State Consumer Disputes Redressal Commission
Dr.Shankerlal Lahoti, Mbbs, vs Naseemunnisa Begum D/O Md.Taha Khan on 2 February, 2011
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.1 OF 2011 AGAINST C.C.NO.17 OF 2009 DISTRICT FORUM ADILABAD Between Dr.Shankerlal Lahoti, MBBS, Govt. Civil Hospital, Chennur Mandal Adilabad District Appellant/opposite party no.1 A N D 1. Naseemunnisa Begum D/o Md.Taha Khan Aged 15 years, Occ: Student R/o Near Gachi Masjid, Chennur Mandal Adilabad Dist. Rep. by natural father MD.Taha Khan aged 55 years, Occ: Labour R/o Near Gachi Masjid Chennur Mandal, Adilabad Dist. Respondent/complainant 2. Kalavathi Nurse Govt. Civil Hospital, Chennur Mandal Adilabad. 3. Government of Andhra Pradesh Rep. by DMHO, Adilabad 4. The Professional Protection & Welfare Scheme of Indian Medical Association A.P.State Branch, Hyderabad. Rep. by Secretary, IMA Building, 2nd Floor Esamia Bazar, Hyderabad-027. Respondents/opposite parties Counsel for the appellant Sri Nissaruddin Ahmed Jedi Counsel for the Respondent No.1 Sri V.Gourisankara Rao Counsel for the Respondent No.4 Sri B.Ravishankar QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE SECOND DAY OF FEBRUARY TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The first respondent has filed the complaint seeking compensation of `5,00,000/- against the appellant and the second respondent and the third respondent on the premise of medical negligence.
2. The first respondent while she was attending her class on 17.09.2005 suddenly suffered from cold and fever and the school authorities had taken her to the Government Hospital, Chennur where the appellant having examined her prescribed some medicine and instructed the nurse, the second respondent to administer an injection. The first respondent developed swelling at her arm where the injection was administered and on 19.09.2005 the first respondents mother taken her to the appellant who opined the problem due to mosquito bite and referred her to Dr.Padmaja at Mancherial. As there was no relief to the first respondent, her mother brought the treatment administered to his daughter to the notice of the third respondent who referred her to the NIMS, Hyderabad and the appellant assured the parents of the first respondent that he would bear expenses for her treatment at NIMS.
3. The first respondent was treated at NIMS for a period of two months and also at Osmania General Hospital and New Life Hospital. The doctors of Osmania General Hospital and New Life Hospital opined that the first respondent opined that she suffered with abscess resulting in Cellulites with stuffed out skin at deltoid region. The doctors of New Life Hospital opined that the Osmania General Hospital requires skin grafting. On complaint of the father of the first respondent, the Police Chennur registered a case in crime number 8 of 2006 against the appellant and the second respondent. The first respondents father incurred expenditure of `65,000/- for her treatment. The first respondent got issued notice dated 10.09.2007 through her advocate to the appellant and the second respondent and the third respondent.
4. The appellant, the second respondent and the third respondent resisted the claim by filing written version with the averments that the first respondent is not a complainant or the consumer within the meaning of the Sections 2(1)(c) and (o) of the Consumer Protection Act. The appellant is a doctor at the Government Hospital and the treatment was provided to the first respondent free of cost. The appellant did not prescribe any medicine to be injected to the first respondent. The second respondent is an Auxiliary Nurse and Midwife and she is assigned the job of visiting the villagers, identifying the pregnant and provide them necessary medicines.
5. The third respondent resisted the claim contending there was no negligence on the part of the appellant and when there is wanton negligence on the part of the appellant, the third respondent is not liable to pay any amount to the first respondent.
6. The first respondent has filed her affidavit and ExA1 to A24. The appellant has filed his affidavit and the documents marked as ExB1 to B3.
7. The District Forum allowed the complaint on the premise that as a consequence to the treatment administered by the appellant the first respondent developed the complications and as such the appellant is liable to pay compensation to the first respondent.
8. The first opposite party has filed the appeal contending that he administered treatment to the first respondent on 17.09.2005 and the complainant was admitted on 4.022005 and as such the complaint was not filed within the period of limitation. It is contended that there is no evidence of communication of the notice dated 10-07-2009 to the appellant. Free service rendered at the Government Hospital is not a service within the meaning of Section 2(1)(o) of the Consumer Protection Act. No document shows the name of the appellant in receipt of consideration. On dismissal of complaint against the second respondent who administered the injection to the first respondent, the complaint is not maintainable. Quotations issued by a private hospital cannot be treated as bills. The appellant is a qualified doctor. No expert opinion was adduced as evidence. The criminal case in Cr.no.8 of 2006 and the appeal in Cr.R.P. preferred by the first respondent ended in acquittal of the appellant.
