DEBRAJ vs State of orissa

THE question of maintainability which is taken up as a preliminary point is disposed of as follows: It was urged by the learned Counsel appearing for opp. parties 3, 5 & 6 that for the purpose of determining as to whether the petitioners are consumers and in that matter whether the dispute raised by the petitioners is a consumer dispute within the meaning of the Act, the averments made in the application alone may be looked into. In other words, the question of maintainability of the case was required to be decided on the case pleaded by the petitioners alone without referring to the disputed questions of fact.

THE petitioner No. 1 is the father of deceased Padmalaya whose husband is petitioner No. 2. Petitioners 3 & 4 are the minor son and daughter of Padmalaya aged 3 years and 1 year respectively, who are represented through their father-guardian, the petitioner No. 2. THE petitioners have claimed compensation of Rs. 7,45,000/- for the death of Padmalaya alleging that she died due to the negligence of the treating physicians. According to the petitioners, Padmalaya was admitted to the Headquarters Hospital at Polangir for treatment of breathlessness with pain in chest on 6.5.1993. She was kept under the treatment of Dr. Jagannath Panda and Dr. Chittaranjan Das, who diagnosed heart disease to be "Anaemic heart patient". While in the hospital blood transfusion was given to her on 15.5.1992 and 18.5.1992 and she was also given some other injections. On 19.5.1992 at about 8 a.m. Dr. Jagannath Panda discharged her from the hospital though the same was protested by the petitioners and other attendants that she had not recovered fully by then. During the same night on 19.5.92 Padmalaya became restless and some erruptions all over her body appeared. Some parts of her body also turned bluish for which in the morning of 20th of May, 1992 it was reported to Dr. A.N. Mishra, A.D.M.O. who advised to take the patient to the Out-door. THE Doctor in charge of the Out-door prescribed some medicines and advised that if the medicines prescribed by him do not respond she should be admitted to the hospital again. As her condition again thereafter she was admitted to the hospital at about 1 p.m. on that day. It is alleged that according to the opinion of the Doctors, this deterioration of the patient was due to clotting of blood following the earlier blood transfusion. THE petitioners 1 & 2 insisted for referring the patient to V.S.S. Medical College & Hospital, Burla. But the treating Doctor (Dr. Jagannath Pande) declined to do so. As per the advice of the Doctor further blood for transfusion was arranged on 21.3.1992. But the same was not given to the patient. On 23rd of May she was given a bottle of salims mixed with other medicines. But it resulted in strong reaction with burning sensation all over the body. Dr. Pande then advised to take E.C.G. which was taken by Dr. Radheshyam Bhausink in the said hospital. Since the patient did not show any sign of improvement she was removed to V.S.S. Medical College & Hospital, Burla as, according to the petitioners, there was no co-operation from the authorities of Bolangir Hospital. At any rate, the patient reached Burla Medical at about 5 a.m. on 24.5.92 and she was under treatment of Prof. Bimal Kar. She was given treatment as prescribed by the Doctor and was ultimately removed to the Cardiology Department on 27.5.92. By that time both the hands of the patient were paralysed. By continuous treatment her left hand was almost cured, but right hand did not show much improvement. THEre was a suggestion for amputation of her right hand, but the same was not possible in view of the condition of her body, as per the opinion of the Doctors. From 8.6.92 the condition of the patient become very serious which, according to the Doctors'' opinion, was due to the clotting of the blood in the brain. Inspite of all treatments that were given thereafter, the patient breathed her last at about 10 p.m. on 9.6.92. The Doctors in the Headquarters Hospital of Bolangir who had treated the patient as well as the Superintendent of V.S.S. Medical College & Hospital, Burla have been impleaded as opp. parties as the petitioners'' case is that it is due to the deficiency of services rendered by these Doctors the valuable life of the patient was lost.

A counter affidavit has been filed by opp. parties 1 & 2 denying all the averments and allegations made in the complaint petition. Opp. parties 3, 4, 5 & 6 have also given their versions separately denying their liabilities. Apart from asserting that there was no negligence in the treatment given to Padmalaya and therefore, there was no deficiency of service, they have challenged the maintainability of this proceeding saying that the petitioners are not consumers and, therefore, it does not come within the purview of the Consumer Protection Act to be adjudicated by this Commission. In this back ground the question of maintainability was urged to be decided as a preliminary point.

THE main question in this connection which comes up for decision is as to whether the deceased-Padmalaya and for that reason the petitioners can be said to be consumers. THE word "consumer" has been defined in Sec. 2(d) of the Act, which is quoted below for ready reference: 2. (a) xxx xxx xxxx (d) "Consumer" means any person who - (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or.

