Haryana State vs Guddi

THIS revision is directed against the order dated 28.5.2001 of Consumer Disputes Redressal Commission Haryana, Chandigarh dismissing appeal against the order dated 15.6.1998 of a District Forum whereby petitioners/opposite parties were directed to pay total amount of Rs. 1,43,000 to the respondent/complainant.

FACTS giving rise to this revision lie in a narrow compass. Respondent, who did not want another child, underwent sterilization operation on 3.2.1994 in General Hospital, Hissar. Respondent alleged that she was told by petitioner No. 2/opposite party No. 2 that her operation was successful. She paid amount of Rs. 200 as consideration for the operation to petitioner No. 2 in addition to paying token money to petitioner No. 1/opposite party No. 1 for registration. It was further alleged that respondent again became pregnant and gave birth to a female child on 6.9.1997. In General Hospital, Hissar, indoor facility is available to both male and female patients and they are treated for consideration in private wards. By referring to the decision in Indian Medical Council v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=1995 (6) SCC 651, it was stated that respondent is a ''consumer'' within the meaning of Consumer Protection Act, 1986 (for short the Act). Alleging deficiency in service, respondent filed complaint claiming amount of Rs. 2,16 lakh being the expenses for upbringing the female child upto the age of 18 years, Rs. 5,000 spent on delivery and Rs. 79,000 towards physical and mental agony against the petitioners. Petitioners contested the complaint by filing written versions. By way of preliminary objection, it was alleged that sterilization cases are done under the National Family Welfare Programme and money including diet, etc. is paid by the Government of India and respondent being not a ''consumer'', the complaint is not maintainable. On merits, it was admitted that sterilization operation of the respondent was done on 3.2.1994. Same was performed by Dr. R.S. Dalal, then medical officer, Government Hospital Hissar, who has done thousands of cases successfully. Amount of Rs. 130 was paid to the respondent after the operation was over. It was denied that amount of Rs. 200 was charged from the respondent. It was alleged that General Hospital, Hissar is 200-bedded Hospital having outdoor and indoor facilities. In case of FW acceptors, cases are treated free of cost under the said programme. It was denied that any claim was made by Dr. Dalal regarding success of the case. It was further stated that in case the respondent did not want child, she should have taken the services of MTP in Government Hospital, Hissar free of cost. Liability to pay the claimed amount was emphatically denied.

We have heard Mr. J.B. Mudgil for petitioners and Ms. Sonia Sharma, Amicus Curiae for respondent.

TO be noted that against District Forum''s order, petitioners filed FA No. 18 of 1998 while respondent FA No. 1607 of 1998. In latter appeal, the respondent sought enhancement of compensation. Appeal filed by the petitioners was dismissed without examining the District Forum''s order observing that case was squarely covered by the decision in State of Haryana v. Smt. Shantra, I (2000) CPJ 53 (SC)=IV (2000) SLT 93=II (2000) CLT 152 (SC)=JT 2000 (5) SC 34. Appeal of respondent was dismissed holding that there was no scope for further enhancement of compensation. In this backdrop, merit of the order of District Forum (copy at pages 3-12) assumes significance. District Forum after noticing the submissions advanced by the parties learned Counsel, reproduced the conclusion at Serial No. (10) in para No. 55 in V.P. Shantha''s case (supra) which is as under: "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 service would fall within the meaning of the expression ''service'' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service 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."

In para 43 of the said decision, Supreme Court observed that medical practitioners/government hospitals/nursing homes and private hospitals/nursing homes fall in three categories(i) where services are rendered free of charge to everybody availing of these service, (ii) where charges are required to be paid by everybody availing of the service, and (iii) where charges are required to be paid by person availing of services but certain categories of persons who cannot afford to pay, are rendered service free of charge. After dealing with these categories separately, the Apex Court reached the conclusions as called out in above para 55. To be noted that District Forum without recording finding if the services in General Hospital, Hissar were provided free of charge and/or on payment of charges, jumped to the conclusion that respondent is a ''consumer'' falling in said category (10) above. In the absence of finding to that effect, the District Forum erred in awarding Rs. 1,40,000 treating the respondent as a ''consumer''. State Commission also fell in error in dismissing appeal filed by the petitioners relying on Smt. Shantra''s case. Orders of Fora below, thus, deserve to be set aside and case remanded to the District Forum for complaint being decided afresh on merits.

ACCORDINGLY, while accepting revision, aforesaid orders passed by Fora below are set aside and case remanded to the District Forum for complaint being decided afresh on merits after affording opportunity to the parties to lead further evidence, in the light of observation made in proceeding para of the order. No order as to cost. Parties will appear before the District Forum for direction on 4.11.2004. R.P. allowed.