9. At the time of hearing, the learned counsel for the appellant submitted that the treatment administered to the first respondent by the appellant is not amenable to the jurisdiction of the District Forum and as such the appeal can be allowed. He represented that the first respondent has no objection for allowing the appeal. The learned counsel for the first respondent agreed for allowing the appeal at the first instance and when the counsel for the appellant insisted on allowing the appeal against the fourth respondent also, the counsel for the first respondent had retraced his statement and he has submitted that the appeal be heard on merits.
10. Heard the counsel for the appellant as also the counsel for the first respondent.
11. The points for consideration are:
1. Whether the appellant treated the first respondent free of charge?
2.
Whether there was no negligence on the part of the appellant in administering the treatment to the first respondent?
3. Whether the complaint is not filed within the period of limitation?
4. To what relief?
12. POINT NO.1 to 3: The first respondent was a school going girl and on 17.09.2005 while she was attending her classes, suddenly she developed cold and her body temperature began to run high. The school authorities had taken her to the Government Hospital, Chennur where the appellant examined her and prescribed some medicine. There is dispute between the appellant and the first respondent in regard to the administration of the injection. We will come to the point in the next paragraphs of the order. The appellant has stated that he was working with the Government Hospital and treated the first respondent free of charge.
13. Section 2(1)(d) and (o) of the Consumer Protection Act gives us the description of the person who is a consumer and the provisions of the service relating to certain fields. The provision of law reads as follows:
2. (1) (d) consumer means any person who,
(i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation.For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment xxx xxx xxx
(o) Service means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
14. In Kishori lal vs E.S.I. Corporation II (2007) CPJ 25 (SC), the Honble Supreme Court dealt with the jurisdictional aspect of Consumer Forum vis--vis the dispute relating to the medical negligence, by making reference to its earlier decision in Indian Medical Association Vs V.P.Shantha.
8. A 3-Judge Bench of this Court in Indian Medical Association (supra) has extensively considered the provisions of the CP Act and particularly what shall be a service within the meaning of Section 2(1)(o) of the said Act. The Court was considering whether the service rendered by the doctors would fall within the purview of the CP Act, it being a service rendered for the charges; and whether the patients, who are treated by the doctors, are consumers as defined in Section 2(1)(d) of the CP Act. The Court said that the definition of service in Section 2(1)(o) can be split into three parts : the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, whereas the exclusionary part excludes rendering of any service free of charge or under a contract of personal service. The exclusionary part in Section 2(1)(o) excludes from the main part service rendered (i) free of charge; or (ii) under a contract of personal service. The expression contract of personal service in the exclusionary part of Section 2(1)(o) must be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression service.
15. The Apex Court referred to the distinction between contract of service and contract for service as under:
There is a distinction between a contract of service and a contract for service. A contract for service implies a contract whereby one party undertakes to render service e.g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a contract of service implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. A contract of service is excluded for consideration from the ambit of definition of service in the CP Act, whereas a contract for service is included.
16. The service rendered at the government hospitals and the one provided at private hospitals was dealt with, as under:
As regards service rendered free of charge under Section 2(1)(o), the Court held that the medical practitioners, government hospitals/nursing homes and private hospitals/nursing homes, 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, however, not alter the position in respect of such doctors and hospitals, but the service rendered for which charges are required to be paid by everybody availing the service would fall within the purview of the expression service as defined in Section 2(1)(o) of the Act.
17. The service of medical practitioner and his relationship with the patient was delineated as follows:
the relationship between a medical practitioner and a patient carries within it a certain degree of mutual confidence and trust and, therefore, the service rendered by the medical practitioners can be regarded as a service of personal nature, but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service and it is a contract for service and the service rendered by the medical practitioner to his patient under such contract is not covered by the exclusionary part of the definition of service contained in Section 2(1)(o) of the CP Act.
18. The service rendered at the Government Hospital was discussed and the whole gamut of service rendered by a doctor was recapitulated as under:
In paragraph 55 of the judgment, the Court summarized its conclusions. We are really concerned in this case with conclusion Nos. (9), (10), (11) and (12). Conclusion No. (9) is in regard to the service rendered at a government hospital/health centre/dispensary where no charges whatsoever are made from any person and they are given free service, which would not be a service under Section 2(1)(o) of the CP Act. Conclusion No. (10) lays down that where the service is rendered at a government hospital/health centre/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of the expression service. Conclusion No. (11) says that if a patient or his relation availed of the service of a medical practitioner or hospital/nursing home where the charges for consultation, diagnosis and medical treatment are borne by the insurance company, then such service would fall within the ambit of service. Similarly, under conclusion No. (12), where as a part of the conditions of service the employer bears the expenses of medical treatment of an employee and his family members dependent on him, then the service rendered by a medical practitioner or a hospital/nursing home would not be treated to be free of charge and would constitute service under Section 2(1)(o).
