State Consumer Disputes Redressal Commission
Shri Badri Chowdhury. vs Superintendent on 28 January, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/257/2011 (Arisen out of Order Dated 30/09/1996 in Case No. 59/1996 of District Hooghly) 1. Shri Badri Chowdhury. S/O Late Shyamlal Chowdhury, Gondalpara, PS. Chandannagar, Dist. Hooghly. ...........Appellant(s) Versus 1. Superintendent Chandannagar Sub-Divisional Hospital. PO. Chandannagar, Dist. Hooghly. 2. Principal Secretary Health Department, Goverment of West Bengal, Swastha Bhavan, Salt lake City, Kolkata. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Manojit Pal., Advocate For the Respondent: Mr. Atindra Kumar Mukherjee, Ms. Sayatani Das, Advocate Mr. Atindra Kumar Mukherjee, Ms. Sayantani Das, Advocate ORDER
28/01/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order dated 30/06/96 passed by Learned District Forum, Hooghly in CC 59 of 1996 dismissing the complaint holding that the Complainant was not a consumer as the alleged treatment was rendered free of charges.
The case of the Complainant/Appellant, in short, is that on 12/06/96 the son of the Complainant was bitten by a street dog. The Complainant took his son to Chandannagore Sub-Divisional Hospital on 13/06/96 in the afternoon and the doctor on duty Smt. Kalyani Sil advised 10 anti rabies injections. From 18/06/96 to 27/06/96 the said injections were administered and the said doctor told that there was nothing to fear from the dog bite as the full course of the said injection was given. Subsequently, the son of the Complainant was attacked with rabies and he was taken to Beleghata I.D. Hospital. The Complainant suspected that the 10 injections which were administered at Chandannagore Sub-Divisional Hospital were fake and, as such, his son expired. Under the circumstances, the Complainant filed the complaint before the Learned District Forum.
The Learned District Forum dismissed the complaint holding that the injections were administered by the doctor of the Chandannagore Sub-Divisional Hospital free of charges and, as such, the Complainant could not be said to be a consumer. The Learned District Forum relied on the decision of the Hon'ble Supreme Court reported in AIR 96 SC 550 [Indian Medical Association vs. V. P. Santha & Ors.].
The Learned Counsel for the Appellant/Complainant has submitted that after the dismissal of the complaint bearing no.CC 59 of 1996 on the ground that the Complainant was not a consumer, another complaint was filed by the Complainant bearing no.CC 29 of 1998 which was dismissed being barred by res judicata. The Complainant preferred Appeal bearing no.SC 568/A of 1998 which was allowed and the Chandannagore Sub-Divisional Hospital was directed to pay compensation of Rs.5,000/- to the Appellant and Director of Health Services, Government of West Bengal was directed to pay Rs.2 lakh to the Appellant for its failure to supply proper quality serum and also for maintaining necessary infrastructure at the Sub-Divisional Hospital. The Hon'ble National Commission in RP No.2522 of 2006 held that the second complaint was barred by res judicata and, therefore, the second complaint was not maintainable and the Revision Petition was allowed setting aside the judgment passed by the State Commission. It is submitted that thereafter the present FA bearing no.257 of 2011 was filed against the judgment and order of the Learned District Forum whereby the first complaint bearing no.CC 59 of 1996 was dismissed. It is submitted that this Appeal was preferred with condonation of delay of 14 years which was condoned by this Commission and affirmed by the Hon'ble National Commission in RP No.1021 of 2013. It is submitted by the Learned Counsel that the present Appeal relates to the first complaint which was dismissed. It is contended that the Complainant approached the Human Rights Commission. It is submitted that in spite of administering the anti rabies injections, the son of the Complainant was attacked with rabies and ultimately expired. It is contended that the services at the Hospital were not absolutely free of charges and the Complainant had to pay charges on some counts. It is contended that the Complainant is a consumer and the complaint is maintainable.
The Learned Counsel for the Respondent has submitted that in the petition of complaint vague allegations were raised by the Complainant for which the complaint cannot stand. It is submitted that the Complainant's allegations were based on mere presumption about alleged fake injections. It is submitted that the Complainant visited the Beleghata I.D. Hospital after two months and no treatment sheet has been filed in respect of that Hospital. It is submitted that the name of the doctor was deleted and the complaint now stands against Superintendent, Chandannagore Sub-Divisional Hospital and the Principal Secretary of the Health Department. It is contended that the complaint was dismissed only on the point of maintainability and there was no scope to adduce evidence by either side.
We have heard the submission made by both sides and perused the papers on record. The Learned Counsel for the Respondent admitted that on some counts charges are realized by the Sub-Divisional Hospital. The Hon'ble Apex Court in the decision reported in 2014 (1) CPR 247 (SC) [Paschim Banga Khet Mazdoor Samity & Ors. Vs. State of West Bengal & Ors.] held that in a welfare State primary duty of Government is to secure welfare of people and providing adequate medical facilities for people is an essential part of obligations undertaken by Government in a welfare State. It has further been held that Government discharges this obligation by running Hospitals and Health Centres which provide medical care to persons seeking to avail facilities and Hospitals run by the State and Medical Officers employed therein are duty bound to extend medical assistance for preserving human life and the failure on the part of a Government Hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21 of the Constitution. It has been held that the Petitioner in such a case be suitably compensated for breach of his right guaranteed under Article 21 of Constitution. Relying on the aforesaid decision, we are of the view that the Complainant is a consumer u/s 2(1)(d) of the C. P. Act, 1986 and the complaint is maintainable.
Admittedly, the complaint was dismissed by the Learned District Forum at the threshold on a preliminary issue. There was no scope for either side to adduce any evidence. In absence of any fact finding on the basis of evidence, we find it expedient in the interest of justice to send back the case on remand to the Learned District Forum for decision on merits according to law.
The Appeal is allowed. The impugned order is set aside. The case is sent back on remand to the Learned District Forum with the direction to give opportunity to the parties to adduce evidence and thereafter decide the case on merits according to law. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER