Delhi

North

RBT/CC/54/2023

SMT SUSHMA DEVI - Complainant(s)

Versus

G B PANT HOSPITAL - Opp.Party(s)

26 Jul 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

RBT/ Consumer Complaint No. 54/2023

[DCDRC-VI (ND) CC no. 620/2015]

In the matter of

Smt. Sushma Devi

W/o Late Sh. Rakesh Kumar

Balliya Adarsh Nagar colony,

Tehsil: Shahjahanpur, P.S. Rauza,

Distt. Shahjahanpur-242001                                    …      Complainant

vs

G.B. Pant Hospital

(Through its Director)

1, Jawahar Lal Nehru Marg,

New Delhi-110002                                                  …        Opposite Party No. 1

 

Dr. Saket Aggarwal

Associate Professor (CTVS)

G.B. Pant Hospital

1, Jawahar Lal Nehru Marg,

New Delhi-110002                                                  …        Opposite Party No. 2

26.07.2024

Present:          Ms. Jaya Garg, Intern on behalf of Sh. Bhupesh Kumar Chandana, Ld. Advocate for the Complainant (through VC).

Ms. Bindya Savara, Ld. Advocate for the OPs-1&2 (through VC)

Dr. Saket Aggarwal, OP-2 in person (through VC).

ORDER (ORAL)

 (Divya Jyoti Jaipuriar)

1. It is stated on behalf of Ld. Advocate for the Complainant that he is not able to contact the Complainant therefore he may be permitted to withdraw his Vakalatnama. An email to this effect has also been received by this Commission from Ld. Advocate for Complainant. Accordingly, the request made on behalf of Ld. Advocate for the Complainant is allowed and his Vakalatnama is now treated as withdrawn.
2. This matter is listed today for final arguments. We have heard the arguments. The preliminary issue that we have to examine that whether this Commission is competent to entertain this complaint or not in view of the fact that the OP-1 herein is government hospital and OP-2 is a government doctor posted in OP-1 hospital.
3. Hon’ble Supreme Court in its judgment in the matter of Indian Medical Association v. V.P. Shantha [(1995) 6 SCC 651] has held that the services rendered by government hospital is not covered under the definition of “service” as defined in the Consumer Protection Act. Hon’ble Supreme Court in IMA judgment (supra) has held as under:

“55. On the basis of the above discussion, we arrive at the following conclusions:

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A “contract of personal service” has to be distinguished from a “contract for personal services”. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a “contract for personal services” and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1)(o) of the Act.

(4) The expression “contract of personal service” in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1)(o) of the Act.

(5) 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.

(6) Service rendered at a non-government hospital/ nursing home where no charge whatsoever is made from any person availing of the service and all patients (rich and poor) are given free service — is outside the purview of the expression ‘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.

(7) Service rendered at a non-government hospital/nursing home where charges are required to be paid by the persons availing of such services falls within the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act.

(8) Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(9) Service rendered at a government hospital/ health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service — is outside the purview of the expression ‘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.

(10) Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing of the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under Section 2(1)(o) of the Act.”

4. In a subsequent judgments in the matter of Nivedita Singh vs Dr Asha Bharti [CA No. 103/2012 decided on 07/12/2021] and in the matter of N K Srivasta [2020 (9) SCALE 208], Hon’ble Supreme Court has relied on the V P Shantha judgment (supra) and has held that services rendered by a government hospital rendering services to all its patients free of cost across the board, are out of the purview of the application of the Consumer Protection Act.
5. Ld. Advocate for the OP-1 also argues that as the OP-1 hospital, being a government run hospital, does not charge from the patients for the services so rendered by it and in the case in hand the Complainant has also not made any payment to the hospital for the services so rendered to her by the OP-1 Hospital.
6. It is indeed a fact that the Complainant herein has taken treatment from OP-1 hospital, which is a government hospital, where OP-2 is posted. It is also a fact that the OP-1 hospital does not charge whatsoever for the treatment/ services rendered by it to any of the patients.
7. As a result, in view of the judgments of Hon’ble Supreme Court referred above, the complaint is dismissed solely on the ground of maintainability of the complaint. However, in the interest of justice, we grant liberty to the Complainant to seek any other appropriate remedy against the OPs, if the same is available to her under the laws of the land. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order. While approaching the forum of appropriate jurisdiction, the Complainant may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs PSG industrial Institute [(1995) 3 SCC 583], for explaining the delay in initiating appropriate proceedings, if the same is available to her.
8. Order be supplied to the parties in accordance with rules. Order be also uploaded on the website. Thereafter file be consigned to the record room.

 

 

 

_________________________

Divya Jyoti Jaipuriar, President

 

 

 

_________________________

Ashwani Kumar Mehta, Member

 

 

 

_________________________

Harpreet Kaur Charya, Member