GOURI SHANKAR PADHI vs State of orissa

-THE State Consumer Disputes Redressal Commission, Orissa dismissed the complaint on preliminary objection that the complainant appellant a Central Government Employee working in the State of Orissa was not a consumer in respect of treatment of his daughter in a Capital Hospital run by the State of Orissa, for medical services were rendered free of charge in the hospital, and as such, it would not be covered under sub-para 10 of para 55 of judgment in Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC)=I (1996) CLT 81 (SC)=1995 (6) SCC 651. Feeling aggrieved by the order, the complainant has filed the present appeal.

IT is alleged by the complainant that on 2.7.1992, Abhilasha the daughter of the complainant was perfectly normal in the morning hours and was watching T.V. Around 3 o''clock she suddenly developed some pain in her stomach manifested in the form of vomiting and loose motions. The complainant''s son Dr. S.S. Padhi a doctor, administered preliminary symptomatic treatment, by giving medicines to her to stop lose motion and vomiting and the same was followed by intravenous glucose saline. IT is also alleged that thereafter at about 5.30 p.m. Dr. G.C. Nayak, the Medicine Specialist of Capital Hospital was contacted by the complainant''s son Dr. S.S. Padhi and one Shri Anand Chandra Mishra, Lecturer in Botany, who was residing nearby and further treatment to Abhilasha was given around 6 p.m. as was advised by Dr. G.C. Nayak. The treatment as suggested by Dr. Nayak improved the condition of the patient. The vomiting was stopped by 8 p.m. and lose motion had stopped at about 7.30 p.m. Dr. Nayak visited the patient around 8 p.m. and remained with the patient for about an hour. Thereafter Dr. Nayak advised for shifting the patient to the Capital Hospital for further treatment and to continue administration of necessary fluids such as glucose saline and potassium solution, etc. The patient was accordingly taken to the Capital Hospital and reached the Casualty OPD by about 9.45 p.m. IT is alleged that at that time the patient was fully conscious and was able to talk normally and intelligently. Dr. Amiya Kumar Mishra, respondent No. 3, the doctor on duty in the Casualty, enquired and ascertained the ailment of the patient from Dr. S. S. Padhi who persuaded Dr. Mishra to give glucose saline and potassium drips as well as mephentine immediately as dehydration had ensued and blood pressure had fallen very low. But the OP No. 3, Dr. Mishra refused to accept the aforesaid suggestions and behaved roughly with Dr. S.S. Padhi and expressed his annoyance saying that he was not to follow the advice of other doctors. Thereafter, the patient developed breathlessness and Dr. S.S. Padhi then suggested for administration of oxygen and Dr. Mishra simply ignored such instruction. Dr. Mishra for the first time then checked the blood pressure of the patient at 10.20 p.m. and found that the blood pressure was 60/40 and the pulse rate was 90. According to the complainants the symptoms showed the serious condition of the patient and urgent necessity for immediate treatment. But Dr. Mishra merely noted down the line of treatment to be given but did not give any treatment to increase the blood pressure and to stabilise the patient which according to the complainants was necessary at that stage. Instead Dr. Mishra, the respondent No. 3 directed to send the patient to the Infectious Diseases Ward (Cholera Ward) where there was no facility for immediate treatment and which was situated at a distance of km. away almost at the other end of the hospital. According to the complainants, there was no necessity for sending the patient to the Infectious Diseases Ward and she should have been treated either in the Casualty or Medicine Ward. IT is alleged that delay in administering treatment and callousness of OP No. 3 in giving the proper treatment to the patient at that stage was the reason for the unfortunate death of the daughter of the complainants. The complainants have alleged that the Cholera Ward was very unhygienic and there was want of proper ventilation too. On arrival at the Cholera Ward the companions of the patient requested the nursing staff on duty to immediately give oxygen to the patient but they refused to do so saying that they shall wait for the doctor to come. Saline drip was however attempted to be given but did not succeed because of poor light inside the ward. The patient was then brought to another place in the ward and the saline drip was given there. She was not given oxygen and potassium fluid by the doctor on duty in Cholera Ward. At about 11.10 p.m. Dr. Suchitra Das, the respondent No. 4 came and on examination noted that pulse was not felt, B.P. was not recordable and the patient had tachycardia and distension in the abdomen. She prescribed a fresh set of medicines without caring to see the medicines that had already been prescribed by the previous doctors. Dr. Suchitra Das then sent for the Medicine Specialist and administered decadron injection (not reflected in the Bed Head Ticket). Thereafter she immediately left the place even without waiting for the Medicine Specialist to reach there. She did not agree to give oxygen though the patient was having breathing difficulty. The condition of the patient was not fit for administration of decadron given at that stage without first stabilising the condition of the patient by giving necessary fluids such as saline, potassium, glucose, etc. They have also alleged that sufficient fluid could have been introduced to the body of the patient by venefication and by further improved techniques. But nothing was done. Dr. R.N. Mishra, the Medicine Specialist arrived at about 11.30 p.m. a few minutes after the departure of Dr. Suchitra Das, the respondent No. 4 examined the case. But by then as recorded by him the pulse had lapsed, the heart beat had stopped and the pupils dilated and the respiration had stopped. He administered oxygen and started cardiac message but the patient did not revive. In another ten minutes time the patient was declared dead by Dr. R.N. Mishra at about 1 1.40 p.m. This led to the filing of the complaint.

