State Consumer Disputes Redressal Commission
Khorbahara Ram Halba vs The Christian Hospital on 8 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/831
Instituted on : 13.11.2017
Khorbahra Ram Halba, S/o Late Shri Rupuram Halba,
Aged 50 years, R/o : Badgaon,
Tahsil - Dongargaon, Dist. Rajnandgoan (C.G.). ... Appellant (Complainant)
Vs.
The Manager,
The Christian Hospital, P.T.S.K., P.S. Kotwali,
Tehsil and District Rajnandgaon (C.G.) .... Respondent (Opposite Party)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Shri Pramod Kumar Soni, Advocate for the appellant (complainant).
Shri R.K. Bhawnani, Advocate for the respondent (O.P.)
ORDER
DATED : 08/February/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 23.06.2017, passed by District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum") in Complaint Case No.145/2017. By the impugned order, learned District Forum, has dismissed the complaint of the complainant holding that the District Forum, has no jurisdiction to hear the complaint.
2. Briefly stated the facts of the complaint of the complainant are that the wife of the complainant namely Smt. Kamla Bai, at the advice of Christian Fellowship Hospital, went to the O.P. Hospital for operation on 18.12.2014 along with other villagers of the village. On 18.12.2014, there was rush in the O.P. hospital, therefore, on 20.12.2014, the operation of eye of the wife of the complainant performed in the O.P. Hospital. The operation was performed // 2 // during 1.30 P.M. to 2.00 P.M. Immediately after operation, the wife of the complainant was suffering pain in chest and intimation regarding the same was immediately given by the complainant to the O.P. Hospital. The Doctor who was in duty told the complainant to give medicine to the patient. After consuming medicine, the condition of the patient was deteriorated but the O.P. hospital did not immediately treated the patient and also did not refer to a higher centre, for treatment. For want of sufficient treatment, at near about 10.00 P.M. the wife of the complainant died in the O.P. Hospital. Prior to conducting operation, the wife of the complainant was completely healthy. Due to treatment given by the doctors of the O.P. Hospital prior to operation and post operation, and giving expiry date medicines, the wife of the complainant suffered heavy chest pain, intimation regarding which was given to the doctors of the concerned Ware, but they did not take the matter seriously and also did not refer her to higher hospital for treatment. Due to negligence of doctors of the O.P. Hospital, the wife of the complainant died on 20.12.2014 at near about 10.00 P.M. The O.P. Hospital committed negligence in the treatment of wife of the complainant, due to which she untimely died. The complainant suffered irreparable loss. The complainant sent legal notice to the O.P. on 17.12.2017 and requested to pay compensation within 30 days of receipt of notice, which was received by the O.P., but the O.P. did not pay the compensation to the complainant. Hence the complainant filed the instant complaint before the District Forum and prayed for granting reliefs, as mentioned in the prayer clause of the complaint.
// 3 //
3. The complainant has filed documents. Ex.P-1 is application dated 27.01.2015 sent by the complainant to the Member of Parliament, District Rajnandgaon, Ex.P.-2 is application dated 04.02.2016 submitted by the complainant before Public Information Officer, District Office, Rajnandgaon for obtaining information under Right to Information Act, 2005, Ex.P.3 is Memo dated 06.10.2015 sent by Additional District Magistrate, District Rajnandgon to Chief Medical and Health Officer, District Rajnandgaon (C.G.), Ex.P-4(A) is Receipt, dated 17.03.2016, Ex.P-4 (B) is Memo dated 04.03.2016 sent by Additional District Magistrate, Rajnadgaon (C.G.) to Public Information Officer (Revenue), District Office, Rajnandgaon, Ex.P-4(C) is Memo dated 29.09.2015 sent by Deputy Collector & Nodal Officer (Jandarshan), Rajnandgaon to Officer Incharge (S.W. Branch), District Office Rajnandgaon, Ex.P.-4(D) is letter dated 10.09.2015 sent by Joint Secretary, Chief Minister, Government of Chhattisgarh to the Collector, Rajnandgaon, Ex.P.4(E) is application dated 10.09.2015 sent by the complainant to Chief Minister, Government of Chhattisgarh, Ex.P-4(F) is memo dated 06.10.2015 sent by Additional District Magistrate, District Rajnandgaon to Chief Medical and Health Officer, District Rajnandgaon, Ex.P4(G) is letter dated 03.11.2015 sent by Chief Medical and Health Officer, District Rajnandgaon to Dr. V.K. Shrivastava, Eye Specialist, District Hospital, Rajnandgaon (C.G.), Ex.P.4(H) is reminder dated 13.01.2016 sent by Additional District Magistrate, District Rajnandgaon (C.G.) to to Chief Medical and Health Officer, District Rajnandgaon, Ex. P-4 (I) is Memo dated 23.02.2016 sent by Additional District Magistrate, District Rajnandgaon (C.G.) to Nodal Officer (Time - Limit), District Office, Rajnandgaon, Ex. P-4(J)is letter dated 20.01.2016 sent by Chief // 4 // Medical & Health Officer, District Rajnandgaon (C.G.) to Additional District Magistrate, District Rajnandgaon (C.G.), Ex.P.4 (K) is letter dated 19.01.2016 sent by Nodal Officer Dr. V.K. Shrivastava, Eye Specialist to Chief Medical and Health Officer, Rajnandgaon (C.G.), Ex. P.