ANTHONY DASS A vs EX.ENGINEER, EARTH MOVERS DIVISION, BEML, K.G.F.

IN this complaint, under Section 17 read with Section 12 of the Act, the complainant has sought compensation in a sum of Rs. 5,00,000/- from the opposite party alleging that the opposite parties had committed negligence and deficiency in service in giving treatment to his child Tony Rajeshwari.

THE complainant is an employee of B.E.M.L. Opposite party No. 1 is the Director of B.E.M.L. Opposite party Nos. 2 and 3 are the doctors working in BEML Medical Centre, K.G .F. It is the case of the complainant that he is an employee working in B.E.M.L., K.G.F., as a Senior Accounts Assistant. B.E.M.L. Medical Center, KGF is exclusively meant for rendering medical services to the employees of BEML. The complainant further averred that a sum of Rs. 7.50 was being deducted every month towards CMA from the complainant''s salary as a statutory deduction for the medical facilities and services availed by the complainant and his family members.

The complainant nextly averred that on 23.5.1992, he took his daughter Tony Rajeshwari to the said BEML Medical Centre for treatment of certain ailment. Opposite party Nos. 2 and 3 did not admit the daughter of the complainant for long time. The complainant and his child was made to wait from 9.45 a.m. to 2.45 p.m. She was not given any medicine but at about 3.20 p.m. all of a sudden opposite party No.2 reported to the complainant that his child died due to heart failure. The complainant averred that the child was not suffering with any serious illness. The child died due to gross negligence on the part of opposite party Nos. 2 and 3. So, on the basis of these averments, the complainant has sought compensation from the opposite parties, as referred above.

THE opposite parties filed their version and denied having committed any negligence in giving treatment to the child. THE opposite parties further averred that having regard to the fact that the complainant had availed free medical services; so, the complainant cannot be classified as a ''consumer. under the provisions of the Act. The learned Counsel for the parties were heard regarding the maintainability of the complaint.

THE complainant is an employee of BEML, K.G.F. THE said BEML runs a Medical Center known as B.E.M.L. Medical Center, K.G.F. for rendering medical services to its employees. Opposite party Nos. 2 and 3 are the medical officers working in the said Medical Center. The complainant at Para (5) of the complaint has averred thus: "A sum of Rs. 7.50 is deducted every month towards C.M.A. from the complainant''s salary as a statutory deduction for the medical facilities and services availed by the complainant and his family."

It is clear from this averment that the complainant was making certain contribution for availing the medical services. The Medical Services rendered therein were free services except the fact that a nominal sum of Rs. 7.50 was deducted every month from the salary of the complainant. As per the averments contained in the complaint, it is not the case of the complainant that he had ever made payment of any consideration for medical services rendered by the opposite parties. He has also not stated that he did make payment of any consideration when he went to the Medical Center on 23.5.1992 for the treatment of his child Tony Rajeshwari.

THE learned Counsel for the opposite party having regard to this fact submitted that the services availed by the complainant were free services, and so, the complainant cannot be classified as a ''consumer'' under the provisions of Section 2(1)(d)(ii) of the Act.

THE National Commission in Consumer Unity & Trust Society v. THE State of Rajasthan & Ors., reported in I (1992) C.P.J. Page 259 (NC), while considering such an aspect of the matter at para (35) of its judgment observed thus: "THE short point remains: how do we treat the contributors to the CGHS and those who occupy beds in ''paying wards'' in Government hospitals. In our opinion, the contribution to the CGHS should be taken to be in lieu of free treatment in the diverse dispensaries, as well as the free provision of medicines from these dispensaries."

The Hon''ble Supreme Court while considered this aspect of the matter also considered the provisions of Section 2(1)(o)(c)(d) and (g) of the Act in Indian Medical Association v. V.P. Shantha and Ors., reported in (1995) Vol. 16, Supreme Court Cases, Page 651, and at Para (43) of the judgment observed thus: Para 43:-"The other part of exclusionary clause relates to services rendered ''free of charge''. The medical practitioners, Government hospitals/nursing homes and private hospitals (hereinafter called ''doctors and hospitals'') broadly fall in 3 categories - (i) where services are rendered free of charge to everybody availing of the said services; (ii) where charges are required to be paid by everybody availing of the services; and (iii) where charges are required to be paid by persons availing of services but certain categories of persons who can not afford to pay are rendered free of charges. There is no difficulty in respect of the first two categories. Doctors and hospitals who render service without any charge what so ever to every person availing of 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 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 falls within the ambit of Section 2(1)(o) of the Act." Therefore, it is clear that the payment of a token amount for registration or a token contribution made cannot be classified as a ''consideration'' for availing the services and such services would not fall within the ambit of service under Section 2(1)(o) of the Act.

In the present case, as well, as per the averments contained in the complaint itself, it is clear that the complainant was availing the medical services from the opposite parties free of charge, and so making payment of a token contribution, would not amount to payment of consideration for services. So, having regard to these facts, the complainant cannot be classified as a ''consumer'' and we are having regard to these facts, constrained to hold that the complaint is untenable.

IN the result, therefore, this complaint fails and it is dismissed. The parties are directed to bear and pay their own costs. Complaint dismissed.