State Consumer Disputes Redressal Commission
Rupinderjit Kaur vs Balbir Singh on 3 December, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1198 of 2014
Date of institution: 27.8.2014
Date of Decision: 3.12.2015
Rupinderjit Kaur @ Rupinder Kaur w/o Sh. Udham Chand, presently
posted as Medical Officer, ESI Dispensary No. 10, Dhandhari Kalan, Distt.
Ludhiana.
Appellant/Op No. 2
Versus
1. Balbir Singh s/o Sh. Mukhtiar Singh, resident of Rampur Colony,
Village Rampur, Tehsil Payal, Distt. Ludhiana.
2. Gursewak Singh, minor son of Sh. Gurdeep Singh through his
maternal grand father and guardian Balbir Singh s/o Sh. Mukhtiar
Singh, resident of Rampur Colony, Village Rampur, Tehsil Payal,
Distt. Ludhiana.
Respondents No.1&2/Complainants
3. Lady Health Worker (Asha Worker), Pritam Kaur w/o Sh. Charan
Singh, resident of Village Dayala Basti, Tehsil Payal, Distt. Ludhiana.
4. State of Punjab through the Secretary, Department of Health &
Family Welfare, 624, 6th Floor, Mini Secretariat, Sector-9,
Chandigarh.
Respondents No.3&4/Op Nos. 1&3
First Appeal against the order dated 21.2.2014
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
First Appeal No. 1198 of 2014 2
Present:-
For the appellant : Sh. H.S. Saini, Advocate
For respondents No.1, 2 &4: Ex.-parte.
For respondent No.3 : Sh. Munish Goel, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op No.2 (hereinafter referred as "Op No.2") has filed the present appeal against the order dated 21.2.2014 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No. 114 dated 13.2.2012 vide which the complaint filed by respondents No.1&2/complainants(hereinafter referred as complainants) was allowed with a direction to Op Nos. 1 & 2 to pay Rs. 50,000/- on account of compensation and Rs. 5,000/- as litigation expenses. It was further ordered to pay this amount within a period of 30 days.
Misc. Application No. 1837 of 2014 for delay
2. Alongwith the appeal, an application under Section 5 of the Limitation Act has been filed to condone the delay of 129 days in filing the appeal. In the application, it has been stated that the applicant/appellant was posted as a Medical Officer in a Primary Health Centre at Rampur, District Ludhiana. The District Forum had passed the order on 21.2.2014. The applicant waited for quite some time for receiving the certified copy of the order but it was not received. On personal enquiry, it was stated by the Registry of the First Appeal No. 1198 of 2014 3 District Forum that the copy will be mailed to the applicant as per practice. Certified copy of the impugned order was sent by the Registry at PHC, Payal, where she was temporarily posted in the month of November, 2011 and thereafter in December, 2011, she was transferred to Civil Hospital, Khanna and then further transferred to ESI Dispensary, Dhandhari Kalan, Ludhiana in June, 2012. Copy sent by the Forum was received back with the remarks that the applicant had transferred from that place. Then the applicant approached the Forum on 26.6.2014 stating that she had not received the certified copy of the order and requested the District Forum to kindly supply the certified copy of the impugned order and it was supplied on 10.7.2014 and after going through the order, taking the record from the counsel at the Lower Court, she approached the Advocate at Chandigarh, who drafted the appeal and then filed the same. In that process, there was delay of 129 days in filing the appeal, which is not intentional but because of the fact that the certified copy of the order was received only on 10.7.2014 and on 26.8.2014, appeal was filed. After deducting the period of 30 days, the actual delay is just 16 days, which may kindly be condoned.
3. Smt. Bhupinder Kaur, Advocate had filed memo of appearance on behalf of respondents No. 1 & 2 but after that she did not appear and did not file any power of attorney on behalf of respondents No. 1 & 2. Respondent No. 4 did not appear after service, therefore, respondent No. 4 was proceeded ex-parte whereas Sh. Munish Goel, Advocate was appointed as a Legal Aid Counsel on behalf of respondent No. 3. No reply was filed by First Appeal No. 1198 of 2014 4 respondent No. 3. Basically respondent No. 3 was co-opposite party before the District Forum. In fact respondents No. 1 & 2 were the contesting party and they did not appear. The counsel for the applicant during the course of arguments has brought to the notice of this Commission the envelope addressed by the District Forum in the name of the applicant on her address at PHC Rampur sent on 21.2.2014 and it was received back with the remarks that Rupinder Kaur had transferred to some other place. She has further placed on the record, the application dated 26.6.2014 addressed to the President, DCDRF, Ludhiana stating that she did not receive the free certified copy of the District Forum order and that the same be delivered to her and the same was delivered in person to the applicant on 10.7.2014 and on 26.8.2014, the appeal was filed, therefore, actually there is delay of 16 days.
