JAYA KUMAR JOLAD vs BHABHA ATOMIC RESEARCH CENTRE

This revision petition has been filed by the petitioner against the order dated 9.9.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ''the State

Commission'') in Appeal No.102 - Bhabha Atomic Research Centre Hospital & Ors. Vs. Mr. Jay Kumar Jolad by which, while allowing appeal, order of District forum allowing complaint was set aside.

Brief facts of the case are that deceased Jagdish Kumar Dundappa Jolad, father of the complainant/Petitioner was a retired Central Government employee with the Bhabha Atomic Research Centre (BARC). The Central Government has formulated Contributory Health Services Scheme (CHSS) for the Ex-B.A.R.C. employees. The retired employee, after contributing 1% of his basic at the time of retirement can avail health services. Accordingly, the deceased Jagdish Kumar Jolad is a contributory as a beneficiary of the said C.H.S.S. He slipped on 11.5.1998. As the pain did not subside, he lastly approached the Opponent No. 1/Respondent No. 1 on 17.5.1998. He was admitted under supervision of the Opponents No. 2 & 3 /Respondent No. 2 &

According to the opponents, he had a fracture of femur. He was alright till 21.5.1998. The opponent have done all necessary tests including hypertension, diabetes etc. But the opponent stopped treatment on diabetes from 19.5.1998. On 21.5.1998 at 16.30 hrs. the complainant i.e. the son was informed by the opponents that the patient is serious and has been shifted to ICCU. He died on 22.5.1998 at 00.20 hrs. No definite cause of death was ascertained by P.M. Alleging deficiency on the part of OPs, complainant filed complaint before District Forum. OPs resisted complaint and submitted that neither the complainant nor his father is a consumer as no consideration was paid. The opponent have provided C.H.S.S. services on behalf of the Central Government free of cost, whereas, the contribution is very meager at Rs.504/- per year paid by the deceased. There is no negligence in medical treatment and Antidiabetic treatment continued. On 21.5.1998 the patient had tea and biscuits. He had a large bout of vomiting and aspirated the contents into the trachea resulting in asphyxiation and worsening of his general condition. He was immediately attended by a team of doctors. Necessary treatment was given. Endotracheal intubation was done and the food matter was promptly sucked out. Respiratory passage was cleared and he was given oxygen. The conditions of the patient improved immediately. Anticipating ventilator care, he was shifted to ICCU and was put on ventilator with SIMV support. The patient shown improvement and responded to oral commands. However, at 11.10 p.m. the patient suffered cardiac arrest and in spite of resuscitation he could not be revived and declared dead. As the relatives left the patient, they were informed and accordingly informed for a definite cause of death a requirement of post mortem. But the complainant and relatives opposed, hence, there was a certifiable cause of death i.e. terminal cardio-respiratory arrest, pneumonia, diabetes-mellitus and accordingly, cause of death was certified and body was handed over to the relatives. All case papers were provided to the complainant. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint against OP No. 1 and directed to pay compensation of Rs.50,000/- to the complainant and dismissed complaint against OP No. 2 & 3. Appeal filed by OPs was allowed by learned State Commission vide impugned order against which, this revision petition has been has been filed. 3. Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioner submitted that inspite of proof of negligence on the part of OP No. 1, learned State Commission committed error in allowing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondents submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Learned District Forum dismissed complaint against OP No. 2 & 3 being Doctors and employees of Central Government and fastened liability only on OP No. 1 on principle of vicarious liability. When doctors were exonerated from any deficiency in service, OP No. 1 could not have been held liable on the principal of vicarious liability due to deficiency on the part of OP No. 2 & 3 and learned District Forum committed error in allowing complaint against OP No. 1.

Perusal of Contributory Health Services Scheme, framed by Department of Atomic Energy reveals that as per Clause 5.2, beneficiaries of the scheme shall be entitled to free medical attendance and treatment at the medical centres. Thus, it becomes clear that deceased got free treatment in OP No. 1 hospital. Hon''ble Apex Court in 1995 SCC (6) 651 - Indian Medical Association Vs. V.P. Shantha & Ors. laid down principle and held that - "(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression ''service'' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

When OP No. 1 was providing free service to all patients, merely by taking subscription for registration, complainant could not have invoked jurisdiction of Consumer Fora for deficiency of service. Learned Counsel for the petitioner submitted that hospital was rendering service on payment of charges as well as free, so services availed were within ambit of expression ''service'' as defined in Section 2(1)(o) of the Act. Learned Counsel for the petitioner could not place any evidence on record to substantiate that OP No. 1 was rendering services to some persons on payment of charges and in such circumstances, aforesaid argument is devoid of force.

Learned State Commission while allowing appeal, rightly observed as under: "8. The contribution taken on per name basis as per the prescribed rate is as per paragraph no.13 of the scheme. Looking to the scheme which is an health scheme offered by the Central Government to its employees, the contribution taken is a token amount to register the contributor for the entitlement of the said benefit. Therefore, Opposite Party No.1 hospital falls within the first category of hospitals, namely "where services are rendered free of charge to everybody availing the said services "as mentioned in paragraph no.44 of the judgement of the Apex Court in the matter of Indian Medical Association V/s. V.P. Shanta & Ors. (1986-96 Part II) National Commission & SC on Consumer Cases page 1569. Therefore,

Complainant is not a consumer and the present dispute is not a consumer dispute. Forum below even though referred to above referred decision of the Apex Court, failed to apply it properly to the facts of the case and committed an error of law. (9) Coming to the factual matrix of the case, there is no evidence at all to show that diabetic drug was discontinued. There is no material to establish the

fact that the condition of health which resulted into death of Jagdish Kumar Jolad had anything to do about the alleged discontinuation of tablet for diabetic. Mere allowing to eat biscuits with tea cannot be contributed an act of medical negligence considering the background and attending circumstances of this case, because the death is not related to it. It is pertinent to note that to ascertain the exact cause of death the post mortem would be of immense help but the relatives of Jagdish Kumar Jolad did not allow the same. Considering the summary of the treatment which deceased late Jagdish Kumar Jolad had received in Opposite Party No.1 hospital, there is nothing to show that bolam test is satisfied in the instant case to hold either hospital or treating doctors guilty of medical negligence. The death was unfortunate, but, that does not establish any deficiency in service on the part of the Opposite Party No.1 hospital.

I do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

Consequently, revision petition filed by the petitioner is dismissed with no order as to costs.