State Consumer Disputes Redressal Commission
Dr.Anil Sharma vs Dharambir on 30 January, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA PANCHKULA First appeal No.767 of 2016 Date of the Institution:22.08.2016 Date of Decision: 30.01.2018 1. Dr. Anil Sharma, S/o Sh.Rajendra Prasad Presently working at General Hospital, Narnaul Distt. Mahendergarh. 2. Smt. Kamlesh, Staff Nurse, Community Health Centre, Kanina, Distt. Mahinderagarh. .....Appellants Versus 1. Dharambir S/o Shri Madan Lal, Caste Brahman, R/o Village Karira,Tehsil and District Mahendergarh. .....Contesting Respondent 2. Smt. Raj Kumar, Staff Nurse, Community Health Centre Kanina, District Mahindergarh. 3. Civil Surgeon Civil Hospital Narnaul, Mahendergarh. .....Performa Respondents CORAM: Mr.R.K.Bishnoi, Judicial Member Mrs. Urvashi Agnihotri, Member Present:- Mr.B.S.Badhran, Advocate for the appellants. Mr.Mukesh Yadav, Advocate counsel for the respondents. O R D E R
R.K.Bishnoi, JUDICIAL MEMBER:
It was alleged by complainant that on 17.01.2011 he took his wife to Primary Health Centre (PHC), Kanina at about 06.00 p.m. for delivery. Opposite Party (O.P.) No.3 Raj Kumari (staff nurse) admitted her and O.P.No.2 Kamlesh (staff nurse) took her to labour room because there were delivery pains. In the meantime, O.P.No.1-i.e. Dr. Anil Sharma also went to labour room. Before delivery no investigation was conducted and he was asked to bring some medicines from outside. Even after administering medicines there was no relief and she was crying with pain. At about 09.20 A.M. a baby girl was born, but, there was excessive bleeding. She was shifted to another room and proper treatment was not provided. He requested O.P.No.1 to provide proper care, but, to no use. Ultimately they advised to take her to Narnaul, but, by that time she had already expired at PHC, Kanina. After sometime his daughter also expired for want of proper nourishment. Initially he gave Rs.100/- to O.P.No.2 so that she may take proper care of his wife, but, she threw away and demanded more money and thereafter he gave Rs.500/- to her. Due to negligence and deficiency in service he lost his wife. So, O.Ps. be directed to pay compensation to the tune of Rs.10/- lacs.
2. O.P.Nos.1 and 2 filed joint reply and O.P.Nos.3 and 4 filed separate replies controverting his averments. It was alleged by O.P.Nos.1 and 2 that complainant was not covered by the definition of consumer and complaint was not maintainable in the present forum. His wife was admitted at 06.00 A.M., whereas duty of O.P.No.1 started at 09.00 A.M., so there was no occasion for him to be present in labour room. After coming to hospital he provided proper treatment and medicines to mother and child. There was no negligence on their part. Due precautions were taken which were required at the time of delivery. It was specifically mentioned in Departmental Enquiry report dated 11.03.2011 that there was no negligence on their part and death occurred due to excessive bleeding. Moment O.P.No.1 came to know about serious condition of patient he immediately went there and found that the same was a case of hemorrhagic shock. When there was no improvement even after proper treatment she was referred to Civil Hospital, Narnaul. Staff Nurse-Kamlesh was also directed to go with her, but, he did not think it proper take her. There was no negligence on their part. Neither complainant gave Rs.100/- nor Rs.500/- to O.P.No.2 as alleged by him. Averments to this effect were altogether false and frivolous. Patient died while on the way to Narnaul and not PHC, Kanina. This complaint was filed just to harass them and extract money. He was not having any locus standi to file this complaint.
3. It was alleged by O.P.No.3 that as per averments of complainant she was not having any role in the delivery of his wife. She only admitted her and provided bed. FIR was also got registered on the basis of wrong facts and her name was not mentioned therein. Other averments were also denied and requested to dismiss complaint.
4. O.P.No.4 also alleged that it was not having any role in the delivery and treatment. The matter was got enquired from surgeon and Gynaecologist wherein it was opined that due to sudden bleeding Smt. Monika suffered from Post Partum Hemmarge (PPH) which could occur due to less hemoglobin. As per record proper injection etc. were given to her. It was not liable to pay any compensation and the complaint be dismissed.
