RABINARAYAN SAHOO vs B. JAYARAM PATRA

-THIS revision petitioner Shri Rabinarayan Sahoo was the complainant before the District Forum Khurda, Bhubaneshwar where he had filed a complaint alleging medical negligence on the part of the respondents, (1) Dr. B. Jayaram Patra, (2) Saroj Kanta Mohanty, (3) Secretary, Heath and Family Welfare Department, (4) Director of Health & Family Welfare Deptt. The District Forum held deficiency of service and directed the opposite party to pay compensation of Rs. 50,000/- for the mental agony and Rs. 1,000/- towards costs. The Orissa State Consumer Disputes Redressal Commission allowed the First Appeal No. 502/2001 on 28.8.2002 of O.P. No. 1 and dismissed the complaint as not maintainable. Brief facts of the case are :

THE petitioner''s mother Kuntala Sahoo was admitted as an indoor patient in the Capital Hospital, Bhubaneshwar on 14.9.1999 for removal of Gall Bladder Stone. Respondent No. 1 treated the patient and administered various medicines for the complaint of severe pain in the abdomen. After preliminary investigations were done in order to do the surgery for removal of Gall Bladder Stone and he operated on her on 22.9.1999 alongwith respondent No. 2 after finding her case was fit for operation. After the operation, unfortunately, the patient died on 22.9.1999. It is complainant''s case that the operation was defective and that there was lack of proper care in treating the patient by the physician. Respondent No. 1 and respondent No. 2 who also assisted in the surgery. THE surgery was conducted after taking consent of the party. Necessary tests were conducted. THE District Forum held respondent No. 1 negligent in conducting the operation because the patient died. Further reasons stated by the District Forum are non-supply of death report of the patient coupled with non-production of the bed-head tickets and they held respondent No. 1 was laible to pay Rs. 50,000/- for deficiency of service. Dr. B. Jayaram Patra, the present respondent while pleading that there was no negligence on his part in treating the patient took several other grounds in defence but the main stand he took was that the complainant got his mother treated in Capital Hospital which is a Government Hospital and for the treatment given no consideration was paid by the complainant to the hospital or to him. The State Commission allowed the appeal on the ground that the complaint is not maintainable under the Consumer Protection Act since the free services do not fall under the purview of the Act.

We heard all the parties and perused the records and orders of both the District Forum and State Commission.

THE revision petitioner''s argument is that he paid a nominal fee for pathological tests before the operation and that should be treated as a consideration paid to the hospital/doctor and they are liable to pay for their negligence. Firstly, respondents in their affidavits, very strongly argue that the amount that was paid was for the tests conducted and where and when they were conducted were not even mentioned by the complainant or was reflected in the orders. THEse were paid for doing necessary tests and not for the said surgery. THEre is no deficiency in service or negligence as far as the tests are concerned. Secondly, nowhere, clear negligence was placed on record as far as surgery is concerned about the methodology followed or what was not done by the Doctor. THEre is no whisper of that and no evidence was provided to support the allegations of medical negligence. Mere allegations that Death Report was not given cannot support the main allegation of medical negligence in this case. District Forum cannot decide a matter of medical negligence, so summarily, in the original jurisdiction. Lastly, and most important, this complaint does not fall under the purview of the Consumer Protection Act. THE Supreme Court in case of Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC)=AIR 1996 SC 550 interpreted the same in Para 56 (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 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."

Here in the present case, the allegation of the petitioner is that the patient succumbed to death only because the operation was defective. So far as the operation aspects are concerned, it is not his case that any fee was paid for operation, nor is it that any fee for operation is charged from any other patient in the said hospital. It is also not his case that the Doctors had charged any fee for conducting the operation. Hence in absence of payment of consideration, there is no availing of service of any kind in this case and thus, complaint is not maintainable.

THE argument that payment of charges were made for tests prior to the operation for which no negligence or deficiency of service was attributed, cannot be extended to later events which are entirely of a different nature and which cannot be clubbed together. We cannot appreciate this attitude of the petitioner while claiming medical negligence. We accordingly dismiss the petition as not maintainable. No order as to costs. Revision Petition dismissed.