4. It has been further contended by the counsel for the applicant that the case of the applicant/appellant is good on merits because she was working as a Doctor in Government Hospital where no charges were taken for the treatment of the deceased, therefore, the complainants/legal heirs of the deceased does not come within the definition of the 'consumer'. Keeping in view this fact and the fact that actually there is delay of 16 days from the receipt of the certified copy of the order because the free certified copy sent by the DCDRF, Ludhiana was not delivered and received back to the District Forum. In these circumstances, it is expedient that the matter should be decided on merits, accordingly, the delay of 129 days in filing the appeal is hereby condoned.
First Appeal No. 1198 of 2014 5MAIN CASE
5. Complainants filed a complaint against Ops on the averments that complainant No. 1 is father of deceased Rajwinder Kaur wife of Shri Gurdeep Singh and complainant No. 2 is son of the deceased. It was averred in the complaint that Rajwinder Kaur was married with Gurdeep Singh in March, 2010. After marriage, she was on the family way and was brought by complainant No. 1 with Op No. 2, where she was posted in PHC, Rampur, Tehsil Payal for the last one year. Card was prepared and she was regularly being checked from Op No. 2, who always assured that she was normal and complainant No. 1 need not to worry and that PHC remains open for 24 hours. On 24.9.2011, Rajwinder Kaur was having pain at 2-2½ a.m.. She alongwith respondent No. 3 approached respondent No. 2 for the treatment. She was residing at distance of 1 K.M. from PHC. Complainant No. 1 immediately reached Op No. 2 and found that office of Op No. 2 was lying locked. Thereafter, complainant No. 1 decided to take Rajwinder Kaur to some other hospital whereas OP No. 3 insisted for delivery from OP No. 2 and that she will call for the Doctor within 10-15 minutes as Rajwinder Kaur was being checked regularly by this Doctor. This Op No. 3 alongwith Nurse Neetu Bala, who was working with Op No. 2 came and opened the hospital. They took the daughter of the complainant to Labour Room. Complainant No. 2 was born. There was no other Doctor in PHC, Rampur to meet the emergency. Whereas Dr. Rupinder Kaur did not come over telephone despite the fact that she was on duty for 24 hours. On account of delay in opening the hospital and non-reaching the Doctor First Appeal No. 1198 of 2014 6 in hospital, the position of the patient Rajwinder Kaur became critical and after the birth of complainant No. 2 bleeding of Rajwinder Kaur did not stop despite giving injection by the Staff Nurse. Then the Staff Nurse asked the complainant to take the patient to Civil Hospital, Ludhiana. Nurse arranged for the Ambulance and she sent patient Rajwinder Kaur alongwith family Members of complainant No. 1 to Civil Hospital, Ludhiana. When she was taken to Civil Hospital, Ludhiana, she was declared as brought dead. Complainant No. 1 alongwith Panchayat approached Dr. Rupinder Kaur for redressal of his grievances instead of redressing his grievances, she insulted the complainant and the Panchayat Members. The incident was also reported in 'Daily Jagbani' on 25.9.2011. There was gross negligence and deficiency in medical care/services by the Ops towards the deceased. Accordingly, the complaint was filed before the District Forum with a direction to the Ops to pay compensation of Rs. 18 lacs alongwith interest @ 18% and also pay Rs. 22,000/- as litigation expenses.
