State Consumer Disputes Redressal Commission
Sri Prasanta Kr. Das vs Dr. Aloke Kr. Samanta on 12 March, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/351/2018 ( Date of Filing : 11 Apr 2018 ) (Arisen out of Order Dated 20/03/2018 in Case No. Complaint Case No. CC/27/2018 of District Paschim Midnapore) 1. Sri Prasanta Kr. Das S/o Lt Satish Chandra Das, Vill. & P.O. - Birsingha, P.S.- Ghatal, Dist. Paschim Medinipur. ...........Appellant(s) Versus 1. Dr. Aloke Kr. Samanta Attached with Ghatal Sub-Divisional Hospital, P.O. & P.S. - Ghatal, Dist. Paschim Medinipur. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Mr. Barun Prasad, Mr. Sovanlal Bera, Mr. Subrata Mondal, Advocate For the Respondent: Ms. Binota Roy, Advocate Dated : 12 Mar 2019 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order no. 4 dated 20-03-2018 passed by Ld. DCDRF, Paschim Medinipur in CC/27/2018 where Ld. Forum concerned, at the initial stage, declined to admit the complaint case with the finding that the doctor and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of 'service' under section 2 (1) (o) of the Consumer Protection Act, 1986 and held the complaint case 'not maintainable'.
Being aggrieved by such order dated 20-03-2018 the present appeal has been preferred by the complainant/Prasanta Kumar Das who filed the complaint case before Ld. DCDRF, Paschim Medinipur alleging 'deficiency of service' and prayed for compensation to the tune of Rs. 15,00,000/- (Rupees fifteen lakh) and Rs. 50,000/- (Rupees fifty thousand) towards litigation cost.
Now the point for consideration is - whether Ld. Trial Forum was justified in passing the order impugned.
Claim of compensation by a person before a Consumer Forum/Commission is admitted when it is prima facie established that the complainant is a consumer within the meaning of section 2 (1) (d) of the said Act and who claims 'deficiency of service' or 'unfair trade practice' within the meaning of section 2 (1) (o) and 2 (1) (r) of the Consumer Protection Act. In the instant case the complainant alleged that his wife while became pregnant for the second time in the early part 2017, she was taken to Birsingha Rural Hospital and the concerned doctor of the said Hospital used to treat her and used to give medicines, injections etc. regularly. On 13-08-2017, the labour pain of the patient started and for that reason the complainant took his wife to Birsingha Rural Hospital once again and admitted her there on that date. The concerned doctor referred the patient to Ghatal SD Hospital on 14-08-2017 and the patient was admitted there and immediately after her admission the OP/doctor took the patient to the OT for seizure delivery and one child was born at about 2 P.M. on 14-08-2017. Thereafter in the night on 15-08-2017 the condition of the mother, Pampa Das became critical and the patient was referred to Medinipur Medical College and Hospital in the morning of 16-08-2017 and after seeing the condition of the patient, the patient was referred to SSKM Hospital, Kolkata. The doctor of SSKM Hospital after seeing the patient and after clinical check up disclosed that due to negligence of Dr./OP at Ghatal Hospital, the condition of said patient became so critical and disclosed that he would try his best to recover her but unfortunately on 25-08-2017 at about 6 a.m. said patient (Pampa Das) died. Thereafter the complainant made a complaint before the CMOH, Paschim Medinipur and other Administrative Officer and made a complaint before Ghatal P.S. but due to negligence on the part of the OP, the wife of the complainant died as the OP/doctor did not take proper care and there was 'deficiency in service' which was established from the death report issued by the doctor of SSKM Hospital, Kolkata and for which the complainant prayed for compensation and litigation cost, as indicated hereinabove.
Ld. DCDRF while at the stage of admission of the complaint case declined to admit the same with observation that the complaint case under section 12 of the Consumer Protection Act was not maintainable as the doctors and hospitals who render service without any charge to every person could not fall within the ambit of 'service' as pointed earlier. Now the point for consideration is - whether Ld. Trial Forum was justified in declining to admit the complaint case.
Ld. Counsel for the appellant in course of argument pointed out that the order passed by Ld. DCDRF was not inconformity with the provisions of Consumer Protection Act because the complainant who claimed compensation and other consequential reliefs against the OP was 'consumer' within the meaning of section 2 (1) (d) of the Act and as his wife was the victim of 'deficiency of service' within the meaning of section 2 (1) (o) of the Consumer Protection Act. In support of his contention he relied on a decision of Hon'ble Apex Court in Paschim Banga Khet Mazdoor Samity Vs. State of West Bengal and another, reported in 1996 SCC (4) 37 and pointed out that the Government Hospitals should be absolved from liability since there was the constitutional obligation to provide free medical aid to a poor and the state cannot avoid its constitutional obligation in that regard on account of financial constraints.
His Ld. counterpart on the other hand expressed a contrary view over the issue. Placing reliance on a decision of Hon'ble Apex Court in Indian Medical Association Vs. V. P. Shantha and others, reported in (1995) 6 SCC 651 she urged that the doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of service under section 2 (1) (o) of the Act and the payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals.
Heard Ld. Counsel for the parties and gave our anxious thought over the matter. Ld. Counsel for the appellant with reference to the decision of Hon'ble Apex Court in Paschim Banga Khet Mazdoor Samity (supra) submitted that the expression 'consumer' as defined in section 2 (1) (d) of the Act includes persons getting or eligible for medical treatment in Government Hospitals and the expression 'service' as defined in section 2 (1) (o) of the Act includes services, provided in the Government Hospitals also. He also placed reliance on the decision of the Hon'ble Apex Court in Indian Medical Association Vs. V. P. Shantha and others (supra) which is quoted below:-
" The government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act, it would not be possible to treat the government hospitals differently. We are of the view that in such a situation, the persons belonging to "poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". We are, therefore, of the opinion that service rendered by the doctors and hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression 'service' as defined in Section 2 (1) (o) of the Act. We are further of the view that persons who are rendered free service are the 'beneficiaries' and as such come within the definition of 'consumer' under Section 2 (1) (d) of the Act." In this context we may also place reliance on a decision of the Hon'ble Apex Court in V. Krishnakumar Vs. State of Tamilnadu and others in Civil Appeal No. 5402 of 2010 dated 01-07-2015 where the Hon'ble court held that "the hospitals is vicariously liable for the acts of the doctors and the state would be vicariously liable for the damages which may become payable on account of negligence of his doctors or other employees". In the premises we are unable to hold that Ld. DCDRF passed the order impugned following the provisions codified in the Consumer Protection Act and the principles laid down by the Hon'ble Apex Court, as quoted earlier. Accordingly we allow the appeal, set aside the order impugned and direct Ld. DCDRF to admit the complaint case and dispose of the same according to law after giving the OP an opportunity to contest the same by filing written version or otherwise but endeavour shall be made to get the complaint case disposed of as early as possible. With these observations and directions this appeal stands disposed of. We do not pass any order as to costs. To 16/04/2019 for appearance of the parties before Ld. DCDRF. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER