F.A.No. 308 OF 2013 AGAINST C.C.NO. 110 OF 2000 DISTRICT FORUM-II KRISHNA DISTRICT AT  VIJAYAWADA

Between:
 

1.   Director General
ESI Corporation, Panchideep Bhavan
Kotla Road, Delhi-002

2.   The Regional Director,
ESI Corporation, 5-9, 23
Hill Fort Road, Hyderabad-483

                                           Appellants/ opposite parties no.1 and 2                       

        A N D

1.   Parikae Nireekshana Rao S/o Krishnaiah
Bandi Kolanka Village, Mopidevi Post
Mopidevi Mandal, Krishna District

Respondent/complainant

2.   The Superintendent,
ESI Hospital, Vijayawada

3.   Dr.T.Swaroop Kanth
ESI Hospital, Gunadala
Vijayawada

4.   S.S.Jayabala
ESI Hospital, Gundala
Vijayawada
(R2 to R5 proforma parties)

5.   The Director
NIMS, Punjagutta
Hyderabad

                                        Respondents/opposite parties no.3 to 6

Counsel for the Appellant                      M/s William Burra

Counsel for the Respondents                 M/s V.Ramu(R1)

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER

TUESDAY THE THIRTY FIRST DAY OF DECEMBER  

                                TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble I/c President)

***

1.             The complainant is an employee of M/s Vijaya Spinning Mills Ltd , a public limited company at ganguru near Vijayawada. On 29.09.21998 the complainant approached ESI hospital at Ganguru for treatment of fever and he was referred to ESI hospital, Gunadala, Vijayawada where he was treated as inpatient and later he was referred to Dr.P.Ramesh, cardiologist, Vijayawada and he advised the complainant to approach NIMS, Hyderabad.  The labour welfare officer of M/s Vijaya Spinning Mills Ltd accompanied the complainant and the superintendent of ESI hospital, Vijayawada issued referral letter to NIMS.

2.             The complainant was referred to Apollo Hospital on 7.10.1998 where he was treated by cardio-thoracic and vascular surgeon. The complainant was diagnosed with suffering from 1.post injection thrombo -embolism and gangrene of RD 3,4 and 5 and right thumb apart from 2.scrotal abscess and 3.Neurogenic bladder. After stabilization of gangrene, the complainant was operated upon for terminalisation of right 3,4 and 5 fingers  and amputation of right thumb.

3.             The complainant has submitted that he was in prime youth at the time the opposite parties no.3 and 4 medically treated him and due to negligence, he lost his fingers and though being a graduate in mechanical engineering, he lost bright career.

4.             The opposite parties have contended that the District Forum has no jurisdiction to entertain the complaint and the complainant is not consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. There is no medical negligence on the part of the opposite parties no.3 and 4.

5.             The complainant filed his affidavit and the documents, Exs.A1 to A32.  On behalf of the respondents, the Superintendent of the respondent no.3, the respondent  no.4 and the respondent  no.5 and the documents, Exs.B1 to B22 and X1. 

6.             The District Forum allowed the complaint on the premise of it possessing jurisdiction to try the matter and on the foot of medical negligence leading to amputation of fingers of the complainant. The District Forum awarded an amount of `4,25,000/- with interest towards compensation.

7.             The opposite parties no.1 and 2 have filed appeal contending that the District Forum has no jurisdiction to decide the dispute and the acts of the opposite parties no.3 and 4 do not bind the opposite parties no.1 and 2. In other words, it is contended that the opposite parties no.1and 2 cannot be vicariously held liable for the act of the opposite parties no.3 and 4.

8.             The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?

9.             The employment of the complainant with M/s Vijaya Spinning Mills Ltd  during the year 1998 and  his suffering from illness as also his treatment at ESI hospitals,   and Vijayawada and NIMS  is not disputed. The complainant claimed compensation from the opposite parties no.3 and 4 for their negligence and from the opposite parties no.1 and 2 on account of their having control over the functioning of the opposite parties no.2 and 4.

10.            The jurisdiction aspect is elaborately discussed by the District Forum which referred to the decisions of the Hon’ble Supreme Court in “Shiv Kumar Joshi vs Provident fund Commissioner “ AIR, 2000 Supreme Court, 331 and the decision of the Bombay High Court in “M/s Popular Process Stuid and Another v. ESI Corporation” AIR 1970 Bombay, 413.   The District Forum considered the decisions and the rigour of Section 75 of ESI Act as under :