19. The principle laid down in the aforementioned decisions with regard to the service rendered at Government Hospital is that where no charges are collected, the service does not constitute service within the ambit of Section 2(1)(o) of the Consumer Protection Act and where a patient is treated free of charge and charges are collected from a patient in the same hospital , the service rendered to the patient free of charge is the service within the meaning Section 2(1)(o) of the Consumer Protection Act. The appellant was working as a doctor at the relevant time with the Government Hospital at Chennur. At the same time, it is pertinent to observe from the contents of ExB1 to B3 that he was also running Yashoda X-Ray ,ECG & Scanning Clinic at Chennur and he obtained membership with the Indian Medical Association which had introduced Professional Protection & Welfare Scheme to protect and help members and public litigation concerned with medical profession, which may arise during the process of their professional practice.
20. Clause XV (B) of Rule XV of the Byelaws of the scheme prescribes the amount of `8,000/- for coverage of risk on diagnostic centre. The appellant has paid premium of `8,000/- which is the amount prescribed for coverage of risk, in respect of diagnostic centre, to an extent of Rs.5 lakh. The appellant opted for coverage of risk under Category I of the Scheme, 2007-2008. Fee paid under category I of the scheme provide insurance coverage to the members for the Professional Practice in their Clinic/Nursing Homes and also in other Nursing Homes and Hospitals.
21. The appellant sought to indemnified by the third respondent strengthening the inference of his administering treatment to the first respondent for consideration.
The statement of the first respondent that the appellant referred her to the clinic of Dr. Ravinder and Padmaja where no effective treatment was not administered to her, further weakens the no consideration theory. The appellant and the respondents no.2 and 3 have not stated whether the third respondent does collect or does not collect the charges from other patients. In the circumstances, the District Forum held the complainant maintainable under the provisions of the Consumer Protection Act and proceeded to decide the matter.
22. The learned counsel for the appellant challenged the propriety of the order in the light of the findings recorded as to the insufficient evidence to allow the complaint. There is substance in the contention of the learned counsel. He has relied upon the decisions of the Honble Supreme Court Martin F.DSouza vs Mohd.Ishfaq 2009(2)SCALE and Kusum Sharma and others Vs Batra Hospital & Medical Research Centre (2010)CJ523.
23. In Martin Dsouza, the Supireme Court held that whenever a complaint is filed before Consumer Forum, the complaint has to be referred to a doctor or a committee of doctors and based on the decision of the doctor or the committee that there is prima facie medical negligence, the complaint has to be admitted. The embargo laid on the admission of the complaint is removed by the decision of the Supreme Court in V.Kishan Rao vs Nikhil Super Specialty Hospital III(2010(CPJ1. The decision in Martin Dsouza has no application to the facts of the case.
24. In Kishan Rao, the Supreme Court considered its earlier decisions on medical negligence and also the application of the principle of res ipsa loquitor to the cases where the patient need not prove any fact relating to the negligence of the doctor . It was held:
In a case where negligence is evidence, the priniciple of res ipsa loquitor operates and the complainant does not have to prove anything s the thing (res) proves itself. In such as case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence
25. In Kusum Sharma, guidelines which had already been framed in the earlier cased had been crystallized as under:
1. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
2. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
3. In the realm of diagnosis and treatment, there is scope for genuine difference of opinion and one professional doctor is not clearly not negligent merely because his conclusion differs from that of other professional doctor.
26. It is to be seen whether the principle laid in the aforementioned decision is applicable to the facts of the case on hand.
27. The District Forum allowed the complaint holding that complications developed consequent to the treatment administered by the appellant to the first respondent and the evidence placed on record is insufficient to hold the appellant and the respondents no.2 and 3 guilty of medical negligence. When the evidence placed on record to allow the complaint, the Distinct Forum has two options at its disposal, 1. to give opportunity to the first respondent or 2. dismiss the complaint. Instead of exercising either of the options, the District Forum allowed the complaint.
28. For the foregoing reasons, we deem it a fit case to give opportunity to the first respondent to adduce further evidence and accordingly remit back the matter to the District Forum to enable the parties to adduce evidence in support of the rival contentions. The District Forum shall proceed in accordance with law.
29. In the result, the appeal is allowed by setting aside the order of the District Forum. The complaint is remitted to the District Forum with a direction to dispose the matter within three months from the date of receipt of the records. The parties shall appear before the District Forum on 16.02.2012.
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