S.THARANI vs SOUTHERN RAILWAY HEADQUARTERS HOSPITAL

THE complainants are the legal representatives of one deceased Sekar. He, who was a Railway employee was admitted in the Southern Railway Headquarters Hospital, Perambur, the 1st opposite party for cardiac check up and there he underwent a Coronary Artery bypass operation. As the condition of the patient had not improved in the I.C.U. and it deteriorated the opposite party had re-operated the patient but the patient died on 30.4.1997 at 6.15 a.m. According to the complainants the death had occurred only due to the deficiency in service on the part of the opposite parties. On these allegations the complaint has been filed under Section 12 of the Consumer Protection Act for compensation.

THE opposite parties contend that the complainants are not consumers with the meaning of the Consumer Protection Act and the service was a free service and hence it does not come within the purview of the said Act and therefore the complaint is not maintainable. It is further contended that there was no negligence or deficiency in service on the part of the opposite parties. The point that arises for consideration is whether there was deficiency in service on the part of the opposite parties within the meaning of the Consumer Protection Act and if so what reliefs can be granted to the complainant.

Point : Now the deceased Sekar was a Railway employee and he had the treatment with the opposite party Railway Hospital. It is not in dispute that he had been rendered free service. The Indian Railway Establishment Code Vol. I clearly states that the Railway employees, their family members and dependent relatives are entitled free of charge medical attendance and treatment. Therefore the deceased Sekar had free medical service by the opposite parties. A "Consumer" has been defined in the Act under Section 2(1)(d) in relation to any service as the one who hires or avails of the service for consideration which has been paid or promised or partly paid or partly promised under any system of deferred payment. Service has been defined under Section 2(1)(o) as follows : "(o) "service" means service of any description which is made available to potential users and includes 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 this it is clear that when a person avails of a free service he cannot be a consumer within the meaning of the Act. This being the case neither the complainants were nor the deceased Sekar was a consumer. However, the learned Counsel appearing for the complainants brings to our notice a judgment of the Supreme Court in Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC)=1995 (3) CPR Page 412, and would submit that as per this judgment the complainants in the present case must be regarded as consumers. In that judgment the Supreme Court had categorised the Medical Practitioners, Government Hospitals/nursing homes and private hospitals/nursing homes into 3 categories as follows : (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; and (iii) where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges." Then it (Supreme Court) has stated that those persons to whom free service is rendered under the third category are as beneficiaries of the service which has been hired or availed of by the paying class are also "Consumers" within the meaning of the Consumer Protection Act and thus they are entitled to protection of the Act. But the opposite parties Railway Hospital cannot be regarded as a hospital which would come under Category (iii) mentioned in the judgment of the Supreme Court. In the hospitals which come under the said Category (iii) generally charges are required to be paid by those who avail services but certain category of persons who cannot afford to pay are rendered service free of charges. But in the opposite party Railway Hospital which is meant for the Railway employees and their family members and dependents the services are rendered freely to those people. However, it is stated that some outsiders also get treatment in those hospitals and they pay but those will be of rare cases. Surely, the railway hospital cannot be included in Category (iii) hospital mentioned in the judgment of the Supreme Court. There is no question of the Railway employee being a beneficiary of service availed of by some other person or persons. To repeat, a Railway employee is entitled under law for free service. Hence the said Supreme Court judgment will not be of any assistance to the complainants. What is more, the Apex Court in its judgment in State of Orissa v. Divisional Manager, L.I.C. & Anr., II (1996) CPJ 31 (SC)=1996 (2) TNCR 715, considering the contention of a Government Servant, referring to the definition of "Service" under the Consumer Protection Act has held that "it is not in dispute that the respondent was a Government Servant and therefore he is bound by the service conditions and the State was rendering service free of charge to the contesting respondent. Under those circumstances, the Government Servant has been excluded from the purview of the Act to claim any damages from the State under the Act. Therefore if any claim arises for the contesting respondent, it would be open to him to claim, in any other Forum, but not under the Act". As such the service having been free to the deceased Sekar the said Sekar or the complainants cannot be said to be consumers.

SECONDLY, on another ground also this complaint is not maintainable. The complainants are the legal representatives of the deceased Sekar who had the treatment. We have in a recent elaborate order of ours in Mrs. Hemalatha Saptharishi & Ors. v. The lndian Oil Corporation Limited & Ors., III (1998) CPJ 533=A.P. Nos. 545/ 96 and 743/96 Dt. 12.8.1998, clearly held that a legal representative of a deceased consumer cannot file a complaint. A copy of that order will be annexed as part and parcel of this order. For the above said reasons the complaint is dismissed. However, there will be no order as to costs. Complaint dismissed.