West Bengal



Prasanta Ghosal - Complainant(s)


Medical Superintendent and two others - Opp.Party(s)

Tapan Dey

21 Sep 2023



  Consumer Complaint No.01/2012

           Date of Filing:  09/01/2012


1. Samiran Dutta                              Ld. President.      

2. Rina Mukherjee                          Ld. Member. 

3. Siddhartha Sankar Bhui            Ld. Member.

For the Complainant:Ld. Advocate Tapan De

For the O.P No.1 & 3 Ld. G.P., Bankura  & for O.P. No.2. Ld. Advocate Shanti Ranjan Hazra



Prasanta Ghosal since deceased substituted by his wife Smt. Purnima Ghosal, at Oltora, Beliatore, Bankura

Opposite Party:

1.Medical Superintendent, Bangur Institute of Neuro Sciences, Govt. of West Bengal, 52/1A, Sambhu Pandit Street, Kolkata- 25

2.Dr. A.K. Chowdhury (Neuro Surgeon), Unit-II Bangur Institute of Neuro Sciences, Govt. of West Bengal,  52/1A, Sambhu Pandit Street, Kolkata- 25

3.Principal Secretary, Deptt of Health & Family Welfare, Swasthya Bhavan, G.N.29, Sector-V, Salt Lake City, Kolkata- 91                                                             




Order No.92


Neither party takes any steps.

The substitution petition filed on 05/09/2013 supported by Death Certificate of the Complainant Prasanta Ghosal who expired on 03/04/2023 is allowed. The Complainant Prasanta Ghosal be substituted by his wife Purnima Ghosal and amend the Cause Title accordingly.

The case is at the stage of argument pending since 2012.

The Commission therefore decides to dispose of the case right now on the basis of materials available on record.

The Complainant’s case is that his only son Arijit Ghosal occasionally felt some sorts of  in-sensation in right leg and after consultation with the Doctor at BSMCH, Bankura and thereafter with private Doctor Saral Roy, Neurologist at Durgapur who advised for MRI and referred the patient to Bangur Institute of Neuro Sciences, Kolkata/O.P. No.1 for further consultation, management and treatment. After collecting MRI report from Woodland Nursing Home, Alipore, Kolkata the Complainant visited O.P. No.1 Hospital where Dr. A.K. Chowdhury, Neuro Surgeon/O.P. No.2 examined the Complainant’s son and consulted MRI


Page: 2

report and thereafter the victim patient was admitted in O.P. No.1 Hospital on 10/02/2011 under the care and supervision of O.P. No.2 and the case was diagnosed as D1 D2 D3 Spinal SOI and he was operated accordingly and discharged on 24/02/2011. Later due to some post operative complication the victim patient again visited O.P. No.2 on 24/03/2011 but he was casually treated rendering no medical service. Thereafter the victim patient was admitted at CMCH, Vellore on 14/07/2011 and discharged on 06/12/2011 with remarkable recovery. The Complainant has therefore filed the instant case against O.P. No.2 and Others  with allegation of medical negligence and deficiency in service claiming compensation of Rs.18 Lakh against O.P. No.2 and Rs.1 Lakh against O.P. No.1. O.P. No.3/Principal Secretary, Department of Health & Family Welfare, W.B. is added on record.

O.P. No.1 contested the case by filing a written version denying all the material allegations made in the petition of complaint pleading for no medical negligence and deficiency of service in this case and also taking the maintainability issue.

O.P. No.2 vehemently contested the case by submitting written version at length taking the plea of maintainability issue and denying all the material allegations made in the petition of complaint pleading for no medical negligence and no deficiency of service in this case.

O.P. No.3 did not file any written version.


