KADARKARAI NADAR vs RAKKAPPAN

THE appeal arises out of the order of the District Consumer Disputes Redressal Forum, Kamarajar District dated 23.6.93 in O.P. 101/91. THE opposite parties are the appellants.

THE case of the complainant is briefly as follows: THE complainant''s son was run over by a tractor belonging to the first opposite party on 21.4.91 and the first opposite party took the boy and got him admitted in the hospital of the opposite parties 2 to 5 who are Homeopathy Doctors. Due to improper treatment meted out to the boy, he has suffered great mental pain and agony. Hence this complaint against the opposite parties 1 to 5. The first opposite party denied that he owned any tractor or that the tractor ran over the complainant''s son or that he took the boy and admitted him in the hospital of the opposite parties 2 to 5.

The opposite parties 2 to 5 contended that they never treated this boy whose name is Muruganandam.

THE District Forum found that it is the first defence that the tractor which has ran over the complainant''s boy and he admitted in the hospital of the opposite parties 2 to 5 and the improper treatment meted out to the boy by the opposite parties 2 to 5 has resulted in disability and directed the first opposite party to pay compensation in the sum of Rs. 5,000/- to the Complainant and directed the opposite parties 2 to 5 pay compensation in the sum of Rs. 20,000/-. It is this order that is challenged in the appeal by all the opposite parties. THE thrust of the argument of the learned Counsel for the appellant is that the complaint is misconceived and is not maintainable. It is pointed out that the first opposite party is not the owner of the tractor in question and his tractor did not run over the complainant''s boy and that he did not admit the boy in the hospital of the opposite parties 2 to 5. We need not at this stage go into this question. Assuming that the first opposite party is the owner of the tractor which has run over the boy, the question is whether the complainant can claim to be a consumer so far as the first opposite party is concerned. Under Section 2(1)(d)(ii) of the Consumer Protection Act, a person is a consumer who hires or avails of the services of the opposite parties for any consideration, paid or promised, or partly paid and partly promised. By no stretch of imagination, can it be said that the complainant hired the services of the first opposite party in any matter whatsoever. THE complaint filed by the complainant is therefore misconceive and must fail. THE remedy of the complainant is to file a claim before the Motor Accidents Claims Tribunal for compensation. THE provisions of the Consumer Protection Act can have no application. As regards, the opposite parties 2 to 5, the case of the complainant is that they treated the boy improperly which has caused disability while the opposite parties 2 to 5 denied that they treated the boy. Here again, we need not go into the truth of this matter. Suffice it to point out that the complaint filed by the complainant nowhere says that any consideration was paid by the complainant to the opposite parties 2 to 5 for treating the complainant''s boy, or was any payment promised to the opposite parties 2 to 5. In his evidence, the complainant who has examined as PW 2 stated that he has paid Rs. 500/- to the second opposite party and another sum or Rs. 500/- to the third opposite party. They have denied these payments. In the absence of any pleading to that fact, the evidence of PW 2 that he made the payments cannot be accepted. Assuming that the opposite parties 2 to 5 treated the complainant''s boy, the treatment has not been made for any consideration and the complainant cannot therefore claim to be a consumer. Under Section 2(1)(o) of the Consumer Protection Act, service does not include rendering of any service free of charge or under a contract of personal service and under Section 2(1)(d)(ii) of the Act, a consumer is a person who hired the services for consideration. The complainant cannot therefore claim to be a consumer. The claim must fail as against the opposite parties 2 to 5 also. It is open to the complainant to file suit in a Court of competent civil jurisdiction for damages against the opposite parties 2 to 5 for improper treatment. No remedy is available to the complainant before the Forum constituted under this Act.

IN the result, the appeal is allowed the order of the District Forum is set aside and the complaint is dismissed without prejudice to the right of the complainant to agitate his claim in other Forums. No costs. Appeal allowed.