N.ROHAN (YADAV) vs MANORAMA TAMRAKAR

THE three appeals arise out of the order dated 31.10.2000 passed in Case No 108/98 by the District Consumer Disputes Redressal Forum, Sagar (for short the ''District Forum'').

FACTS giving rise to the case are thus : the complainant-Smt. Manorama Tamrakar filed a complaint against Dr. Smt. Usha Saini, Dr. Smt. Shashi Thakur, Dr. N. Yadav and Miss Nathaval, Nurse of the Duffrin Hospital, Sagar alleging deficiency in medical service provided to her while she was admitted and remained as an indoor patient in Government Hospital for delivery of child from 14.8.1996 to 30.8.1996 from where she was discharged arid then was admitted in the Medical College Hospital, Jabalpur for treatment from 10.9.1996 till 27.9.1996. The complainant averred that after lower segment caesarean operation was performed on 15.6.1996 whereby the female child was born, there was infection and pus formation, which did not stop inspite of treatment, hence she was referred to Jabalpur Medical College where she was admitted on 19.9.1996 and remained under treatment till 27.9.1996. In the Jabalpur Medical College, while dressing on 10.9.1996 it was found that at the place of stitching at the time of caesarean operation 5 mtrs. mop was left, which ultimately was taken out on 30.9.1996 by operation. Leaving mop was an act of gross negligence on the part of the doctors of the Government Hospital, Sagar, who performed lower segment caesarean operation, therefore, claimed the amount of Rs. 5 lacs as compensation for deficiency in medical service in not taking proper pre and post-operative precautions. During this period the female child also died for want of proper feeding. The complaint filed was resisted. The District Forum after appreciation of evidence held that the complainant was a consumer and the complaint was maintainable even if no consideration was charged in the Government Hospital at Sagar. For the deficiency in service, the District Forum ordered to pay compensation of Rs. 50,000/- and Rs. 5,000/- as costs of the proceedings within a period of one month from the date of the order, failing which amount of compensation to carry interest at the rate of 12% p.a. The hospital and Dr. Smt. Usha Saini and Dr. Smt. Shashi Thakur and Staff Nurse aggrieved of the order have filed Appeal No. 1763/2000, while Dr. Smt. N. Rohan has filed Appeal No. 96/BSP/2000. The complainant has also filed Appeal No. 1803/2000 for enhancement of compensation.

After hearing learned Counsel for the parties we are of the opinion that the order of the District Forum cannot be sustained.

ADMITTEDLY, the complainant was admitted for delivery of the child in the Government Hospital, where no fee is charged from any category of the persons or patients except token registration charge of Rs. 2/- from the patient. The complainant did not make any payment or consideration to the doctors and/or to the nurse, who performed the operation or treated the complainant at hospital at Sagar. In the circumstances, in view of the decision of the Supreme Court in case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), wherein the question has been dealt with and hospitals and doctors have been categorise in para 43 which we quote : "43. The other part of exclusionary clause relates to services rendered "free of charge". The medical practitioners, Government hospital/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories : (i) where services are rendered free of charge to everybody availing the said services; (ii) where charges are required to be paid by everybody availing the services; arid (iii) where charges are required to be paid by persons availing service but certain categories of persons who cannot afford to pay are rendered service free of charges. There is no difficulty in respect of first two categories. Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals. So far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1)(o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1 )(o) of the Act."

The present case is covered by category (i) as services are rendered free of charge to every body availing the medical services in the said hospital. The payment of a token amount of Rs. 2/- for registration purposes only does not alter the position in respect of the doctors and hospitals. It is not the case of the complainant that in the hospital from a particular category of the patients the fee or consideration is charged or the complainant had paid any amount of consideration or fee to the doctors concerned even at their residence. In the circumstances, in our opinion, the District Forum erred in mis- applying the law laid down by the Supreme Court and erroneously held that the complainant was the consumer and, therefore, for deficiency in medical service was entitled to compensation. In fact the complaint was not maintainable and was liable to be dismissed at the initial stage as the District Forum had no jurisdiction to entertain the complaint for redressal of the grievance of the complainant under the provisions of the Consumer Protection Act, 1986. In view of the above, it is not necessary for us to deal with the findings recorded by the District Forum on merits as it is well-settled that when a Court had no jurisdiction to entertain the complaint then the findings recorded on merits of the disputes are without jurisdiction and are not binding on the parties. Therefore, the finding recorded by the District Forum on medical negligence would not be binding on the parties. See, Upendra Nath v. Lall, AIR 1940 PC 222, and the decisions of Madhya Pradesh High Court in Chalchitra Karmchari Sangh v. Regal Talkies, Gwalior, 1983 JLJ 728; Smt. Sudamabai v. Pratap Singh, 1988 II MPWN 33; M.P. State Road Transport Corporation v. Dashrat Singh, 1992 JLJ 489, followed by this Commission in Ku. Shalini Kushwaha v. General Manager, SBI Fund Management, Mumbai, Appeal No. 994/97, decided on 5.6.2000.

IN view of the above, we have no alternative but to dismiss this complaint with liberty to the complainant if so advised to institute the suit in the Court of competent jurisdiction to claim compensation for negligence. If the complainant chooses to institute the civil suit for the relief claimed in these proceedings she can do so according to law and in such a case can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit. In the result, the Appeal Nos. 96/BSP/ 2000 and 1783/2000 are allowed while Appeal No. 1803/2000 filed by the complainant is dismissed. Accordingly, the order of the District Forum is set aside. Consequently the complaint is dismissed with no order as to costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum along with the record of the case. Ordered accordingly.