SOWBHAGYA PRASAD vs STATE OF KARNATAKA

IN this complaint, the complainant has sought a compensation of Rs, 10,00,000/- from the opposite parties, that is, the State of Karnataka, the Director of Health & Family Welfare Services, the District Health Officer and Medical Officer, Government General Hospital, Maddur, for the defect in Tubectomy operation on complainant No. 1, wife of complainant No. 2 on 22.5.1990 at a Family Planning Operation Camp organized by the Opposite Parties.

WE heard the learned Counsel for the complainant regarding the maintainability of the complaint. The complainant averred that she underwent a Tubectomy operation on 22.5.1990 at the Family Planning Operation Camp organised by Opposite Party Nos. 1 to 3 and conducted by Opposite Party No. 4. As that operation was not properly conducted and so she became pregnant and delivered a third female child on 28.4.1992. The complainant also averred that she underwent another operation for total sterilization subsequent to the birth of third child which resulted in the complication of her health. The complainant sought, compensation from the Opposite Parties as referred above.

Learned Counsel for the complainant submitted that the complainant No. 1 is a ''consumer'' under the provisions of the Act, as she had availed the services of the Opposite Parties and as the services rendered by the Opposite Parties was deficient in nature, and so under the provisions of the Act, the complaint was maintainable.

LEARNED Counsel for the complainant, relied on the decision reported in M/s. Cosmopolitan Hospitals & Anr. v. Vasantha P. Nair reported in I (1992) CPJ 302 (NC) and submitted that the complaint was tenable. The word ''consumer'' has been defined under Sec.2(1)(d) of the Act, as under:- Sec.2(1)(4):- "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 sevices 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 payment, when such services are availed of with the approval of the first mentioned person.

IT is clear from this that for a person to become a ''consumer'' under the provisions of the Act, he has to hire the services of the opp. party for consideration. The word ''service'' is defined under Sec. 2(1)(o) which reads as under:- Sec. 2(1)(o):- "Service" means, service of any description which is made available to potential user and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply f of electrical or other energy, board or lodging or both (housing construction), entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. It is clear from this that rendering of any service free of charge or under a contract of personal service is not ''service'' under the provisions of the Act.

THE learned Counsel for the complainant brought to our notice a Gazette Notification and submitted that the complainant was paid a cash compensation of rupees 70/- for Tubectomy operation undergone by her.

THE complainant has not averred in the complaint that she had hired the services of the opp. parties for consideration. In the above mentioned case, the National Commission has at paras (20) and (21) observed thus:- Para 20:- In the case of hospitals which provide treatment to patients for payment we are unable to see how there is any element of personal service involved in such an arrangement. When a patient goes to such a hospital and avails himself of the facility of treatment on payment of consideration, he is dealing only with an institution carrying on the activity of providing medical service for payment and no element of ''personal service'' does enter into the picture in such a case. Para 21:- In the light of the foregoing discussion, we have no hesitation to uphold the finding of the medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression ''service'' as defined in Sec. 2(1)(o) of the Act and that in the event of any deficiency in the performance of such service, the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction.

In view of this, it is clear, that the National Commission was considering the case of a hospital wherein, the complainant had availed the services of the doctor on payment, i.e., the complainant had hired the services of the doctor for consideration.

IN the present case, as referred above, the complainant had not availed the services of the for consideration. On the other hand, the had paid a cash compensation of Rs. 70/- to the complainant for the Tubectomy Operation that she had undergone. The National Commission in Consumer Unity & Trust Society, Jaipur v. State of Rajasthan & Ors., reported in I (1992) CPJ 259 (NC) has held as under:- "A patient availing facility in a Government Hospital is not a ''consumer'' and is therefore, not competent to file a complaint under Consumer Protection Act, 1986."

IN view of these facts and in the circumstances of the case, if is clear, that complainant No. 1 is not a ''Consumer'' under the provisions of the Act. Hence, the complaint is untenable. In the result, therefore, this complaint is dismissed as not maintainable. Complaint dismissed.