State Consumer Disputes Redressal Commission
The Station Commander Ex-Serviceman ... vs Bhajan Singh on 20 February, 2018
A/14/716
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. A/14/716
(Arisen out of order dated 14/02/2014 passed in complaint No.208/2011 by Addl.
District Mumbai Suburban)
The Station Commander
Ex-Serviceman Contributory
Health Scheme "ECHS" Polyclinic,
C/o. NH Powai, Kanjurmarg (W),
Mumbai - 400 708. ...........Appellant (s)
Versus
1. Bhajan Singh
B-503, Jal Vayu Vihar,
Sector "A" CHS Ltd.
Powai, Mumbai - 400 706.
2. Dr.L.H. Hiranandani Hospital
Hill Side Avenue,
Hiranandani Gardens,
Powai, Mumbai - 400 075. ............Respondent (s)
BEFORE:
Justice A.P. Bhangale PRESIDENT
Dr.S. K. Kakade MEMBER
For the Mr.Vinod Joshi, Advocate for
Appellant: appellant.
For the Mr.Akshay Deshmukh, Advocate for
Respondent: respondent No.1.
Ms.Madhura Shukla, Advocate for
respondent No.2.
ORDER
Per Justice Mr.A.P. Bhangale, Hon'ble President Mr.Vinod Joshi, Advocate present for appellant. Mr.Akshay Deshmukh, Advocate present for respondent No.1. Ms.Madhura Shukla, Advocate present for respondent No.2 with authority letter issued by Kay Legal & Associates LLP. Heard.
2. By this appeal, appellant-Station Commander, Ex-Serviceman Contributory Health Scheme questioned validity and legality of the Page 1 of 7 A/14/716 impugned judgment and award dated 14/02/2014 passed by the Learned Addl. District Forum, Mumbai Suburban in consumer complaint No.208/2011.
3. Briefly stated facts are that complainant preferred complaint under Section 12 of Consumer Protection Act, 1986 to get compensation from opponents with allegation of deficiency in service on the part of opponents. Briefly stated opponent No.1 had floated Ex-Servicemen Contributory Health Scheme (ECHS) which provide for socio-economic need of persons who retired from Army. ECHS is a public funded scheme like medical insurance providing medical benefits under the scheme to the retired employees subject to their contribution of lumpsum amount as consideration in the ECHS Medi-Care Scheme as a member thereof. One- time subscription rates have been provided as contribution to the scheme. It is not in dispute that complainant was/is a member of ECHS having Membership Card entitled to medical facility under the said scheme.
4. According to complainant he had contributed his subscription to enjoy the benefits under the scheme. Wife of complainant namely Mrs.Harbhajan Kaur was suffering from acute pains in her both knees and was unable to walk freely. On medical advice, she was required to undergo total knee replacement of both legs. Therefore, as a member of ECHS, facility was availed of for knee replacement surgery as wife of complainant admitted in Dr.L.H. Hiranandani Hospital, which is recognised under the scheme and was discharged on 17/01/2008 which incurred expenditure of Rs.4,26,740/-. When complainant claimed benefit under the scheme, he was informed by opponent No.1 that complainant will have to bear additional charges in respect of surgical operation and that complainant had liberty to carry out surgery in INS Ashwini without additional costs. Thus, opponent No.1 decided to charge additional Page 2 of 7 A/14/716 amount of Rs.2,76,740/-. Thus, according to complainant he was entitled to claim entire expenditure which he incurred and alleged that there was unfair trade practice and/or deficiency in service on the part of opponents in the matter of not sanctioning payment of entire expenditure required for knee surgery as opponents only paid sum of Rs.2,20,000/- and not the entire expenditure. The complainant therefore claimed remaining amount of Rs.2,76,740/- to be refunded to the complainant along with interest @ 18% p.a. and also compensation on the ground of mental agony and litigation costs.
5. Learned District Forum held that the complainant is entitled to surgery charges paid by him as also compensation on the ground that opponents had indulged in deficiency in service and unfair trade practice. Thus, complaint was allowed accordingly directing the opponents to pay jointly and severally a sum of Rs.2,26,740/- with 10% p.a. interest on the amount from the date of filing of complaint till realisation and also sum of Rs.50,000/- towards compensation for mental agony and Rs.10,000/- towards costs of complaint.
6. We are informed that opponent No.2-Dr.L.H. Hiranandani Hospital has already complied with the award. Therefore, opponent No.2 sought discharge from the case.
7. On behalf of appellant it is contended that judgment and award suffered from want of jurisdiction to decide the complaint. Reference is made to two rulings :-
(i) Maharshi Dayanand University V/s. Surjeet Kaur, reported in 2010 CJ (SC) 1768, whereby it appears that Hon'ble Supreme Court of India was considering the correctness of the order passed by Hon'ble National Commission in the dispute in which Page 3 of 7 A/14/716 appellant-University was refusing to confer degree of B.Ed. upon complainant-Surjeet Kaur. In that case, Hon'ble Supreme Court of India observed that the Board was not a 'service provider' nor converted the examinee into a 'consumer' who can make a complaint under the Consumer Protection Act, 1986. Thus, dispute between the Board and a student was not considered as consumer dispute so as to lodge a complaint under the Consumer Protection Act, 1986 against the Board.
