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9. Learned counsel for opposite party No.1 vehemently contended that the complainant had not paid any amount, so she does not fall under the definition of the "consumer", as defined in Section 2 (1) (d) of the Act. In fact, the complainant was having the insurance policy of opposite party No.2 and for that reason, cashless surgery was carried out on 09.09.2014. However, the insurance company declined to release the claim amount. Learned counsel for opposite party No.1 further contended that the surgery was correctly conducted and all the three fibroids were removed. No fibroid was left in the womb of the complainant after the surgery and she was discharged in satisfactory condition. Sometimes, small fibroids remain in the uterus, which can grow again due to post operative blood collection, scar tissue or seeding fibroids etc., which were not at all visible at the time of surgery. After the surgery, the uterus was normal and endometrial was also normal. The doctor made every effort to preserve the uterus, as the complainant was a young lady and was not having any issue. Learned counsel further contended that no medical expert evidence has been led to prove that opposite party No.1 was negligent in performing the surgery upon the complainant. It is the duty of the complainant to positively prove the negligence on the part of opposite party No.1. He also contended Dr. Rajni Jindal is MS Gynecologist and is a specialist in the field and has worked in Apollo Hospital, New Delhi as well as Mullana Azad Medical College, New Delhi. Opposite party No.1 was not, at all negligent while performing surgery upon the complainant and there was no deficiency in service on its part. The District Forum has passed an erroneous order, fastening liability upon opposite party and the same is liable to be set aside and the complaint of the complainant deserves to be dismissed.

(i) Whether the complainant still falls under the definition of the "consumer, as defined in Section 2 (1) (d) of the Act, even though no treatment charges were paid by the complainant to opposite party No.1?

(ii) Whether opposite party No.1 committed medical negligence and deficiency in service, while performing surgery upon the complainant?

In Re: Question No.(i):

14. The "consumer" is defined, under Section 2 (1) (d) of the Act, as under:

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.

15. A bare perusal of the above said definition of "consumer", shows that a consumer means any person, who buys any goods 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 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. When such service, as referred to above, is availed, then the complainant certainly falls under the definition of "consumer". The definition of "consumer" is wide enough to include a patient, who merely promised to pay the treatment charges to the hospital. In the present case, even if for the arguments sake, it is presumed that the complainant has promised to pay the treatment expenses, by way of the sum insured under the policy, which as per opposite party No.2 did not cover her claim, even then the categorically finding has been recorded by the District Forum that opposite party No.1 has sent a bill of ₹53,882/-,. The averments of the complainant, supported by her affidavit Ex.C-27, that she was allowed to leave the hospital, only after paying ₹50,000/- to opposite party No.1, are to be given due weightage. Still notice was given by opposite party No.1 to the complainant for making the payment of ₹53,882/-. Opposite party No.1 in its written reply admitted that an amount of Rs.500/- was paid by the complainant and the said amount was sent to Dr. Deepali Path Labs and Cancer Diagnostic Centre, Bathinda, for further investigation. The complainant has annexed the receipt of Rs.500/- dated 09.09.2014 issued by opposite party No.1-Hospital Ex.C-16. On this receipt, Depali Lab. is written in bracket by hand. Opposite party No.1 has neither produced any receipt issued by Deepali Labs. showing that the said amount of Rs.500/- was received by them from opposite party No.1 on behalf of the complainant, nor any affidavit of Deepali Lab. is on the record to this effect. Therefore, the version of opposite party No.1 that the said amount of Rs.500/-, which was received from the complainant, was further sent to Deepali Labs, is not acceptable. Be that as it may, the fact remains that the complainant squarely falls under the definition of the "consumer. Even Otherwise, the complainant had been taking treatment from opposite party No.1 earlier to the surgery also and she had conceived a baby at that time, but due to some problem regarding improper growth of the baby, the same was to be aborted.

17. In view of above discussion and the settled law, when the person availing treatment from Government Hospitals free of charge are held to be beneficiaries-consumers, then it is to be held that the complainant in this case, who hired the service of opposite party No.1 for getting her surgery conducted, would certainly fall within the definition of the "consumer", as defined in the Act, as the treatment undertaken by opposite party squarely falls within the definition of "service" as per the definition given in Section 2 (1)(o) of the Act. Even otherwise, it is beyond imagination that opposite party No.1 has undertaken treatment of the complainant and performed such complicated surgery on the complainant free of charge. Resultantly, as discussed above, Question No.(i) is decided in favour of the complainant.