6. Complaint was contested by Ops No. 2 & 3 whereas Op No. 1 was ex-parte before the District Forum. Op No. 2 in her written version had taken the preliminary objections that the complaint has been filed against this Op, just to harass and extract the money because the patient was never examined by this Op prior to 21.9.2011; complainants had not approached the Forum with clean hands and were guilty of suppression of material facts. The patient was not on regular ante natal check up from this Op; there was no deficiency in rendering any service by this Op to the patient. In fact First Appeal No. 1198 of 2014 7 PHC, Rampur is located in village and was not equipped with facility wherein caesarean operation can be conducted. This Op is only holder of MBBS and is not expert in Gynaecology. She was appointed General Medical Officer vide letter dated 7.3.2011 and had joined the duties on 22.3.2011. The patient had came to her for the first time on 21.9.2011 and after examining her, she was referred to Civil Hospital, Khanna/Samrala as patient was a high risk patient and after that the patient did not came to her for examination; complainant No. 1 had no locus-standi to file this complaint and that the complaint was bad for non-joinder of necessary party as Nurse Neetu Bala was a necessary party. On merits, the averments as stated in the preliminary objections were reiterated. It was reiterated that the patient was checked by her only on 21.9.2011 and on that day, she was referred to Civil Hospital, Samrala/Khanna. It was admitted that PHC used to open for 24 hours to provide services. It was denied that on 24.9.2011, the patient was having pain at 2-2½ a.m. or that she had approached Op No. 3. It was denied that respondent No. 2 was at the distance of 1 Km. from the residence of complainant No. 1. It was denied that complainant No. 1 had come to bicycle to PHC or that it was found lying locked. It was denied for want of knowledge that Op No. 3 insisted to effect the delivery from OP No. 2. It was denied that after 1-½ hours, OP No. 3 alongwith Nurse Neetu Bala, who was working with Op No. 2 had come and opened the hospital and took the patient to the labour room. It was denied that Op No. 3 had called Op No. 2 on telephone or that she did not come despite the fact that she was on duty for 24 hours. First Appeal No. 1198 of 2014 8 There was no accommodation provided by the Punjab State Health Systems Corporation to the Doctor in village Rampur and she was only Doctor and was put on 24 hours duty. It was denied that during the delivery by Nurse Neetu Bala the condition of the patient became critical or that she was referred by Op No. 3 to Civil Hospital, Ludhiana. She does not have any knowledge what happened at Civil Hospital, Ludhiana. It was denied that complainant No. 2 was handicapped. No doubt that new item was published in Jagbani but it seemed that complainant got it published to gain sympathy. It was denied that there was gross negligence or deficiency in service in medical care/services towards patient Rajwinder Kaur. It was denied that the complainant was entitled for compensation of Rs. 18 lacs alongwith interest @ 18%.
7. Respondent No. 3 in its written version had taken the preliminary objections that the complaint was not maintainable as no consideration whatsoever was paid by complainant No. 1 or deceased, therefore, she does not fall within the definition of the consumer and that there was no negligence on the part of this Op. She did her best to save the patient and was referred to Civil Hospital, Ludhiana, therefore, complaint was not maintainable against Op No. 3. On merits, it was submitted that when Op No. 3 came to know about the labour pain to the patient, she immediately reached and told that she was about to deliver the child. She also requested them to call for an ambulance as patient was suffering from severe labour pain. It was denied that she assured the complainant that she will make arrangement for delivery. It is unfortunate that the patient First Appeal No. 1198 of 2014 9 died on her way to Civil Hospital, Ludhiana but there was no negligence or deficiency in medical care/services on the part of this Op. Complaint was without merit and it be dismissed.
8. The parties were allowed by the learned District Forum to lead their evidence.
9. In support of his allegations, the complainant had tendered into evidence affidavit of Balbir Singh Ex. CA, affidavit of Manjit Kaur Ex. CB, wedding invitation Ex. C-1, treatment card Ex. C- 2, birth certificate Ex. C-3, scan report Ex. C-3/1, 4, news cuttings Ex. C-5, 6, death certificate Ex. C-7, receipt Ex. C-8 and affidavit of Manjit Kaur Ex. CW-2/A, affidavit of Neetu Bala Ex. CW-3, affidavit of Rajinder Singh, Ex-Sarpanch Ex. CW-4. On the other hand, Op No. 2 had tendered into evidence her affidavit Ex. RA-2, appointment letter Ex. R-1, letter of Govt. Ex. R-2, register entry Ex. R-3, affidavit of Pritam Kaur Ex. RA-3.
10. After going through the allegations in the complaint, written versions filed by OPs, evidence and documents brought on the record, the complaint was allowed as referred above.