The State of Orissa, CMO and Superintendent of the Capital Hospital denied all the allegations. A lot of treatment was given to the daughter of the complainants but even after taking all possible care her life could not be saved. There was no negligence of respondents attending doctors, O.P. Nos. 3 and 4 in the matter.

DR. A.K. Mishra, respondent No. 3 contested on the ground that seeing the actual condition of the patient, treatment given to her was proper, adequate and justified. Dehydration, which had set in, could not be recouped during short period. Even in Departmental Inquiry, the conclusion arrived was that by the time the patient was admitted she was in an irreversible shock. Dr. Suchitra Das contested the matter on similar grounds and alleged that at the time she examined the patient, her condition was serious. Oxygen was given to the patient before her arrival. It was temporarily discontinued. It was revived as per her advice.

ALL the opposite parties claimed that the complainants were not consumers and this case was not maintainable in view of the decision of the Supreme Court in the case of Indian Medical Association v. V.P. Shantha & Ors. (supra). The State Commission has held that the Capital Hospital was not a service provider within the ambit of Section 2(1)(o) of the Consumer Protection Act and within the meaning of sub-para 10 of para 55 of the judgment in Indian Medical Association v. V.P. Shantha & Ors. (supra). The complainant No. 1 father of the deceased child Gouri Shankar Padhi being an officer belonging to Indian Forest Service is entitled to free treatment in the hospital and so his family members. We have heard the parties Counsel and gone through the record. In order to decide the aforesaid preliminary objections in the light of the contentions of the parties, it is desirable to reproduce hereinbelow meaning of the words ''Medical care'', ''Medicare'' and ''Treatment'' as per Black''s Law Dictionary: "Medical care"-The term ''"Medical care" is defined broadly in the Internal a Revenue Code (I.R.C. 213) and more comprehensively in the regulations. It includes expenses for doctors, nurses and other medical services, as well as payments for operations, hospitals, institutional care. The basic test for the allowance of medical deductions is whether the expense was incurred and paid primarily for the prevention or alleviation of a physical or mental defects or illness. "Medicare" - Federal Act (Health Insurance for the Aged Act) to provide hospital and medical insurance for aged persons under Social Security Act. ''Treatment'' - A broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.

(Emphasis supplied)

AT this stage now one may advert to the definition of "Service" under Section 2(1)(o) of the Consumer Protection Act along with conclusions of the Supreme Court in sub-para 10 and 12 of the paragraph 55, which read as under: "2(1)(o). ''Service'' means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing cons-truction, entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service."

"55(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."

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 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.