(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person; (Explanation.-For the purposes of subclause" (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment."

This being a case of availing of services and not a case of purchase of goods Clause (ii) of Sec. 2(d)of the Act is relevant for consideration. In order that a person would be a consumer within the meaning of the aforesaid clause, he must be a person who has hired or has availed of any services for consideration. THE word "avail" means to draw advantage or to be benefitted. THE grammatical meaning of the expression "hire" is "to acquire temporary use of a thing or the services in exchange of payment", "to procure the use of services at a price", or "to grant temporary use of for compensation". Thus, in order to satisfy the test as required by the said sub-clause (ii) as person has to satisfy the test that he has availed of services or has hired services for consideration. It is no doubt correct that Padmalaya availed services in the hospital when she was admitted there. But in order to be a consumer it is further necessary that she had hired the services for consideration. THE expression "hired" as already stated involves an element of payment of consideration. It has been further emphasized by use of the word "consideration" in the said definition. Thus, it is required to be examined as to whether a patient admitted for treatment in a Government hospital is a consumer within the meaning of the definition given in the Act. Admittedly Padmalaya or the present petitioners on her behalf do not allege to have paid any consideration in the Government hospital either at Bolangir or at Burla for the treatment carried on in these hospitals. This question came up for consideration before the National Consumer Disputes Redressal Commission in a case reported in I (1992) CPJ 259 (NC) where it was held that persons who availed themselves of the facilities of the medical treatment in Government hospitals are not consumers and the said facilities offered in Government hospitals cannot be regarded as service "hired" for "consideration". Hence, no complaint under the Act can be preferred either by any such persons. Though the National Commission expressed its concern and anxiety that people are often unable to get prompt, competent and courteous medical care in State run hospitals and further expressed that it is open to the Government to enact any clarificatory amendment of the Act in this behalf. It has not been done so far. The Madras High Court in a decision reported in I (1994) CPJ 509 (DB) (Dr. C.S. Subramanian v. Kumarasamy & Anr.), however was of the opinion that a patient who undergoes treatment under a medical practitioner or an hospital by way of diagnosis and treatment both medicinal and surgical cannot be considered to be a ''consumer'' within the meaning of Section 2(1)(d) of the Act. Their Lordships, however, did not find much difference between the obligations undertaken by a medical practitioner in private practice and those imposed on his colleagues and counterparts working in the hospitals run and administered either by the Government or local authorities or philanthropic bodies. This is because all medical practitioners owe a duty to their patients to exercise reasonable care in carrying out their professional skills of diagnosis, advice, treatment or surgery. Their Lordships, however, did not consider the question as to whether the treatment in a hospital where no consideration is paid for the services rendered to the patient would attract the definition ''consumer'' as their Lordships'' view, as already stated, is that the medical services do not come within the definition of ''service'' given in Section 2(1)(o) of the Act. The petitioners, however, relied on a decision of the Orissa State Consumer Disputes Redressal Forum reported in II (1993) CPJ 633 (Smt. Sukanti Behera v. Dr. Sashi Bhusan Rath & Another) where it was held that beneficiary of a service rendered for which the person rendering the service is paid for, is also a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. It was further held mat the State Government having paid the Doctor in a Government hospital to render the service to the people who attend the hospital, the persons who are attending the hospital, for treatment are beneficiaries of the service rendered by the Doctor and, therefore, held that the patients in Government hospitals are also consumers. This decision of the State Commission, however, did not notice the view of the National Commission discussed earlier. It is true that a Doctor in a Government hospital is paid for the services rendered by him. But the patient has neither hired the service nor the service rendered is for consideration paid by him. The view expressed by the Commission in the said decision with due respect is not acceptable by us for the reason that the necessary element in order to be a consumer as defined in the Act has. neither been discussed nor decided. The clause "includes any beneficiary of such service" has not been read in context of the following expression "other than the person who hires or avails of the services for consideration paid, promised or partly paid or partly promised etc." By the aforesaid expression it may include the present petitioners to step into the shoe of a consumer even though they did not avail of the services, but it would not have the effect of ignoring the element of payment of consideration from the definition clause.

FROM the aforesaid discussions we are of the view that a patient treated in a Government hospital would not be a consumer within the meaning of the definition given in the Consumer Protection Act. It, therefore, follows that the dispute raised by the petitioners would not be a consumer dispute and, therefore, this case is not maintainable. We accordingly dismiss the same as not maintainable. It is open to the petitioners to take recourse to the appropriate forum in accordance with law. Complaint dismissed.