11. Aggrieved with the order passed by the learned District Forum, the appellant/OP No. 2 has filed the present appeal.
12. We have heard the learned counsel for the parties.
13. At the outset, counsel for the appellant/Op No. 2 has contended that the complainants do not fall under the definition of the consumer. A specific plea was taken by OP No. 3 in the written version that complainants did not pay any consideration whatsoever for treatment of the patient/deceased, therefore, the complainants do First Appeal No. 1198 of 2014 10 not fall within the definition of the consumer. No doubt, the District Forum had referred the objection of Op No. 3 in para No. 5 of the order but while discussing the merits of the complaint, no findings were recorded how the complainants come within the definition of the consumer, therefore, it is necessary first to deal with the point whether the complainants falls within the definition of the consumer. As is clear from the definition of the consumer as defined under Section 2(1)(d)(i)&(ii) of the Act, the purchase of goods or services should be for consideration, therefore, we have to see whether any payment was made by the complainants for the treatment of the patient to the Ops. In case we go through the complaint, complaint is silent with regard to payment of any consideration for the treatment of the patient to Ops. In case, we go through the history of the case the patient had been going to Ops PHC for pre-natal check up. On 24.9.2011, the patient was admitted in the PHC and after delivery, the condition of the patient became critical due to continuous bleedings from the person of the patient. She was referred to Civil Hospital, Ludhiana but she died on the way to hospital. Therefore, complaint is silent with regard to any payment or any consideration paid for after availing these services. However, on the record the complainants have placed one receipt dated 23.9.2011 of PHC Payal vide which some payment regarding Lab Test has been given. No other document with regard to payment of any amount with regard to the treatment with Ops has been placed on the record. The complaint further reveals that the complainant was first checked by Op No. 2 on 21.9.2011 and on that day after checking/seeing the condition of the First Appeal No. 1198 of 2014 11 patient, she had referred her to Civil Hospital, Khanna/Samrala vide entry in the Register Ex. R-3 and after that she had approached PHC, Rampur on 24.9.2011. On 24.9.2011, no payment was deposited by the complainants for any treatment to the patient. Even the patient was not attended by Op No. 2. The patient was in severe labour pain, she was attended by Op No. 3 alongwith one Nurse Neetu Bala, who is not party to the complaint. Delivery was effected but they were unable to stop the bleeding. The patient was referred to Civil Hospital, Ludhiana and on the way, the patient had died. Counsel for the appellant/Op No. 2 has referred to First Appeal No. 6 of 2008 decided by this Commission in which after relying upon the judgment of the Hon'ble Supreme Court in "Indian Medical Association Vs. V.P. Shantha & Ors.", 1996(1) Consumer Law Today-1(SC) and in para No. 43, it was observed as under:-
"43. 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:-
(i) Where services are rendered free of charge to everybody availing of the said services.
(ii) where charges are required to be paid by everybody availing of the services and
(iii) where charges are required to be paid by persons availing of services but certain categories of persons who cannot afford to pay are rendered service free of charges. First Appeal No. 1198 of 2014 12
There is no difficulty in respect of the first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing of 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 falls within the ambit of Section 2(1)(o) of the Act."
and after relying upon this judgment, this Commission in case "Dr. Jasbir Singh Sandhu Vs. Dharam Singh & Ors." F.A. No. 390 of 2005, decided on 31.8.2010 had dismissed the complaint as the complainant did not fall under the definition of the consumer as defined under the Act and its revision petition was dismissed by the Hon'ble National Commission in Revision Petition No. 4734 of 2012 and the view taken by the State Commission was upheld. The Hon'ble National Commission further relied upon I (1992) CPJ 259 (NC) "Consumer Unity & Trust Society, Jaipur Vs. The State of First Appeal No. 1198 of 2014 13 Rajasthan & Ors." observed that a person, who avails the facility of medical treatment in Government hospital is not a consumer and no complaint is maintainable under the CP Act.
14. None was present on behalf of the complaints/respondents because they did not choose to contest the appeal. Since the complainant did not disclose whether any consideration was paid by the complainant for getting medical treatment of the patient i.e. Rajwinder Kaur daughter of complainant No. 1 and mother of complainant No. 2, they have filed just Lab Test receipt and that from PHC, Payal whereas no receipt of any charge taken by PHC, Rampur, where Op No. 2 was working has been placed on the record, therefore, the entire treatment given by employees of the PHC Rampur was free of cost, therefore, the complainant does not fall within the definition of the consumer as defined under Section 2(1)(d)(ii) in view of the judgments of this State Commission and the Hon'ble National Commission referred above.
15. In view of the above, in case the complainants are not consumer under Act then we are not supposed to give findings on merits. Whereas the complainants can avail their remedy before any other appropriate Forum for the damages, if any, they incurred on account of negligence/deficiency in service on the part of Op No. 2.
16. In view of the above, we accept the appeal. Impugned order is set-aside holding that the complainants are not consumer as defined under the Act. Consequently, the complaint filed by the complainants is dismissed without prejudice to the rights of the First Appeal No. 1198 of 2014 14 complainants to avail their remedy for any action against Ops before any other appropriate Forum.
17. The appellant had deposited an amount of Rs. 25,000/- and Rs. 5,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
18. The arguments in this appeal were heard on 27.11.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member December 3, 2015. (Surinder Pal Kaur) as Member