-: Decision with reasons:-

Having regard to the facts of the case, contention, submission and documents on both sides   the Commission finds from the record that earlier the maintainability issue was raised on behalf of the O.P. No.2 which was rejected by this Commission by Order dated: 07/08/2012 and the State Commission, West Bengal in R.P. No.133/2012 dismissed the Revision Petition by order dated: 03/09/2012 upholding the impugned order dated: 07/08/2012 holding that the decision of the Supreme Court reported in AIR 1996SC550 (India Medical Association Vs. VP Shantha & Ors) is not applicable to the present case as the service rendered free of charge to patient by Doctors / Hospitals whether non-Government or Government who render free service to the poor patient but charge fee for services rendered to other patients would, even though, it is free, not be excluded from deficiency of service under the Consumer Protection Act. Be it mentioned here that the said Order of the State Commission is not on record but it has been downloaded from the official website and kept with the record.



Page: 3

Thereafter the case proceeded for argument. O.P. No.2 filed written argument on 29/06/2017. During this long period the case could not be disposed of for various reasons whatsoever. The Commission has taken into consideration the entire facts and circumstances wherefrom it could gather that there is no material on record to show that O.P. No.1 Hospital is such a Government hospital where medical service is rendered partly free of charge and partly  on payment of charges as held by the Hon’ble State Commission in R.P. No.133/2012. Not a single paper / document is forthcoming from the side of the Complainant wherefrom it could be ascertained that O.P. No.1 or O.P. No.2 rendered medical service  to the victim patient on payment of any charges or fees. Admittedly O.P. No.1 is purely a Government hospital rendering medical service to the patient(s) irrespective of poor or rich free of charges having no scope and system to provide medical services to the patient(s) on payment of charges and for that reason the Complainant could not produce any receipt of charges issued by O.P. No.1 Hospital or by O.P. No.2 Doctor.

If we carefully go through the celebrated decision of the Supreme Court (Indian Medical Association Vs. V.P. Shantha & Ors) reported in AIR 1996 SC 550 it will be clearly found that the Apex Court has classified in Clause – 9 & 10 at Para-55 of the decision where it is specifically classified in Clause-9 that service rendered at a Government hospital / Health Centre / Dispensary where no charge whatsoever is made from any person availing the service and all patients rich and poor are given free services is outside the purview of the expression ‘service’ as defined in the Consumer Protection Act/. But Clause-10 has classified such services where service rendered at Government Hospital / Health Centre /Dispensary on payment of charges and also rendered free of charge to other persons availing such service would fall within the ambit of service as defined in the Consumer Protection Act.

But Hon’ble State Commission while deciding the aforesaid Revision Petition has applied Clause-10 of the said decision of the Apex Court without any basis or material as to the fact that the charge  has been levied from victim patient either by O.P. No.1 or by O.P. No.2 against the medical service rendered to the victim patient or O.P. No.1 has the scope and scheme of charging fees to certain categories of patient who avails services from that hospital.

It is a well settled principle of law that a judgement passed without taking into consideration the actual position of law or any case law is Judgement Per Incuriam which is not binding on this Commission.

The instant case is fully covered under Clause-9 at Para-55 of the said V.P. Shantha’s case and not Clause-10 of the said decision as held by the Hon’ble State Commission in the aforesaid Revision Petition.


Page: 4

Without going into the merit of the case the Commission can safely decide its fate to the effect that the instant case is not maintainable as because the service rendered to the victim patient at the instance of O.P. No.1 / O.P. No.2  is a free service which will not come within the definition of service under the Consumer Protection Act and as such recipient of such service cannot be considered as a Consumer under the said Act.

From that legal point of view the Complainant is not a Consumer under the Consumer Protection Act and the instant case filed against the O.P.s in such capacity is not maintainable for the reasons stated above.

The maintainability issue strikes at the root of the jurisdiction of this Commission and as such the Commission is helpless to go into the merit of the case to decide its fate without deciding the maintainability issue. The case therefore fails.                                                                                                                                              

Hence it is ordered…….

That the case be and the same is dismissed on contest on maintainability point.

Liberty is however given to the substituted Complainant Smt. Purnima Ghosal to move the competent Court for appropriate relief to which Section-17 of Limitation Act shall apply.

Both parties be supplied copy of this Order free of cost.


  ____________________                _________________              _________________


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