National Consumer Disputes Redressal
Jagdish Kumar Bajpai vs Union Of India (Uoi), Ministry Of ... on 20 October, 2005
Equivalent citations: IV(2005)CPJ197(NC)
JUDGMENT
M.B. Shah, J. (President)
1. The limited question in this revision is - whether the Petitioner, a pensioner and beneficiary of the Central Government Health Scheme (C.G.H.S.), would be a consumer under the provisions of the Consumer Protection Act, 1986 (C.P. Act) for the alleged deficiency in service by the C.G.H.S. Medical Officer?
2. Complaint No. 852 of 1997 filed by the Petitioner was dismissed by the District Forum, Kanpur City, vide order 9.6.2000, solely on the preliminary objection raised by the Union of India that the Complainant was not a consumer within the meaning of the Consumer Protection Act, 1986. That judgment and order was confirmed by the State Commission, in Appeal No. 84 of 2000 dated 18.10.2001, by relying on the judgment and order dated 9.2.1996 passed by the National Commission in the case of Additional Director, C.G.H.S. Pune v. Dr.v R.L. Bhutani, Revision Petition No. 219 of 1995. Hence, this revision petition.
3. When the matter came up for hearing before the Bench of this Commission, it was referred to a larger Bench in view of the conflicting decisions rendered by this Commission, and also in view of the decision of the Apex Court in Indian Medical Association v. V.P. Shantha and Ors., .
4. At the outset it is to be stated that the point would not require much discussion in view of the recent decision rendered by the Apex Court in Laxman Thamppa Kotgiri v. G.M., Central Railway and Ors. (2005) 1 Scale 600. In the said case, a complaint was filed on the ground that the Complainant's wife had been negligently treated in B.R.Ambedkar's Hospital of the Central Railway, as a result of which she died. The State Commission, in view of V.P.Shantha's case held that as no charges were taken, service rendered at the Railway Hospital would not come within the definition of paid service for the purpose of C.P. Act. That was upheld by this Commission. Reversing the said judgment of this Commission, the Apex Court observed that since it was not in dispute that medical treatment given in the hospital to the employees and his family members was part of the conditions of service and that the hospital was being run and subsidised by the Appellant's employers, namely, the Union of India, the case would fall within the parameters laid down in para 55(12) of the judgment in V.P.Shantha's case. The Court also considered the decision in State of Orissa v. Divisional Manager, L.I.C. and Ors., and observed that V.P.Shantha's case was decided by a larger bench and was binding.
5. In para 55(12) of V.P.Shantha's case law laid down is as under:
"55. On the basis of the above discussion, we arrive at the following conclusions:
(12) Similarly, 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, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute 'service' under Section 2(1)(o) of the Act."
6. However, the learned Counsel appearing on behalf of the Respondent submitted that benefit given to the employees in service and the benefit given to the employees who are pensioners would stand on a different footing.
7. In our view, this contention also does not require much consideration in view of the law settled by the Apex Court in D.S. Nakara v. Union of India, . In the said case the Court held that the reasons underlying the grant of pension vary from country to country and from scheme to scheme. It pertinently observed that it is a social welfare measure rendering socio-economic justice to those who in the hey-day of their life ceaselessly toiled for the employer on an assurance that in their old age they would not be left in lurch. The Court also held that it was antiquated notion that pension was bounty or gratuitous payment and observed:
"A political society which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure wherein the retrial benefit is grounded on 'considerations of State obligation to its citizens who having rendered service during the useful span of life must not be left to penury in their old age, but the evolving concept of social security is a later day development". ...