(Emphasis supplied)

IN Laxman Thamappa Kotagiri v. G.M., Central Railway, III (2006) CPJ 6 (SC)=II (2005) SLT 387=2006 CTJ 1076 (SC), a similar question arose. The Supreme Court noted that in State of Orissa v. Divisional Manager, LIC & Another, II (1996) CPJ 31 (SC)=1996 (8) SCC 655 a contrary view that a Government servant who was granted medical facilities was in fact enjoying free service, was taken. Thereafter, in para 7 and 8, following observations were made: "7. Since it is not in dispute that the medical treatment in the said hospital given to employees like the appellant and his family members is part of the conditions of service of the appellant and that the Hospital is run and subsidised by the appellant''s employer, namely, the Union of INdia, the appellant''s case would fall within the parameters laid down in paragraph 55(12) of the judgment in V.P. Shantha''s case and not within the parameters of either para 55(6) or para 55(9) of the said case.

It is true that the decision in State of Orissa v. Divisional Manager, LIC and Anr. (supra), relied upon by the learned Counsel for the respondents appears to hold to the contrary. However, since the decision is that of a smaller Bench and the decision in V.P. Shantha''s case was rendered by the Larger Bench, we are of the opinion that it is open to this Court to follow the Larger Bench which we will accordingly do".

(Emphasis supplied) Consequently, a Government servant who was granted medical facilities as a part of conditions of service, along with his family would be covered by parameters laid down in paragraph 55(12) of V.P. Shantha''s case.

In this regard it would also be desirable to refer to the memorandum issued by the Ministry of Home Affairs. There is no dispute about the fact that a copy of the letter No. 1311 dated 12.1.1989 issued by the Under Secretary to the Government of Orissa, Health. F.W. Department addressed to the Director of Medical Education and Training, Orissa, Bhubaneswar. The copy of this letter is reproduced hereunder: "Sub: Fees payable by the patients for Pathological, Bacteriological, Radiological examinations, etc. and occupying Nursing Home and Special Cabin, etc. I am directed to say that the question of revision of room rent for occupying the Nursing Homes Special Cabins, Cottages, and Cabins and revision of charges for Pathological, Bacteriological, and Radiological examinations, etc. in Medical College Hospitals was under consideration of Government for some time past and Government, in supersession of their previous orders have been pleased to revise the rates of the fees payable by the patients for Pathological, Bacteriological and Radiological examination, etc., and rent for occupying Nursing Homes and Special Cabin, etc. in the Medical College Hospital as detailed in the statement enclosed, while charging the fees rates at revised rate the following procedure may be adopted. (i) Diagnostic tests will be conducted free of cost in the case of patients who are too poor to pay for the same. Those whose monthly income is less than Rs. 1,000 will be exempted from payment subject to production of income certificate either from the Tahsildar or the E.D.C. (ii) The investigation will also be free in emergency cases because patients who are brought to the casualty may not have ready money available with them even though they may be well-off. (iii) Routine examinations of Stool, Urine, Sputum and Blood would be free. Routine blood examination means total R.B.C. count and Malaria parasite, total and differential R.B.C. count and haemoglobin percentage. In respect of other investigations charges will be levied as indicated in the enclosed statement. These rates will be the same both for indoor and out-door patients.

The Government servants and other functionaries, who are entitled to treatment at Govern-ment cost will not be charged any fees if they produce neces-sary evidence from the competent authorities that they are Government employees. 3. These revised rates will come into effect from the date of issue of this order. 4. The entire receipts on this account should be credited to the Government Account under the "Head-0210-Medical & Public Health-01-Urban Health Services -020-Receipt from patients for hospitals and dispensary Services (A) Fees from outdoor and in-door patients (B) Other fees. 5. The Accountant General, Orissa is being informed."

