Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that unfortunately, on 18.01.2017 the complainant met with an accident and in said accident, the lower portion of the right leg got some normal swelling. The complainant went to Civil Hospital, Khanna for taking the treatment where the complainant was referred to Opposite Party Ortho Doctor. Opposite Party doctor examined the complainant and prescribed him for x-ray and after conducting x-ray, the Opposite Party asked the complainant that his leg was fractured and required immediate surgical operation and plates would be inserted in his leg. At the moment, Opposite Party told the complainant that in case he operated he same outside, then an amount of Rs.1,50,00/- approximately is to be slept on his treatment an in case the complainant operates from the Opposite Party, then the complainant has to arrange an amount of Rs.25,000/-. Any however, the complainant arranged Rs.20,000/- from his relatives on 19.01.2017 and gave to the Opposite Parties in the presence of his son and daughter, but no receipt has been given by the Opposite Party. At about 8.30/ 9.00 PM the Opposite Parties operated the leg of the complainant and inserted the plates in his legs alongwith his private persons and on 20.01.2017, the complainant was discharged after prescribing some medicines. After that, the complainant suffered some severe pain in his leg and it has become impossible for the complainant to sit or sleep. Thereafter, the complainant visited the hospital on 28.10.2017 and then on 06.02.2017 alongwith Sarpanch of the village, but the Opposite Party took false assurance of heeling. Thereafter, on 18.02.2017, the complainant was got admitted in Sidhu Hospital, Doraha where as per the prescription of Dr.Sidhu, he suggested for x-ray and other medical tests and after examining the x-rays and tests, Dr.Sidhu asked the complainant that the plates inserted in his leg are of sub standard and as such said plates have caused severe infection and there is a lot of pus in the leg and suggested for removal of said sub standard plates. Thereafter, Dr.Sidhu arranged one special machine for Apollo Hospital and remove the pus from the right leg of the complainant and he was operated and sub standard plates, rod and other equipments were removed by Dr.Sidhu and discharged on 23.02.2017, where he spent Rs.20,000/- for his next treatment and other expenses. As such, due to the negligence and carelessness on the part of the Opposite Party doctor, the complainant suffered huge loss which can not be compensated in the shape of money. Alleging deficiency in service, the complainant has filed the instant complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Party may be directed to refund the amount received from the complainant and also to pay Rs.3 lakhs as compensation for the damages and losses suffered by the complainant due to Unfair Trade Practice and due to negligence and deficiency in service on the part of Opposite Party.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the complaint is bad for non joinder and misjoinder of necessary parties. State of Punjab, Civil Surgon/ SMI, Civil Hospital, Khanna are also necessary parties. The Opposite Party is working as a Medical officer at Civil Hospital, Khanna and he is doing his duty being government employee and no complaint/ suit can be instituted against the government employee without serving notice under section 80 CPC. The Opposite Party has provided due services as per his ability and medical requirement of the complainant and there is no deficiency in service on the part of the Opposite Party. On merits, it is admitted that the complainant was admitted in Civil Hospital, Khanna and he was examined there. It is wrong that it was asked to the complainant that Rs.1,50,000/- is to be spent on the treatment of the complainant. It is also wrong that the complainant was advised to arrange an amount of Rs.25,000/- for his treatment. The Opposite Party has provided the due services in treating the complainant at Civil Hospital, to the best of his ability and there is no deficiency in service on the part of the Opposite Party. The Opposite Party has treated upon the complainant being Medical Officer at Civil Hospital, Khanna and he has not been given any treatment in individual capacity. It is also wrong that the Opposite Party obtained Rs.20,000/- from the complainant for operation. Hence, the instant complaint is not maintainable and the same may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C34 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered into evidence the affidavit Ex.RW1/A and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant as well as Opposite Party have mainly reiterated the facts as narrated in the complaint as well as in the written statement. We have perused the rival contentions of the parties. It is not the denial of the case that complainant was got admitted in Civil Hospital, Khanna for taking the treatment where the complainant was referred to Opposite Party Ortho Doctor. But after operation upon the complainant by the Opposite Party doctor, the complainant suffered some severe pain in his leg and it has become impossible for the complainant to sit or sleep and due to the negligence and deficiency in service on the part of the Opposite Party doctor, the complainant suffered a great loss, and as such, there is deficiency in service on the part of the Opposite Party doctor. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Opposite Party is working as a Medical officer at Civil Hospital, Khanna and he is doing his duty being government employee and no complaint/ suit can be instituted against the government employee without serving notice under section 80 CPC. The Opposite Party has provided due services as per his ability and medical requirement of the complainant and there is no deficiency in service on the part of the Opposite Party.
8. First of all, the complainant has failed to prove by filing any receipt or any other evidence on record that he ever paid any amount as alleged to the Opposite Party doctor on account of his treatment in Civil Hospital, Khanna. Moreover, for the sake of arguments, if it is presumed that the Civil Hospital, Khanna has charged any amount from the complainant, these charges are only for the procedures which are required to be followed for treating the patient. These cannot be termed as the medical fee or a consideration charged by the doctors in the Government hospitals. Reference can be made to the judgment of the Hon’ble Supreme Court reported as “State of Punjab vs. Shiv Ram & others” (2005) 7 SCC 1 and the latest judgment of Hon’ble National Commission reported as “Chief Executive Officer, Zila Parishad, Jalagaon v. Shaguna Bai Naval Singh Chauhan” AIR 2009 NOC-1211 (NC). In this regard, Hon’ble State Consumer Disputes Redressal Commission Punjab at Chandigarh has also taken the similar view in the judgment dated 25.11.2009 passed in First Appeal No.487 of 2004 “Satnam Kaur vs. Punjab Health System Corporation and others”.
9. Not only this, Hon’ble State Consumer Disputes Redressal Commission Punjab at Chandigarh in First Appeal No.1593 of 2006, decided on 19.04.2011 in case Paramjit Kaur Versus The Punjab Health System Corporation also held that the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1)(o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing of the service a ‘consumer’ under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).” After discussing the whole law, the Hon’ble Supreme Court drew the conclusion in Para 55 Sub Para 5 as under :-
“Service rendered free of charge by a Medical Practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be “service” as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.”
In the Government Hospital, the medical services are rendered free of costs and whatever amount is charged from the patients, it is the token amount only charged to meet the expenses and not the medical fee as charged by the private hospitals.
10. In view of the law laid down by the Hon’ble Supreme Court discussed above, the judgments of the Hon’ble National Commission and the Hon’ble U.T. State Commission need not be discussed as the law laid down in these judgments is superseded by the law laid down by the Hon’ble Supreme Court. Keeping in view the discussion held above, we are of the view that the complainant is not the consumer under the Consumer Protection Act, 2019 and hence, the instant complaint filed by the complainant before this District Consumer Commission is not maintainable.
11. In view of the aforesaid facts and circumstances of the case, the instant complaint stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
12. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