"26. ... A pension scheme consistent with available resources must provide that the pensioner would be able to live: (i) free from want, with decency, independence and self-respect, and (ii) at a standard equivalent at the pre-retirement level. This approach may merit the criticism that if a developing country like India cannot provide an employee while rendering service a living wage, how can one be assured of it in retirement? This can be aptly illustrated by a small illustration. A man with a broken arm asked his doctor whether he will be able to play the piano after the cast is removed. When assured that he will, the patient replied, "that is funny, I could not before". It appears that determining the minimum amount required for living decently is difficult, selecting the percentage representing the proper ratio between earnings and the retirement income is harder. But it is imperative to note that as self-sufficiency declines the need for his attendance or institutional care grows. Many are literally surviving now than in the past. We owe it to them and ourselves that they live, not merely exist. The philosophy prevailing in a given society at various stages of its development profoundly influences its social objectives. These objectives are in turn a determinant of a social policy. The law is one of the chief instruments whereby the social policies are implemented and "pension is paid according to rules which can be said to provide social security law by which it is meant those legal mechanisms primarily concerned to ensure the provision for the individual of a cash income adequate, when taken along with the benefits in kind provided by other social services (such as free medical aid) to ensure for him a culturally acceptable minimum standard of living when the normal means of doing so failed". (See Social Security Law by Prof. Harry Calvert, p.1) ....
29. Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on savings. One such saving in kind is when you give your best in the hey-day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation or for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon. ...
36. Having set out clearly the society which we propose to set up, the direction in which the State action must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy especially of security in old age at least to those who have rendered useful service during their active years, it is indisputable, nor was it questioned, that pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life".
8. The decision rendered in the aforesaid case is continuously followed by the Apex Court.
9. In State of Kerala v. M. Padmanabhan Nair, , it was observed that pension and gratuity are no longer any bounty to be distributed by the Government to its employees on their retirement but are valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. This view was reiterated in Uma Agrawal (Dr.) v. State of U.P. .
10. From the aforesaid settled law, it is clear that pension scheme varies from time to time in the society. Pension is paid according to rules and it provides social security law along with benefits in kind such as free medical aid. In a Democratic Welfare State this is a necessity for survival of retired employees. Hence, pension including other service benefits payable under the scheme framed by the Government is a valuable right vesting in a retired government employee. It is part of wages and in that it consists of payment provided by an employer, is paid in consideration of past service and the purpose of helping the recipient to meet the expenses of living. It is not bounty but is an obligation of a welfare society and that too it is in accordance with the constitutional goal. It is also to be stated that medical facilities or aid is mostly needed after the age of retirement.
11. It is also to be stated that under the law, consideration can be in cash or kind. The definition of the word 'consumer' under Section 2(1)(d)(ii) provides that a person would, inter alia, be a consumer if he hires or avails of the services for consideration paid (paid in past or agreed to be paid in future including deferred payment). In consideration of service rendered to the Government till the age of superannuation, if right is conferred upon an employee to get pension as well as other benefits including medical treatment prescribed by various rules or the schemes framed by the Government, it cannot be held that it is a free service. Such employee would be a consumer as defined in Section 2(1)(d)(ii) of the Consumer Protection Act. Service rendered by the Government employees before retirement would be 'consideration' for providing medical facilities to him or his family members. Hence, it cannot be said that services rendered by the hospital which is subsidized by the Government is rendering service free of charge.
12. This aspect is considered in para 49 of the V.P.Shantha's case (Supra). The Court dealing with a similar situation illustrates that where a person has taken an insurance policy for medicare whereunder all charges, consultation, diagnosis and medical treatment are borne by the Insurance Company. In such a case the person receiving treatment is a beneficiary of services and the payment for such services would be made by the Insurance Company to the medical practitioner. The rendering of such service by the medical practitioner cannot be said to be free charge. Similarly, where as part of conditions of service the employer bears the expense of medical treatment of the employee and his family members dependant upon him, the service rendered to him by the medical practitioner would not be free of charge and would, therefore, constitute service under Section 2(1)(o). The same analogy would apply in case of retired employee. As stated above, past service would be consideration for providing such medical facility or other facilities.