iv).       The Supreme Court dealt with various aspects of this matter in INDIAN MEDICAL ASSOCATION VS. V.P. SHANTHA AND OTHERS. (AIR 1996 SUPREME COURT 550). The Supreme court held that service rendered by medical practitioner is not outside section 2(1)(o) of the Act. From the use of the word ‘potential users’ it cannot, therefore, be inferred that the services rendered by medical practitioners are not contemplated by Parliament to be covered within the expression ‘service’ as contained in Section 2(1)(o). The Supreme Court further held that the word ‘hires’  as used in the same sense as ‘avails of’. The Supreme Court further held that  rendering free of charges services to some patient and services on payment to others fall within the ambit of service under Section 2 (1)(o) of the Act. The Supreme Court further held that there may be case where a person has taken an insurance policy for medi-care whereunder all charges by consultation, diagnosis or medical treatment borne by Insurance Company. In such a case the person receiving the treatment is a beneficiary of the service which has been rendered to him by the medical practitioner, the payment for which would be made by the Insurance Company under the insurance policy. The rendering of service by the medical practitioner cannot be said to be free of charge and would, therefore, fall within the ambit of expression service in Section 2(1)(o) of the Act. So also there may be cases where as a part of the conditions of service the employer bears the expense of medical treatment of the employee and his family members dependent on him. The service rendered to him by a medical practitioner would not be free of charge and would therefore, constitute service under Section 2(1)(o) of the Act.

v).        IN REGIONAL PROVIDENT FUND COMMISSIONER VS. SHIV KUMAR JOSHI (AIR 2000 SUPREME COURT 331), it is held that the provisions of the Consumer Protection Act, 1986 can be invoked against he Provident Fund Commissioner by a member of the Employees Provident Fund Scheme as such member is a ‘consumer’ and the duties performed by the provident Fund Commissioner under the relevant scheme is a ‘service’ within the meaning of the  Act. The Supreme Court further held that the combined reading of the definitions of ‘consumer’ and ‘service’ under the Act and looking at the times and object for which the act was enacted, it is imperative that the words ‘consumer’ and ‘service’ as  defined under the Act should be construed to comprehend Consumer and services of commercial and trade oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2 (1) (o) of the Act. The Regional Provident Fund Commissioner under Employees’ Provident Fund Act and the Employees’ Provident Fund Scheme, 1952 discharges statutory functions for running the scheme. It has not, in anyway, been delegated with the sovereign powers of the state so as to hold it as a Central Government, being not the authority rendering the ‘service’ under the Consumer Protection Act. The commissioner is a separate and distinct entity. It cannot legally claim that the facilities provided by the ‘scheme’ were not ‘service’ or that the  benefits under the scheme being provided were free of charge. The definition of ‘consumer’ under the Act includes not only the person who hires the ‘services’ for consideration but also the beneficiary for whose benefit such services are hired. Even if it is held that administrative charges are paid by the Central Government and no part of it is paid by the employee, the services of the provident fund  commissioner in running the scheme shall be deemed to have been availed of for consideration by the Central Government for the benefit of employees  who would be treated as beneficiary within the meaning of that word used in the definition of consumer.

vi).       The Employees Provident Fund Act is akin to the ESI Act. This ESI Act. The ESI Act was also enacted for the benefits of the employees. Therefore, the contention of the opposite parties that the ESI Corporation is a statutory body and as such is precluded from the jurisdiction of Consumer Forum is devoid of merits.

vii).      For the reasons mentioned above it is held that the complainant is a ‘consumer’ within the meaning of Section 2 (1) (d) (ii) of the Act, 1986.

viii).     It is next to the considered, whether Section 75 of the ESI Act, 1948 bars the jurisdiction of Consumer For a in its entirety and whether it is only in a restricted manner with regard to certain limited kinds of disputes arising in the course of the administration of the ESI Scheme.

Section 75 of the ESI Act reads as follows:

Matters to be decided by Employees' Insurance Court :- (1) If any question or dispute arises as to--

(a)        whether any person is an employee within the meaning of this Act  or whether he is liable to pay the employee's contribution, or

(b)        the rate of wages or average daily wages of an employee for the purposes of this Act, or

(c)       the rate of contribution payable by a principal employer in respect of any employee, or

(d)        the person who is or was the principal employer in respect of any employee, or

(e)        the right of any person to any benefit and as to the amount and

duration thereof, or

(ee)      any direction issued by the Corporation under Section 55-A on a

review of any payment of dependant's benefits, or,

(f)         [x x x x], or

(g)        any other matter which is in dispute between a principal employer and the Corporation, or between a principal employer and an immediate employer, or between a person and the Corporation or between an employee and a principal or immediate employer, in respect of any contribution or benefit or other dues payable or recoverable under this Act, or any other matter required to be or which may be decided by the Employees' Insurance Court under this Act, such question or dispute subject to the provisions of sub-section (2-A), shall be decided by the Employees' Insurance Court in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (2-A), the following claims shall be decided by the Employees' Insurance Court, namely: _

(a)        claim for the recovery of contributions from the principal employer;

(b)        claim by a principal employer to recover contributions from any immediate employer;

(c)        1[x x x x]

(d)        claim against a principal employer under Section 68;

(e)        claim under Section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and

(f)         any claim for the recovery of any benefit admissible under this Act.