THE State Commission has also noticed that the matter from the Letter No. 7/26/61-AIS (III) dated 23.12.1961 provides that reimbursement of medical expenses will be admissible if a member of the family of an All India Service Officer is sent for treatment in a Government hospital only, outside the State as provided under the Proviso to Rule 7(1)(c). It is thus evident that the officer of Indian Forest Service and the family of the appellant was entitled to be treated in Government hospital and in case he or his family was treated in any private hospital, the appellant was entitled for reimbursement. These kinds of provisions are prevalent for the Central as well as State Government Employees in order to take care of health of the Government servant need Medicare and Health Services for employees is recognised throughout the world. Federal System of Health Insurance for people over 65 years of age in USA and Canada and in Australia a national health-care scheme financed by taxation are noticeable. This medical care is provided in order to ensure efficiency of not only of the Government employee but also his family members to ensure that he pays due attention to his work without any distraction on account of illness of one or the other member of the family. This is in lieu of the services rendered by him.

IN the aforesaid light we must note the submissions made by the Counsel for the appellant that in case of treatment of an All INdia Service Officer and his family members in any private hospital, he would get even reimbursement in certain circumstances unlike other patients in the Government hospitals and he and his family members were required to be treated as paying patients and, as such, are covered in the definition of ''consumer''. Along with the aforementioned letter of the Under Secretary of the Health Department to the Government of Orissa has appended a very detailed list of changes for various kinds of investigations including Microbiological, Immunological and Serological investigations, Non-Invasive Techniques, Cardiology, Radio-Diagnosts and Isotope Studies, Respiratory Function Tests and other miscellaneous investigations such as Nephrology, Haemodialysis, Ultrasound Nursing Home, Special Cabin and Cabin and Cottage, operations etc. If we go by these rates, it cannot be said that these are not the charges charged by the respondent hospital. If we consider the matter from this point of view, the services rendered by the respondent hospital would fall within the ambit of ''service'' under Section 2(1)(o) of the Consumer Protection Act. The definition of 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. The State Commission has taken the view that no charge is leviable for treatment of a patient on the basis of routine pathological examination of a patient or for occupation of a Nursing Home of Special Cabin by the patients. Cardiology, Nephrology, Radio-Diagnosts and Isotope Studies, Respiratory Function Tests, etc. are part of treatment. The word ''treatment'' has to be considered in the light of the definition of the words medical care, health and treatment broadly. Accordingly, the observations of the State Commission to the effect that Pathological and charges of Nursing Home are not part of the treatment could not be accepted in the above circumstances.

THERE is yet another aspect. The Capital Hospital is being run by the State Government of Orissa and not by the Central Government. The complainant being Central Government employee is rendering services to the Central Government and not to the State Government. Apparently, medical care and treatment provided may not be in lieu of the services rendered to the State of Orissa. However, we feel that it would have been better if such an argument was not raised. Firstly, if the hospital charges even for cabin and rooms apart from other usual medical charges, it could not be said to be a hospital rendering free medical services. Secondly, the Central Government gives different kinds of grants, etc. to the State Governments and if in lieu thereof it expects that its employees are treated in the hospital run by the State Government, it could not be said that the Orissa Government would not provide Medical services to the employees of the Central Government and in providing health services available in the State, Central and State Government employees would be dealt with differently and employees of Central Government would not be provided on the same pattern as they are being provided to public in general, on payment of charges, payable by the patient.

FOR the aforesaid reasons, we feel that the complainant is a ''consumer'' and the impugned order passed by the State Commission dismissing the complaint on this preliminary objection on the point of maintainability cannot be sustained by any stretch of imagination. Since the parties have failed to give complete evidence due to preliminary objection before the State Commission, it is desirable to give both the parties an opportunity of filing affidavit evidence and being heard on merits.

Accordingly, for the aforesaid reasons, the impugned order is set aside and the matter is remitted to the learned State Commission for deciding the matter afresh after giving both the parties opportunity to file affidavit evidence, cross-examination by serving interrogatories and of being heard on the points of deficiency in service and amount of compensation in accordance with law. Both the parties are directed to appear before the State Commission on 18.12.2006 and may file affidavit(s) evidence, etc. accordingly.

A copy of this order may be sent to the parties. Ordered accordingly.