-4 (L) is Statement of Mr. Thomas Abraham dated 17.10.2015, Ex.P.-4 (M) is notice dated 18.04.2014 sent by Officer Incharge, Police Station Kotwali, District Rajnandgaon to Manager, Christian Fellowship Hospital, Rajnandgaon (C.G.), Ex.P-4(O) is Death Form, Order Sheet recorded by the O.P. Hospital etc., Ex.P-4(A) is registered notice dated 17.02.2017 sent by Gomti Thakur, Advocate to O.P., Ex.P-5 (B) and 5(C) are acknowledgement, Ex.P.6(A) is reply to registered notice sent by Ashok Mahobia, Advocate to Smt. Gomti Thakur, Ex.P.6(b) is acknowledgement.
4. Shri Pramod Kumar Soni, learned counsel appearing for the appellant (complainant) has argued that the wife of the complainant, Smt. Kamla Bai went to the O.P. Hospital, Rajnandgaon on 18.12.2014 and on 20.12.2014 the operation of left eye of Kamla Bai was done in the O.P. Hospital. Shri Soni further argued that the treatment was given by the O.P. Hospital after obtaining fees. The complainant also paid amount for operation. Due to negligent act of the O.P. Hospital, the wife of the complainant suffered pain and she died, therefore, the complainant is beneficiary of the deceased Smt. Kamla Bai, and being her husband, the complainant is consumer. The impugned order passed by the District Forum, is erroneous and is liable to be set aside. The appeal be allowed. He placed reliance on Rajendra Sharma Vs. ESI Hospital & Ors. II (2006) CPJ 393 (Karnataka State Commission, // 5 // Bangalore); Indian Medical Association Vs. V.P. Shantha & Ors. (1995) 6 SCC 651.
5. Shri R.K. Bhawnani, learned counsel appearing for the respondent (O.P.) has argued that the treatment given to the deceased Smt. Kamla Bai, was free of cost, therefore, the complainant is not a consumer. The impugned order passed by the District Forum is just and proper and does not call for any interference by this Commission. The appeal filed by the appellant (complainant) be dismissed.
6. We have heard learned counsels appearing for both the parties and have also perused the record of the District Forum as well as the impugned order.
7. In Indian Medical Association Vs. V. P. Shantha & Ors. (Supra), Hon'ble Supreme Court has observed thus :-
"55. On the basis of the above discussion, we arrive at the following conclusions;
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act. (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(3) A "contract of personal service" has to be distinguished from a "contract for personal services". In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a 'contact of personal service'.
// 6 // Such service is service rendered under a "contract for personal services" and is not covered by exclusionary clause of the definition of 'service contained in Section 2(1)(o) of the Act.
(4) The expression "contract of personal service" in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1)(o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached 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.
(6) Service rendered at a non-government hospital/nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service-is outside the purview of the expression '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.
(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression 'service' as defined in Section 2(1)(o) of the Act.
(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression 'service' as defined in section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be 'service' and the recipient a 'consumer' under the Act.
(9) Service rendered at a government hospital/health centre/dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service-is outside the purview of the expression 'service' as defined in Section 2(1)(o) of the Act. The payment of a token amount for // 7 // registration purpose only at the hospital/nursing home would not alter the position.
(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression 'service' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be 'service' and the recipient a 'consumer' under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(o) of the Act."
