The case is taken up for hearing on the point of maintainability of the same. The fact of the case in short is that the complainant is a primary school teacher. On 07/10/2018 his daughter was taken to Falakata Super Specialty Hospital at around 10:00 P.M. due to her mild fever. His daughter was admitted in the emergency department at that hospital under Dr. Ranjan Hazra. Previously Dr. Sudipta Halder treated her and advised some medicines for her fever but medicines as prescribed by the doctor previously did not take any effect. As a result she was admitted in emergency department on 07/10/2018 at the said Government Hospital when she was admitted at the hospital her temperature was 102.7⁰F but at the hospital the duty nurse took her temperature which was around 99.6⁰F and her temperature was fluctuated. Where the hospital she was under treatment of Dr. Hazra he pushed two injections to the daughter of complainant and after that the doctor assured the complainant and his wife that there was nothing adverse. When the complainant came back to his home and his wife was there with her daughter about the mid-night the complainant received a phone call that are daughter was crying when the doctor advise another injection and ultimately the child was not cure. After that they shifted of his daughter to Cooch-Behar Mission Hospital (P) Ltd. where city scan was done. It was normal and ultimately the patient was deteriorating he was referred to Siliguri where she died.

The case started against the doctor that is the O.P u/s. 304A IPC. According to the complainant there is a negligence and deficiency in service of the doctor and he has claim compensation along with others. All the O.Ps arrived and raised complains and stated that the complainant is not a consumer according to the Act. He did not pay single penny for the treatment of her daughter and her daughter fully treated at Government Hospital without taking any fees. The O.P No. 1 stated that in this case the expert report is required before issuance of notice upon the doctor he has referred the Judgment of the Hon’ble Supreme Court being Civil Appeal No. 3541 of 2002 where from it appears that this type of case the expert report is required before issuance of notice but here no report was called for but we find that this case law has been overruled subsequently by the Hon’ble Supreme Court. Wherefrom it appears that if prima facie case is find out no report is required before issuance of notice and it can be called for during trial if required. So, here in this case we find that negligence is there from the part of the hospital doctor. So, report is not required before issuance of notice. Second argument by the Ld. Lawyer for the O.P Nos. 2 and 3 that according to the definition, the complainant is not a consumer as because the patient was treated in a Government Hospital no charge was paid for the treatment and the law says that he is not a consumer. In this regard he has referred a decision reported in 11 (2016) CPJ 306 NC where in the National Commission has held that the complainant do not fall with purview of consumer under Consumer Protection Act. Here was the question of making payment for the service hire by the Government Hospital SAT Hospital not charging from the patients and hence are rendering services to the Consumers under the Consumer Protection Act.  Here, in this case we find that the daughter of the complainant was admitted in a Government Hospital no fees or charge was demanded or deposited it was a free service so the complainant is not come within purview of the definition of consumer according to the Consumer Protection Act and so that this case is not tenable against the doctor of the Government Hospital as because the complainant is not at all a consumer under the Act.  So, accordingly the case is not maintainable and it’s liable to be dismissed.

                                                                                        Ordered

                that the instant case be and the same is dismissed on contest without costs as it is not maintainable according to law