M SHANTHA KUMAR vs CAPT V P MOHAN

-THE "deficiency in Service" alleged by the complainant is that the Security Staff and the Nurses of the opposite party hospital did not allow an accident victim even to enter the hospital premises leave alone providing treatment.

FOR the sake of convenience, the parties in this order are referred to according to their position in the complaint filed before the District Forum. This appeal is by opposite parties (for short, "ops") Nos. 1 and 2 challenging the order dated 21. 6. 2005 passed by the District Consumer Forum, Bangalore Urban IV Additional, in Complaint No. 121/2004, by which the District Forum has allowed the complaint of the complainant in part.

The facts of the case in brief are as follows: the complainant is the father of one Mrs. Seena, who died due to the accident occurred on 4. 10. 2003. According to the complainant, when his daughter was riding two-wheeler Scooty, a four wheeler Swaraj Mazda knocked down the two wheeler from behind and, consequently, both his daughter and a child Master Abhishek fell down resulting in severe head injuries to her daughter and minor inuries to the child. The fact of the accident, according to the complainant, was intimated to the complainant on telephone and immediately thereafter the complainant along with his friends and relatives rushed his daughter to OP hospital, which is situated about 2 kms. away from the house of the complainant, but the security staff of OP hospital at the main gate of the hospital objected to the entry of the accident victim inside the hospital and the request made to the Nursing staff to admit the victim in OP hospital for treatment proved futile. Thereafter, the victim was taken to Santosh Hospital, where she was declared dead. According to the complainant, there is a "deficiency in Service" on the part of the OPs in not providing treatment to the victim after admitting the victim to the hospital and, therefore, the complainant filed the complaint before the District Forum for a direction to the OPs to pay Rs. 5,00,000 as compensation.

ON the complaint of the complainant, the District Forum ordered Notice to the OPs. On service of Notice, the OPs filed versions denying the averments made in the complaint. The complainant has filed his own Affidavit apart from the Affidavits of some other persons in proof of the averments made in the complaint that the security staff and the Nurses of the OP hospital did not allow the victim to enter inside the hospital premises. The OPs also filed Affidavits by way of evidence in support of their case. In addition, the parties have also produced certain documents which are marked as exhibits.

THE District Forum relying on the decision of the Supreme Court reported in AIR 1994 SC 2039 and the decision of the National Commission reported in 2005 CTJ 605 CP (NC), has allowed the complaint in part directing the OPs to pay Rs. 3,00,000 as compensation in favour of the complainant. This order is under challenge by OPs 1 and 2 in this Appeal. The point that arises for consideration in this appeal is: whether the District Forum is justified in allowing the complaint of the complainant in part? The case of the complainant is that the security staff in the OP pospital did not permit the victim to enter inside the hospital. The further case of the complainant is that even the Nursing staff did not permit the victim to be admitted to the hospital. According to the complainant, in the instant case, in view of the law declared by the Supreme Court it was the duty of the Hospital Authorities to provide immediate treatment when the victim was seriously injured in the accident.

PER contra, the case of the OPs is that the victim was not at all brought to the OP hospital and, therefore, it cannot be said that there is any deficiency in service on their part. The further case of the OPs is that the complainant is not a "consumer" as defined under the Consumer Protection Act, 1986 (for short, the "act") and, therefore, he cannot maintain a complaint before the District Forum.