C.G.H. Scheme:
13. For achieving the goal of Welfare State and for discharging its obligation to its employees and as per the assurance in the Directive Principle of State Policy, especially of security in old age, the Central Government has framed CGH Scheme as a welfare measure and is part and parcel of service benefits available to the employees in service and retired employees. This is clear from the Introductory Chapter of the C.G.H.Scheme which provides for eligibility for getting the benefit under the Scheme. It has been provided that employees and pensioners residing in the areas covered by the scheme and their family members can also avail the benefits of the scheme if they are totally dependent on the employee or/pensioner. It also provides that facilities can be availed at CGHS Hospitals/Dispensaries, Government Hospitals/Referral Hospitals, and in order to provide comprehensive and for certain specialized treatments not available in Government Hospital certain private hospitals have also been recognized under the scheme. It also provides that pensioners residing in non-CGHS areas are also entitled to fixed medical allowance of Rs. 100/- p.m. Such pensioners/employees availing CGH Scheme are required to make a nominal contribution every month as provided in the scheme. Not only this, he is also entitled to have traveling allowances in case any medical treatment involves travel. It is not necessary to discuss the other provisions.
15. However, we would refer to Chapter 9, which, inter alia, provides to the following effect:
"Eligibility:
(i) All Central Government pensioners including CPF retirees (except those of Railway and Armed Forces) are eligible for availing CGHS facilities if they were eligible to avail the same while in service irrespective of whether they actually availed of such facilities or not prior to their retirement".
16. From this scheme, it is apparent that employees in service and pensioners are treated at par with regard to medical facilities which are to be provided by the Central Government.
Facts:
17. Keeping this scheme in mind, now would refer to the facts of the present case.
18. It is the case of the Complainant that he is the beneficiary of CGHS facilities for which purpose he had deposited a sum of Rs. 630/- with the CGHS, as prescribed in the orders of the Ministry of Health, Govt. of India. In order to provide better medical facilities, some nursing homes and private hospitals are prescribed by the Government. The Medical Officer of the CGHS dispensary, keeping in view the seriousness of the illness of the patient, can refer the patient to a better equipped nursing home or private hospital, which is recognised by the CGHS. The medicines prescribed by the specialist of the nursing home/private hospital, after the discharge of the patient, have to be supplied by the CGHS to the patient, and the Medical Officer cannot change the prescription on his own without the concurrence of the specialist of the private hospital/nursing home.
19. On 27.7.1997, the Complainant's wife had a sudden heart attack. The Medical Officer of the CGHS Dispensary referred her to Madhu Raj Nursing Home, a CGHS recognised hospital, as her condition was very grave. In that hospital, she was treated by Dr.D.P.Agrawal, a heart specialist. She was discharged on 2.8.1997 and certain medicines were prescribed by the Heart Specialist. The Complainant had paid the hospital bills amounting to Rs. 6,400/- and submitted them on 12.8.1997 to the Additional Director of the CGHS for reimbursement. It is the say of the Complainant that the prescribed medicines for one week were issued to him by the CGHS dispensary, and, the medicines for the next week were refused.
20. The Medical Officer then referred the patient to Helot Hospital on 13.8.1997 and the patient was under the supervision of Dr.Saxena for three months. Despite the treatment, the Complainant's wife could not recover and her condition deteriorated. He, therefore, requested the CGHS authorities to refer her to Dr.Agrawal, Heart Specialist of Madhu Raj Nursing Home. That request was turned down by the medical officers. She, thereafter, suddenly died on 5.9.1997.
21. It is the case of the Complainant that this was negligence and deficiency in service by the medical officer of the CGHS, R.K.Nagar Dispensary. He, therefore, prayed that he may be reimbursed the expenses of Rs. 6,400/- incurred at Madhu Raj Nursing Home and be paid damages to the tune of Rs. 4 lakhs.
22. As stated above, the complaint was solely dismissed on the preliminary objection. The District Forum has not dealt with the merits of the case. The appeal was also dismissed by the State Commission. Hence, in view of the law settled by the Apex Court, the revision is allowed; the impugned orders passed by the District Forum and the State Commission are set aside; and, the matter is remanded to the District Forum. The District Forum is directed to dispose of the matter on merits at the earliest, preferably within three months from the date of the receipt of the order. The Respondent shall pay Rs. 10,000/- as costs.