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2013 DIGILAW 288 (JK)

S. Kirti Singh v. Principal Medical College

2013-05-09

BANSI LAL BHAT, MUZAFFAR HUSSAIN ATTAR

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Muzaffar Hussain Attar, J. 1. The appellant, who was a Stock Assistant in the Animal Husbandry Department, it is stated at Bar, has retired on superannuation, met with an accident on 4th November, 1997 and sustained multiple injuries and compound fracture in his left leg. The appellant was shifted to Government Medical College, Jammu on the same day. His leg was plastered and after two weeks when the plaster was removed, it was found that the fracture had not healed. He was advised to undergo surgery of his Kneecap. Acting on the advice of the Doctors, the appellant volunteered to be surgically operated upon. 2. In his claim petition before the Jammu and Kashmir State Consumers Protection Commission, Jammu (for short, "the Commission"), he claimed that he had purchased surgical gadgets for an amount of Rs.5290/-. It is also claimed that on third day after he was surgically operated upon, septic started oozing out when the dressing was changed. One of the Doctors namely, Dr. Hardas Singh Sandhu after examining appellant was of the opinion that the plate, which was inserted, was broken and that Kneecap was also removed which was never required. The appellant had to undergo one more operation, so as to enable him to have movement of his leg. The appellant was surgically operated upon at Amritsar, where Kneecap was implanted. It is also claimed that it is because of the negligence of the Doctors in Government Medical College, Jammu that the appellant had suffered and, accordingly claim petition was filed seeking compensation. 3. In the objections filed by the respondents, it was stated that the Commission had no jurisdiction to entertain the claim petition. 4. In view of the pleadings of the claim petition, the Commission held that the provisions of the Jammu and Kashmir Consumers Protection Act, 1987 (for short, Act of 1987) are not attracted to the facts of the case. The Commission vide order dated 2nd December, 2003 dismissed the complaint holding that the Commission had no jurisdiction to hear the complaint and decide the same. 5. It is this judgment which is called in question in this Civil Miscellaneous Ist Appeal. 6. We have heard learned counsel for the parties. 7. The Commission vide order dated 2nd December, 2003 dismissed the complaint holding that the Commission had no jurisdiction to hear the complaint and decide the same. 5. It is this judgment which is called in question in this Civil Miscellaneous Ist Appeal. 6. We have heard learned counsel for the parties. 7. Learned counsel for the appellant referred to and relied upon the judgment of the Hon'ble Supreme Court in case titled "India Medical Association, Appellant v. V.P. Shantha and ors., respondents" reported in AIR 1996 Supreme Court 550 and submitted that though Government hospital was providing free medical services, but services were also being provided by charging the patients. It was contended that hospital and its authorities would come within the purview of the Act of 1987. 8. It is admitted by learned counsel for the appellant that the appellant was surgically operated upon in Government Medical College, Jammu where the services are being rendered free of charge. The contention of learned counsel for the appellant, however, is that since in the Chopra Nursing Home, which is attached to the Government Medical College, Jammu, services are being rendered to the patients by charging them, the provisions of the Act of 1987 would be attracted in view of the law laid down in India Medical Association's case (Supra). 9. In order to appreciate contention raised, paragraph 44 and 45 of the said judgment are taken note of; "44. The other part of exclusionary clause relates to services rendered "free of charge". The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories:- i) Where services are rendered free of charge to everybody availing the said services. ii) Where charges are required to be paid by everybody availing the services and iii) Where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges. 10. There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any degree whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. Doctors and hospitals who render service without any degree whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act." "45. The question for our consideration is whether the service rendered to patients free of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1) (o) of the Act. In our opinion the question has to be answered in the negative. In this context it is necessary to bear in mind that the Act has been enacted "to provide for the protection of the interests of "consumers" in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985. These guidelines refer to "achieving or maintaining adequate protection for their population as consumers" and "encouraging high levels of ethical conduct for those engaged in the protection and distribution of goods and services to the consumers". The protection that is envisaged by the Act is, therefore, protection for consumers as a class. The word "users" (in plural), in the phrase `potential users' in Section 2(1) (o) of the Act also gives an indication that consumers as a class are contemplated. The protection that is envisaged by the Act is, therefore, protection for consumers as a class. The word "users" (in plural), in the phrase `potential users' in Section 2(1) (o) of the Act also gives an indication that consumers as a class are contemplated. The definition of `complainant' contained in Section 2(b) of the Act which includes, under clause (ii), any voluntary consumer association, and clauses (b) and (c) of Section 12 which enable a complaint to be filed by any recognised consumer association or one or more consumers where there are numerous consumers, having the same interest, on behalf of or for the benefit of all consumers so interested, also lend support to the view that the Act seeks to protect the interests of consumers as a class. To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people who need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of service rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such service and who avail the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. We are of the view that in such a situation the persons belonging to "poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". We are, therefore, of opinion that service rendered by the doctors and hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression "service" as defined in Section 2(1) (o) of the Act. We are further of the view that persons who are rendered free service are the "beneficiaries" and as such come within the definition of "consumer" under Section 2(1) (d) of the Act." 11. The Hon'ble Supreme Court in India Medical Association's case (Supra) has stated that the Government hospitals/nursing homes and private hospitals/nursing homes broadly fall in three categories. The Hon'ble Supreme Court in paragraph 44 itself has stated that the Doctors and hospitals who render service without charge/fee, whatsoever, to every person availing the service would not fall within the ambit of "service" under Section 2(1)(o) of the Act. It is further revealed that the payment of a token amount for registration purposes only would not alter the position in respect of such Doctors and hospitals. In respect of second category, it was provided that the service is rendered on payment basis to all the persons so they would clearly fall within ambit of Section 2(1)(o) of the Act. It is further revealed that the payment of a token amount for registration purposes only would not alter the position in respect of such Doctors and hospitals. In respect of second category, it was provided that the service is rendered on payment basis to all the persons so they would clearly fall within ambit of Section 2(1)(o) of the Act. In respect of third category of Doctors and hospitals, it has been observed that they though provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. 12. The facts of this case would reveal that it is governed by Clause (i) of the category mentioned in paragraph 44 of the India Medical Association's case. The argument of the learned counsel for appellant that the claim of appellant has to be governed by Clause III, cannot be accepted for the reason that in respect of such institutions, the patients are primarily being rendered services on payment basis. It is only that free services are rendered to some poor people. The claim of learned counsel for appellant that Chopra Nursing Home is charging fee for rendering services would not change status of the Government Medical College, Jammu and will not be covered by Clause III, of paragraph 44 of the India Medical Association's case. The two categories are poles apart. 13. The institution described in Clause III do not suffer from any ambiguity. This clause of the institution is described in clear terms and admit of no ambiguity. Clause III specifically relates to those institutions which primarily render services on payment basis. 14. For our above stated reasons, this appeal being merit less is dismissed.