THE District Forum on the point of maintainability of the complaint has not assigned any cogent reasons so as to come to the conclusion regarding maintainability of the complaint with reference to the provisions of the Act. The learned Counsel appearing for the OPs strenuously contended that the complainant being not a ''consumer" cannot maintain a complaint under the Act. In order to consider the point regarding maintainability of the complaint it is useful to refer to certain provisions of the Act. Section 2 (c) (iii) of the Act reads thus: "2 (c) ''complaint'' means any allegation in writing made by a complainant that-the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect. " section 2 (d) of the Act defines the word "consumer". Section 2 (d) reads thus: "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 payments, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. Explanation-For the purposes of this clause, ''commercial purpose'' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment. "

The word "service" is also defined under Section 2 (o) of the Act, which reads thus: "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 construction, 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. "

From a reading of the above provisions it is seen that any person who 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 is a consumer. In the instant case, the case of the complainant is that the security staff of the OP hospital did not permit the victim to enter inside the hospital. The further case of the complainant is that even the Nursing staff did not admit the victim stating that no Doctor was available. It is not the case of the complainant that he has approached any of the responsible officers of the OP hospital in order to get the victim admitted in the OP hospital. When the victim herself was not admitted to the hospital and was not provided any treatment and also in view of the fact that no consideration was paid or agreed to be paid, then it cannot be said that the complainant is a "consumer" as defined under the Act.

The Supreme Court, no doubt, in the case of Parmanand Katara v. Union of India and Ors. , AIR 1989 SC 2039 while considering Clauses 10 and 13 of the Code of Medical Ethics has held the "patient must not be neglected-A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. Once having undertaken a case, the physician should not neglect the patient, nor should be withdrawn from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provisionally or fully registered medical practitioner shall wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care".

THE National Commission in the case of Parvat Kumar Mukherjee v. Ruby General Hospital, reported in II (2005) CPJ 35 (NC), has awarded compensation recording a finding that there is a "deficiency in Service" discontinuing the treatment only because of the fact that there was a failure on the part of the person who brought the patient to the Hospital to deposit Rs. 15,000. If a doctor fails to provide treatment to a patient who is brought to him and whose condition is serious, necessarily it is open for the patient or his/her Legal Representatives to take appropriate action against the doctor under the criminal law and it is also open to the concerned person to move the authorities of the concerned Department for withdrawal of the licence granted to the hospital. But if the complainant fails to satisfy the conditions provided under the Act in order to maintain a complaint, he cannot be considered as a "consumer".

THE decision of the National Commission on which the learned Counsel for the complainant has placed reliance is also of no assistance to the complainant, since the facts in the said case are altogether different from the facts involved in this case. In the case before the National Commission, the patient was admitted and treatment was started and ultimately the said treatment was discontinued only because of the fact that the person who brought the patient to the hospital failed to deposit Rs. 15,000 for the treatment. In the instant case, the victim was not at all, even according to the complainant, admitted to the OP hospital. When such being the case, the complainant has not availed of any services of the OP Hospital in order to say that the victim died due to deficiency in service on the part of the hospital. Therefore, in our view, there is no "deficiency in Service" on the part of the OPs since no treatment was started. The National Commission in Pravat Kumar Mukherjee case (supra) has observed as follows in paragraph 45: "further, once the treatment has started, it would mean that the complainant has hired the services. May be at the relevant time the considering (consideration) was not fixed or not paid. But, it was either promised, deferred or because of implicit duty of a noble profession in such emergency cases. "

Further, the OPs in order to prove and establish that the patient was not at all brought to the OP hospital made an application before the District Forum seeking permission to cross-examine the complainant and other witnesses who filed Affidavits. But the District Forum has rejected the said application. Therefore, in the absence of any proof, it cannot be said that the complainant has proved that he has approached the OP hospital for treatment to the victim.

HOWEVER, if there is any breach or if the OP Hospital Authorities have conducted contrary to the Code of Medical Ethics, the remedy of the complainant is elsewhere and not by way of filing a complaint before the District Forum.

THEREFORE, in our view, the District Forum was not right in allowing the complaint of the complainant. In the result, we pass the following order: (1) The appeal is allowed. The impugned order is set aside. (2) The complaint filed by the complainant before the District Forum is dismissed. (3) However, this order will not come in the way of the complainant availing of any other remedy available to him in law. (4) If the OPs have deposited any amount in this appeal, office is directed to refund the same to the OPs. (5) Parties to bear their own costs in this appeal.

Appeal allowed.