8- In Smt. Savita Garg Vs. The Director, National Heart Institute, IV (2004) CPJ 40 (SC), Hon'ble Supreme Court has observed thus :-
"15. Indian Medical Association v. V.P. Shantha & Ors., reported in III (1995) CPJ 1 (SC)=AIR 1996 SC 550. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-à-vis the medical profession. This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the Institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients. Their Lordships have gone to the extent that even if the doctors are rendering services free of charge to the patient in the Government hospitals, the provision of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid // 8 // by the tax payers. Their Lordships have dealt with regard to the definition of "service" given in Section 2 (1) (o) of the Consumer Protection Act, 1986, and have observed as follows:
"The service rendered free of charge to patients by doctors/hospitals whether non-Govt. or Govt. who render free service to poor patients but charge fee for service rendered to other patients would, even though it is free, not be excluded from definition of service in Section 2 (1) (o). The Act seeks to protect the interests of consumers as a class.
To hold otherwise would mean that the protection of the Act would be a available to only those who can afford to pay an such protection would be denied to those who cannot so afford."
9. In Anil Kumar Mittal (Dr.) Vs. Neelam Gupta & Ors., IV (2015) CPJ 597 (NC), Hon'ble National Commission, has observed thus :-
"15. Day-by-day the Public Health is crippling in our country because of rampant unethical practices and negligence in the Govt. hospitals. There is no accountability of negligence committed by the doctors working in Govt. hospitals. The poor patients are victimized. The most of victims of negligence are unable to knock the door of Court and very few patients (only tip of an ice berg) approach the Courts, but Government doctors escape from clutches of Consumer Protection Act under principle of "Contract for service." Govt.
hospitals are not immune to such gross negligence. It was made clear from the landmark judgment of Hon'ble Supreme Court in Indian Medical Association v. V. P. Shanth, III (1995) CPJ 1 (SC)=1995 (SLT Soft) 561=I (1996) CLT 81 (SC), that the Govt. hospitals are also liable under CP Act.
16. The Hon'ble Supreme Court on 1st July, 2015, in its recent landmark judgment in the case of V. Krishnakumar v. State of Tamil Nadu & Ors., VI (2015) SLT769=III (2015) CPJ 15 (SC)=Civil Appeal No. 8065 of 2009, the bench of Hon'ble Mr. Justices Jadgish Singh Khehar and S.A. Bobde held, the State Govt. and Govt. Hospital liable for medical negligence and imposed compensation at the tune of Rs. 1.38 Crores. Hon'ble Mr. Justice Bobde observed in para 27 that:
// 9 // "It is settled law that the hospital is vicariously liable for the acts of its doctors vide Savita Garg v. National Heart Institute, (2004) 8 SCC 56, also followed in Balram Prasad's case (Supra). Similarly in Achutrao Haribhau Khodwa v. State of Maharashtra, (1996) 2 SCC 634 this Court unequivocally held that the state would be vicariously liable for the damages which may become payble on account of negligence of its doctors or other employees. By the same measure, it is not possible to absolve Respondent No. 1, the State of Tamil Nadu, which establishes and admimisters such hospitals through its Department of Health, from its liability."
10. Looking to the pleadings of the complainant and facts of the case, it appears that the operation of eye of the wife of the complainant, was done in the O.P. Hospital. The complainant specifically pleaded that the O.P. Hospital treated the patient after receiving fees.
11. Looking to facts and circumstances, it appears that the operation of the wife of the complainant was conducted in the O.P. Hospital and the complainant paid the fees to the O.P. hospital for operation, therefore, the complainant is consumer under Section 2(1)(d) of the Consumer Protection Act, 1986 and the O.P. is service provider under Section 2(1)(o) of the Consumer Protection Act, 1986.
12. Therefore, the appeal filed by the appellant (complainant) is allowed and impugned order dated 23.06.2017, passed by the District Forum, is set aside. The case is remitted back to the District Forum with a direction to provide opportunity to the respondent (O.P.) for filing written statement and also provide opportunity to both the parties to file documents. Thereafter hearing both the parties, to decide the case on its own merits. Parties are // 10 // directed to appear before the District Forum, Rajnandgaon (C.G.) on 28.02.2018. Office is directed to send the record of the case forthwith to the District Forum, Rajnandgaon (C.G.).
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta) President Member Member 08 /02/2018 08 /02/2018 08 /02/2018