Pavittar Singh vs State of Punjab

APPELLANTS were the complainants before the State Commission where they had filed two separate complaints alleging deficiency in service on the part of the respondents which are common in both the appeals before us.

IN First Appeal No. 147/1997, very briefly the facts of the case are that the appellant''s wife approached the respondent''s hospital for Tubectomy, which was carried out on January, 8, 1993 by respondent Doctor Dharam Paul. Complication arose on account of which she was taken to Ludhiana but the appellant''s wife died on 13.1.93 at Civil Hospital, Ludhiana. Thus, alleging a case of medical negligence, a complaint was filed before the State Commission. In FA 148 / 1997, very briefly facts of the case are that despite Tubectomy operation carried out by the second respondent Dr. Dharam Paul, a female child was born to the appellant/complainant Paramjit Kaur on December 1990. Thus, alleging deficiency in service, a complaint was filed before the Punjab State Commission.

Since point of law involved is the same in both the cases, we go on to join them for purposes of dealing with these cases by passing a single order. In both these cases, preliminary objections were taken by the opposite party before the State Commission that since the services were rendered free of charge, they are not covered by the provisions of the . Accepting the plea of the respondents in the first round of litigation, in both the cases, the State Commission had dismissed the complaints as not maintainable. On two separate appeals being filed before the National Commission, they were allowed and the cases were remanded back to the State Commission for fresh trial after giving both the parties opportunities to be heard.

IN both the cases before us, the State Commission heard the parties and again dismissed the complaint as not being maintainable especially in view of the judgment passed by the Hon''ble Supreme Court in the case of INdian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC). Aggrieved by this order these two appeals have been filed before us. Despite notice, none is present on behalf of the respondents, hence we go on to pass the orders after hearing the appellant.

AS far as FA 148/1997 is concerned, one need not traverse any further except to cite the judgement of the Hon''ble Supreme Court in the case of State of Haryana & Ors. v. Smt. Santara Devi, I (2000) CPJ 53 (SC)=IV (2000) SLT 93=II (2000) CLT 152 (SC), in which Hon''ble Supreme Court has clearly held that such cases, where after sterilisation operation if there is a conception, then in such cases there is no bar in "claiming damages on account of tort of medical negligence in not carrying out sterilization operation with due care", thus, it is clear that the jurisdiction of the Consumer Protection Act, cannot be ousted on the grounds taken by the Hon''ble State Commission. In view of above discussion, we are unable to sustain the orders passed by the State Commission in FA No. 148 / 1997. As far as FA 147/1997 is concerned, the reliance on the sub-para Nos. 9 and 10 of Para 55 of the judgment of the Hon''ble Supreme Court in the case of Indian Medical Association v. V.P. Shantha & Ors. (supra), in our view is mis-placed. This Commission has consistently held that where the hospital renders service and is collecting charges from some people in respect of certain service rendered by the hospital then, it will fall within the category as defined in Para 55(10) of the Judgment (supra). Para 55(10) of the judgment in the case of IMA v. V.P. Shantha (supra) is as follows:- "(10) 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 services would fall within the ambit of the expression ''service'' as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is 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."

A plain reading of this para leaves very little choice, if any, to hold that in the facts and circumstances of this case, respondents shall come within the purview of the Consumer Forums, irrespective of the fact that the operation in this case was done under a certain scheme of ''Family Planning''. What is being alleged is an instance of medical negligence relating to a doctor and the doctor is working in a hospital and since hospital charges from some persons certain charges for its services, in these circumstances, any services rendered by them will make them fall within the purview of the . We are further supported by our above view in the light of judgment of the Hon''ble Supreme Court in the case of State of Haryana v. Smt. Santara Devi (supra). In the aforementioned circumstances, we find that the State Commission erred in ousting the jurisdiction of Consumer Forum on an incorrect premises hence the order passed by the State Commission cannot be sustained.

IN view of above, both the appeals are remanded back to the Punjab State Commission, Chandigarh for fresh trial after giving both the parties opportunity to lead evidence and cross-examine oral or thorough interrogatories, if requested and pass the orders on merits.

THE parties are directed to appear before the State Commission on 23.2.06. Ordered accordingly.