5. After hearing both the parties, learned District Consumer Disputes Redressal Forum, Narnaul (In short "District forum") allowed the complaint vide impugned order dated 08.07.2016 and directed O.P. Nos.1 and 2 to pay compensation of Rs.Five lakhs alongiwth 10% interest from the date of filing of the complaint till realization and Rs.5500/- as litigation charges jointly and severally.
6. Feeling aggrieved therefrom, O.P. Nos.1 and 2 have preferred this appeal.
7. Arguments heard. File perused.
8. Learned counsel for complainant vehemently argued that as per complainant he paid Rs.500/- to O.P.No.2 for the purpose of delivery. In this way he availed the services against payment and is covered by the definition of consumer. As per opinion of Hon'ble National Commission expressed in Post Graduate Institute of Medical Education & Research and Ors. Vs. Amit Sarkar 2015(3) RCR (Civil) 410 when there is deficiency in service the doctors are liable to pay compensation. Learned District Forum rightly allowed the complaint and appeal be dismissed.
9. However there is no dispute as far as the opinion of Hon'ble National Commission expressed in Post Graduate Institute of Medical Education & Research and Ors. Vs. Amit Sarkar's case (supra) is concerned, but, qua payment of bribe or gratification money by consumer was not discussed therein. In that case victim was travelling in a bus against payment which met with an accident and that is why government was held liable to pay compensation. In the present case complainant has miserably failed to show that any payment was made to the O.Ps. in connection of treatment. He has not produced any receipt or any type of document regarding payment of even single penny in connection of admission and treatment provided at PHC, Kanina. Treatment at PHC is rendered free of charge to everybody. When no payment is paid it cannot be presumed that complainant was covered by definition of consumer. These views are fortified by the opinion of Hon'ble National Commission expressed in Major Singh Vs. State of Punjab and others (2014) 4 CPJ 622. For ready reference relevant para No.6 of that judgement is reproduced as under:-
"Learned State Commission placed reliance on judgment of Hon'ble Apex Court in 1996 (1) Con. LT 1 (SC), Indian Medical Association Vs. V.P.Shantha & Ors. And held that complainant does not fall with purview of consumer. Paragraph 44 of the aforesaid judgement runs as under:-
"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:
Where services are rendered free of charge to everybody availing the said services.
Where charges are required to be paid by everybody availing the services and Where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges.
There is no difficulty in respect of first two categories. 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. 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 fall within the ambit of section 2 (1) (o) of the Act."
For ready reference opinion of Hon'ble Surpeme Court expressed in Indian Medical Association Vs. V.P.Shantha 1996 AIR (SC) 550, in relevant para No.45 of that judgement is reproduced as under:-
"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. In this context it is necessary to bear in mind that the Act has been enacted " to provided for the protection of the interest of "Consumers" in the background of the guidelines contained in the Consumer Protection Resolution passed by U.N. General Assembly on April9, 1985. These guidelines refer to "achieving or maintaining adequate protection for their population as consumers' and "encouraging high levels of ethical conduct for those engaged in the protection and distribution of goods and services to the consumers". The protection that is envisaged by the Act, is therefore, protection for consumers as a class. The word "users" (In plural), in the phrase 'potential users' in Section 2(i) (o) of the Act also gives an indication that consumers as a class are contemplated the definition of complainant" contained in Section 2(b) of the Act which includes, under clause (ii), any voluntary consumer association, and clause (b) and (c) of Section 12 which enable a complaint to be filed by any recognized consumer association or one or more consumers where there are numerous consumers, having the same interest, on behalf of or for the benefit of all consumers so interested, also lend support to the view that the Act seeks to protect the interest of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be defined to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of service rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge."
When PHC is being run by Government and treatment is provided to all the patients free of charge, so complainant is not covered by the definition of consumer. When complainant was not covered by definition of consumer, complaint was not maintainable. Learned District forum failed to take into consideration this aspect and wrongly allowed the complaint. When complainant was not consumer District Forum was not supposed to adjudicate upon this dispute because judgement without jurisdiction is nullity as opined by Hon'ble Supreme Court in Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana and others (2013) 10 SCC 136 and Hon'ble National Commission in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995. Resultantly, impugned order dated 08.07.2016 is set aside. Appeal is allowed and complaint is dismissed.
10. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.
January 30th, 2018 Mrs.Urvashi Agnihotri, Member, Addl.Bench R.K.Bishnoi, Judicial Member Addl.Bench S.K.