National Consumer Disputes Redressal
R.K. Varma vs Director / Controller, Kalyani ... on 25 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2473 OF 2012 With IA/5116/2013(For recalling case record) IA/6301/2013(For directions) (From the order dated 09-03-2012 in Appeal No. 3136/2007 of the State Consumer Disputes Redressal Commission, Haryana) R.K. VARMA R/o House no-164,Sector-23 Gurgoan - 122017 Haryana Petitioner/Complainant Versus 1. DIRECTOR / CONTROLLER, KALYANI (ESCORTS) & 2 ORS. Kalyani Hospital, M.G Road, Gurgaon, Haryana 2. The Director/ Controller Metro Multi Specialty Hospital Noida, Sector-12, Noida, Haryana 3. The New India Assurance Co. 386-387, Jacobpura Old, Railway Road Gurgaon Policy, No-354100/46/05/32/00000358 Respondents/Opposite Parties BEFORE: HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B C. GUPTA, MEMBER For the Petitioner : In person For Respondent No. 1 : Ms. M. Malika Chaudhari, advocate For Respondent No. 2 : Mr. Anjum Javed, advocate For Respondent No. 3 : Mr. Navdeep Singh, advocate PRONOUNCED ON 25th OCTOBER, 2013 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against impugned order dated 09-03-2012 passed by the learned State Consumer Disputes Redressal Commission, Haryana (in short, the State Commission) in Appeal No. 3136 of 2007 The Director, Metro Multi Speciality Hospital Vs. R.K. Verma & Ors., by which while allowing the appeal, order of the District Forum allowing the complaint was set aside.
2. Brief facts of the case are that complainant/petitioners father Sultan Singh was admitted in Kalyani Hospital (Escorts) on 11-11-2006 and was diagnosed heart attack. He was put on temporary pace-maker. Complainant was advised to shift his father to some better equipped hospital.
Complainant found a seat in hospital of Opposite Party No. 2/respondent no. 2. Ambulance was sent by Opposite Party No. 2 to pick up the patient but it was without pace maker so another person was sent from Opposite Party No. 2 hospital to Gurgaon along with pace-maker but unfortunately that pace-maker was not functioning properly. Doctors of Opposite Party No. 1/Respondent No. 1 hospital refused to lend pace-maker.
In such circumstances, ambulance left without taking the patient and after couple of hours complainants father died. Alleging deficiency on the part of Opposite Parties, complainant filed complaint before District Forum. Opposite Party No. 1 & 2 did not file written statement but Opposite Party No. 3 insurance company who covered risk of hospital and doctors filed written statement and submitted that policy does not cover dispute relating to lending of pace-maker and prayed for dismissal of complaint. Learned District Forum after hearing the parties, allowed complaint partly and directed Opposite Party No. 2 to pay Rs. One lakh as damages to the complainant along with 6% p.a. interest and further awarded Rs.3,000/- as cost of litigation. Appeal filed by Opposite Party No. 2 was allowed by learned State Commission vide impugned order, against which this revision petition has been filed.
3. Heard petitioner in person and learned Counsel for the respondents and perused record.
4. Petitioner submitted that on account of negligence of Respondent No. 2, petitioners father could not be saved and learned District Forum rightly allowed complaint but learned State Commission has committed error in allowing appeal, hence revision petition be allowed and impugned order be set aside. On the other hand, learned counsel for Respondent No. 2 submitted that order passed by learned State Commission is in accordance with Law, hence revision petition be dismissed. Learned counsel for Respondent No. 1 & 3 submitted that complaint has not been allowed against them and petitioner has not filed appeal against the order of the District Forum, hence they are not liable for any compensation.
5. District Forum fastened liability on Respondent No. 2 as ambulance of Respondent No. 2 was without any pace-maker. Petitioner, during course of arguments, submitted that ambulance was required to be equipped with pace-maker, which could have been put while taking patient to the hospital and his father could have been saved and thus Opposite Party no. 2 committed deficiency. On the other hand, learned counsel for Respondent No. 2 submitted that petitioner does not fall within the purview of consumer under Consumer Protection Act and further submitted that it was not necessary that ambulance should have been equipped with pace-maker and further submitted that pace-maker could not have been inserted in ambulance during journey.
6. Petitioners main allegation is that ambulance called from Opposite Party No. 2 was not equipped with pace-maker. Petitioner has nowhere mentioned in the complaint that petitioner hired services of Opposite Party No. 2 for consideration which had already been paid or promised to be paid. Petitioner falls within the purview of consumer under Section 2(d) (ii) only when he hires or avails off any service for consideration which has been paid or promised. We do not find any averment in the complaint regarding payment or promise for payment of any consideration for the services of Opposite Party No. 2 and in such circumstances petitioner does not fall within purview of consumer under Consumer Protection Act and revision petition is liable to be dismissed on that ground alone.
7. Learned State Commission has rightly observed that no evidence has been led by the petitioner that every ambulance must be equipped with pace-maker. It was further rightly observed that pace-maker cannot be inserted in ambulance during road journey from one hospital to another. Learned State Commission has not committed any illegality, irregularity or jurisdictional error in allowing appeal and revision petition is liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER ..
( DR. B.C. GUPTA) MEMBER aj