1995 in Complaint Case No.211/1994 of the District Consumer Forum, Ballia) Vidhya Bhushan Tiwari Advocate Civil Court, Ballia.
...Appellant Vs. Dr. P K Singh Medical Officer Sadar Hospital, Ballia.
Dr. G C Upadhyaya Medical Officer Sadar Hospital, Ballia.
Dr. Gyan Prakash Medical Officer Sadar, Ballia.
Smt. Uma Srivastava Staff Nurse, Sadar Hospital Ballia ...Respondents BEFORE:
HON'BLE MR. JUSTICE AKHTER HUSAIN KHAN, PRESIDENT For the Appellant : Sri Satya Prakash Pandey, Advocate.
For the Respondent : None appeared Dated : 28-02-2018 JUDGMENT PER MR. JUSTICE A. H. KHAN, PRESIDENT
This is an appeal filed before State Commission under Section-15 of the Consumer Protection Act 1986 against the order dated 27-01-1995 passed by District Consumer Forum, Ballia in Complaint Case No.211 of 1994; Vidya Bhusan Tiwari V/s Dr. P K Singh, Medical Officer, Sadar Hospital, Ballia and others whereby District Consumer Forum has dismissed complaint.
Feeling aggrieved complainant has filed this appeal.
Learned Counsel Mr. Satya Prakash Pandey appeared for appellant.:2:
None appeared for respondents.
I have heard learned Counsel for the appellant and perused impugned order as well as records.
Perusal of impugned order shows that the District Consumer Forum has dismissed complaint placing reliance on judgment of Hon'ble National Commission rendered in the case of Suhas Mohan Halulkar V/s Secretary Public Health Department, Government of Maharastra reported in 1994 CPJ 124 NC wherein it has been held that the service rendered by government hospital is not a service under the Consumer Protection Act 1986.
Learned Counsel for the appellant has referred judgment of Hon'ble National Commission rendered in the case of Anil Kumar Mittal (Dr) V/s Neelam Gupta and others reported in IV (2015) CPJ 597 NC. Learned Counsel for the appellant has further referred judgment of Hon'ble National Commission rendered in the case of Royapettah Government Hospital V/s R Lakshmi reported in II(2016) CPJ 639 N.C. Learned Counsel for the appellant has contended that the order passed by District Consumer Forum is erroneous. Complaint is maintainable under the Consumer Protection Act 1986 against government hospital and doctors.
I have considered the submission made by learned Counsel for the appellant. I have perused the case laws referred by learned Counsel for the appellant carefully. In both judgments of Hon'ble National Commission reliance has been placed on following judgments of Hon'ble Apex Court.
Indian Medical Association V/s V P Shantha III(1995) CPJ 1 SC.
Savita Garg V/s Director, National Heart Institute IV (2004) CPJ 40 SC.
V. Krishna Kumar V/s State of Tamil Nadu and others III(2015) CPJ 15 SC.
In the case of Indian Medical Association V/s V P Shantha (Supra) Hon'ble Apex Court has considered the issue as to whether service rendered by government hospital is service under the Consumer Protection Act 1986 and has laid down following principle in this respect.:3:
"where no charges whatsoever are made from any person and they are given free service it is no service under Section 2(1)(o) of the Act. But where the service is rendered in government hospital/health centre/dispensary on payment of charges and also rendered free of charges, then it comes within the ambit of service. If a patient or his relative availed of the service of medical practitioner or hospital or nursing home where charges for consultation, diagnosis and medical treatment are borne by the Insurance Company or an employee then such service will come within the ambit of service."
In the case of Savita Garg V/s Director, National Heart Institute (supra) as well as in the case of V. Krishna Kumar V/s State of Tamil Nadu and others (supra) Hon'ble Apex Court has placed reliance on its earlier judgment rendered in the case of Indian Medical Association V/s V P Shantha.
In view of principle laid down by Hon'ble Apex Court in above case it is crystal clear that if the service is rendered by a government hospital free to all it is not a service defined in Section 2 (1)(o) of the Consumer Protection Act 1986. But if the service is rendered by a government hospital on payment of charges to some persons it shall be service defined in Section 2(1)(o) of the Consumer Protection Act 1986 even though free service has been provided to some persons. Even service would also be service under the Act.
Per averment of complaint opposite parties No. 1 to 3 are medical officers of Sadar Hospital, Ballia and opposite party No.4 is staff nurse of said hospital. Complainant has made no payment for treatment of his patient except registration fee of Rs.3/-. There is no averment in complaint to the effect that the Sadar Hospital, Ballia provides medical treatment on payment of charges.
In the case of Indian Medical Association V/s V P Shantha (supra) Hon'ble Apex Court has clearly held as follows:-
"Service rendered free of charge by a medical practitioner attached :4: to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position."
In view of discussion made above as well as proposition laid down by Hon'ble Apex Court I am of the view that the District Consumer Forum has rightly held that the service rendered by respondents who are doctors and staff of government hospital is not a service covered with the Consumer Protection Act 1986.
In view of above complaint is not maintainable under the Consumer Protection Act 1986. The District Consumer Forum has rightly dismissed complaint.
In the case of Achut Rao Haribhau Khodwa and others V/s State of Maharashtra and others reported in Consumer Protection Cases 1996(1) 465 SC Honourable Apex Court has held that maintaining a hospital by government does not come under the exercise of sovereign power. No immunity can be claimed for the tortuous acts of the hospital employees on this ground. Doctor is responsible for the tortuous act.
In view of this judgment of Honourable Apex Court doctor and employees of government hospital are liable for tortuous act and action may be brought against them in common court of law. As such appeal is liable to be dismissed with liberty to appellant/complainant to move appropriate court in accordance with law.
ORDER Appeal is dismissed with liberty to appellant/complainant to move appropriate court in accordance with law.
Parties shall bear their own costs.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A H KHAN ) PRESIDENT Pnt.
[HON'ABLE MR. JUSTICE PRESIDENT] PRESIDENT [HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN] PRESIDENT