(ii) Dr.Jagmittar Sain Bhagat V/s. Dir. Health Services, Haryana & Ors., reported in 2013(7) CPSC 75. In this ruling, Hon'ble Supreme Court was considering question raised by the complainant in that case about retiring benefits claimed by the Government servant. It was held that it was a service matter of a Government servant which cannot be dealt with by any of the Forum in any hierarchy under the Consumer Protection Act, 1986. The Apex Court considered definition of words 'complainant' and 'consumer' as well as 'deficiency' and 'service' to hold that the Government servant cannot raise any dispute regarding his service condition or for payment of gratuity or GPF or any of his retiral benefits before the Consumer Fora under the Consumer Protection Act, 1986 as the Government servant does not fall under the definition of 'consumer' within meaning of Section 2(1)(d)(ii) of Consumer Protection Act, 1986. Such Government servants are entitled to claim their retiral benefits strictly in accordance with their service conditions and regulations or statutory rules framed for that purpose. The appropriate forum, for redressal of their grievances to claim retiral benefits may be the State Administrative Tribunal, if any, or Civil Court but certainly not in the Consumer Fora.Page 4 of 7
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8. Learned Advocate for complainant/respondent No.1 argued that these rulings are not applicable as in the present case, complainant was claiming benefit as member of Ex-servicemen Contributory Health Scheme (ECHS) with aim to provide comprehensive and quality medical care to the beneficiaries and their authorised dependants. Furthermore, the scheme required one-time subscription to become a member or beneficiary under the scheme for life and accordingly, complainant had paid contribution as one-time subscription for facilities under said scheme to be availed of by pensioners and their family members depending upon them. Since the impugned order and judgment is complied with by respondent No.2- Hospital by payment of award and that rulings canvassed before the State Commission are not attracted in the facts and circumstances of the present case, it is urged that no interference be made in exercise of appellate jurisdiction by the State Commission.
9. While considering rival submissions, we cannot overlook the provisions cited in the Armed Forces Tribunal Act, 2007 as according to Learned Advocate for appellant under Section 14 & 15 of the said Act; the Tribunal established under the Act shall exercise jurisdiction, powers and authority to decide the case under the said Act. The Armed Forces Tribunal Act, 2007 provided for adjudication or trial by Armed Forces Tribunal of disputes and complaints with respect to commission, appointments, enrolment and conditions of service in respect of persons subject to the Army Act, 1950, the Navy Act, 1957 and the Air Force Act 1950 and also to provide for appeals arising out of orders, findings or sentences of court martial held under the said Acts and for matters connected therewith or incidental thereto. Another submission advanced about jurisdiction, powers and authority of the Administrative Tribunal. The Administrative Tribunal Act, 1985 under Section 15 provided for jurisdiction, powers and authority of the said Administrative Tribunal to Page 5 of 7 A/14/716 decide the matters in connection with recruitment to any civil service of the State or to civil force and such other service matters concerning persons appointed to any civil service or civil post or pertaining to affairs of the State.
10. None of the provisions cited excluded jurisdiction of the Consumer Fora established under the Consumer Protection Act, 1986 to deal with unfair trade practice or deficiency in service. We cannot overlook legal position as stated in Section 3 of the Consumer Protection Act, 1986 that the Consumer Protection Act, 1986 is not in derogation of any other law. The Legislature clarified that the provisions of the Consumer Protection Act, 1986 shall be in addition to and not in derogation of the provisions of any other law for the time being in force. This aspect it appears was not drawn nor discussed in the rulings cited across the Bar by Learned Advocate for appellant and referred by us above nor there is any provision to exclude the authority under the Consumer Protection Act, 1986, particularly, Consumer Fora to deal with the consumer dispute raised by any consumer under the Consumer Protection Act, 1986. Definition of term 'consumer' under Section 2(1)(d) of Consumer Protection Act, 1986 particularly wording in respect of availing of or hiring of any service for consideration paid or promised or partly paid and partly promised. Thus, in the facts and circumstances brought before us, a pensioner had made one-time subscription to avail services under the Ex-servicemen Contributory Health Scheme (ECHS) floated by the Government. In such case, when the service is availed for consideration which is already paid as member for life under the scheme, the person who availed of service for consideration would definitely fall within definition of term "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 and he can certainly raise consumer dispute when he allege unfair trade practice or deficiency in service agreed to be provided under the scheme. We Page 6 of 7 A/14/716 therefore, of the view that the Learned District Forum entertained the complaint in accordance with the provisions of Consumer Protection Act, 1986 and before the Learned District Forum there was no preliminary objection before the complaint was entertained to question its jurisdiction.
11. At this stage, the Learned Advocate for the appellant brought to our attention that at page-10 of the judgment, the Learned District Forum referred to his oral argument and reference to the case of Jagmittar Sain Bhagat V/s. Dir. Health Services, Haryana & Ors., the same case which we have referred above. In our view, Hon'ble Supreme Court was not called upon to decide implication of Section 3 of Consumer Protection Act, 1986 nor the same was discussed. Said ruling was in respect of Government servant who cannot approach the Consumer Fora for any of the retiral benefits. As such retiral benefits are conferred in accordance with the service conditions and regulations or statutory rules. We have therefore already observed that those rulings are not attracted in the facts and circumstances of the consumer dispute raised in the present case by the pensioner availing of health service for consideration of one-time subscription amount as member. That being so, no ground is made out for interference in the impugned judgment and award. Appeal therefore stands dismissed with costs quantified in the sum of Rs.10,000/- (Rupees Ten Thousand only) payable by appellant to complainant/respondent No.1. Copies of the order be furnished to the parties.
Pronounced Dated 20th February 2018.
[ Justice A.P. Bhangale ] PRESIDENT [ Dr.S. K. Kakade ] MEMBER dd.
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