(2-A)    If in any proceedings before the Employees' Insurance Court a disablement question arises and the decision of a medical board or a medical appeal tribunal has not been obtained on the same and the decision of such question is necessary for the determination of the claim or question before the Employees' Insurance Court, that Court shall direct the Corporation to have the  question decided by this Act and shall thereafter proceed with the determination of the claim or question before it in accordance with the decision of the medical board or the medical appeal tribunal, as the case may be, except where an appeal has been filed before the Employees' Insurance Court under sub-section (2) of Section 54-A in which case the Employees' Insurance Court may itself determine all the issues arising before it.

(2-B)    No matter which is in dispute between a principal employer and the Corporation in respect of any  ontribution or any other dues shall be raised by the principal employer in the Employees' Insurance Court

unless he has deposited with the Court fifty per cent of the amount due from him as claimed by the Corporation:

Provided that the Court may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this sub-section.

(3)        No civil Court shall have jurisdiction to decide or deal with any question or dispute as aforesaid or to adjudicate on any liability which by or under this Act is to be decided by a medical board, or by a medical appeal tribunal or by the Employees' Insurance Court.Section 76 of the ESI Act deals with the Institution of Proceedings. It reads as

follows:

76.       Institution of proceedings, etc. :- (1) Subject to the provisions of this Act and any rules made by the State Government, all proceedings before the Employees' Insurance Court shall be instituted in the Court appointed for the local area in which the insured person was working at the time the question or dispute arose.

(2)        If the Court is satisfied that any matter arising out of any proceeding,pending before it can be more conveniently dealt with by any other Employees' Insurance Court in the same State, it may, subject to any rules made by the State Government in this behalf, order such matter to be transferred to such other Court for disposal and shall  forthwith transmit to such other Court the records connected with that matter.

(3)        The State Government may transfer any matter pending before any Employees' Insurance Court in the State to any such Court in another State with the consent of the State Government of that State.

(4)        The Court to which any matter is transferred under sub-section (2) or sub-section (3) shall continue the proceedings as if they had been originally instituted in it.

ix).                   In order to attract any dispute under the category of ‘any other matter’ within the meaning of Clause (g) Sub-section (1) Section 75 of ESI Act, such dispute or matter

has to qualify in all the following requirements:

a)         that the matter or dispute is such that it is required to be or may be decided by the ESI Court.

b)         And such matter shall be decided by the ESI Court subject to the provisions of Sub-section 2 (A) of Section 75.

c)         Further, the matter shall be decided by the ESI Court in accordance with the provisions of the ESI Act, 1948.

x).        A perusal of Section 75 and 76 of the ESI Act does not infer that cases of medical negligence or matters of that kind are required to be or may be decided by the ESI Court. There is no provision in the ESI Act to deal with the cases of medical negligence  nlike cases relating to questions about contribution by employer and employee, benefits admissible to employee, recovery of dues  and so on for the adjudication of which definite provisions are made in the ESI Act.

                        x)         xxx

                        xi)        xxx

                        xii)       xxx

                        xiii)      xxx

                        xiv)      xxx

                        xv)       xxxs

xvi).     But the facts of the aforesaid case are different from the facts of the present case. The cases of negligent medical service are not covered under Section 75 of ESI Act. Section 75 of ESI Act deals with only certain types of cases and disputes which can be decided by ESI Court. The cases of medical negligence are  outside the purview of the Section 75 of ESI Act. Therefore, we hold that the aforesaid decision has no bearing on the facts of the present case. The complainant has no remedy under the ESI Act. There is no provision in the ESI Act governing a case of culpable medical negligence.

11.            The discussion of the District Forum would answer the question that the Consumer Forum in the teeth of Section 75 of ESI Act has jurisdiction to entertain the complaint.

12.            The other limb of the contention of the opposite parties no.1 and 2 is that they cannot be vicariously held liable to pay compensation for the medical negligence on the part of the opposite parties no. 3 and 4.  The opposite parties no.3 and 4 have not filed appeal against the order finding them rendering deficient service.    

13.            The ratio in “ Kishore Lal v. Chairman, Employees State Insurance Corporation” (2007) INSC 519,   would render the objection a nullity and the Supreme Court   is emphatically said that the ESI Corporation would exercise control over the employment of the opposite parties no.3 and 4 and the opposite parties no.1 and 2 as such cannot wriggle out themselves from the responsibility on the principle of vicarious liability for the act of the opposite parties no.3 and 4 in the course of their employment with ESI. 

14.            Thus, there cannot be any sustainable plea that the opposite parties no.1 and 2 are not responsible for the act of the opposite parties no.3 and 4 while they discharge the duty at ESI Hospital.  We do not find any infirmity   either legal or factual in the order of the District Forum.  The appeal is devoid of any merits and liable to be dismissed.

15.            In the result the appeal is dismissed confirming the order of the District Forum.  There shall be no separate order as to costs.

                                                                          I/C PRESIDENT

                                                                               MEMBER

                                                                              MEMBER

                                                                          Dt.31.12.2013

కె.ఎం.కె.*