B.PRASAD v. THE SUPERINTENDENT

(Delivered by Smt. R.Seetaramamma, President (FAC) This is a complaint filed by the complainant against opposite parties 1 to

4 u/sec.12 of the Consumer Protection Act., 1986 by praying to pass an order directing the opposite parties 1 to 4 to pay an amount of Rs.5,36,000/- in total and such other and further reliefs. The brief averments of the complaint are as follows:

2. Complainant is resident of Khajigudem he is working as a watchman on the fish tanks, opposite party is head of the Government Head Quarters Hospital, Eluru, opposite parties 2 and 3 are employees in that hospital opposite party No.4 is District Collector, West Godavari, Eluru.

3. On 1-10-2009 complainant got admitting in Government Head Quarters Hospital, Eluru with diarrehoea (loose motions) through opposite party chit No.24242, opposite party No.2 who is the duty doctors provided treatment to complainant and directed opposite party No.3 to administer dextrose to complainant, opposite party No.3 inserted I.V. cannula to the right hand of complainant and injected dextrose through the same. Within no time the right 2hand of complainant had severe swelling and caused much pain to complainant, the complainant and his attendant informed the same to opposite party No.3. But opposite party No.3 paid deaf ear at their words. Later on opposite party No.2 verified the swelling while rounds and stated that it would be cleared by early morning and passed away. By the next day morning also the right hand of complainant still remained with swelling and there are signs of oozing of blood with pus from the spot, where the cannula was inserted. The same is brought to the notice of the ANM on duty, who suggested, apply ointment and neglected to give proper treatment, till 3-10-2009 no doctor/ANM/nurse paid attention on complainant about his ailment. The right hand of complainant was discharging with water, bad blood with pus and pain increased. On the same day he was discharged from hospital with an advice to have further treatment in a private hospital for the pain and swelling. Later on 7-1-2009 complainant got admitted in GGH Guntur with the financial aid of villagers. After thorough examination there, the right hand of complainant is removed up to the arm joint, on 08-10-2009 since the entire hand is suffering from Gangrin and complainant was discharged from GGH Guntur on 20-10- 2009.

4. Complainant further pleaded that loss of his right forearm, only because of the negligence and non provided of efficient service to him by opposite parties 2 and 3. Later complainant addressed a letter to opposite party No.4 about the irregularity, negligence and deficiency of service which led to amputation of his right forearm in Prajavani, on which the authority ordered for enquiry, in that enquiry found that there is deficiency of service and supported the allegations made by complainant. Later on 06-11-2009 complainant got issued a legal notice to opposite parties by demanding compensation. The same received by opposite parties. Opposite party No.2 had given reply and the others kept quite.

5. Opposite party further pleaded that, the very particular point for swelling to the right hand is only of wrong handling of opposite party No.3, even after knowing the problem, opposite party No.2 failed to pay proper attention, as a result GANGRIN attacked to the right hand of complainant, lead to amputation. Opposite party No.1, the heard of the Government Head Quarters Hospital and opposite party No.4 is District Collector of West Godavari District hence, opposite parties 1 to 4 are jointly and vicariously liable to pay the compensation. In Government Hospitals also user charges are collecting from the patients as such the doctors who are working in Government Hospitals also comes under the purview of Consumer Protection Act, hence, this complaint.

6. Notice served on opposite parties 1 to 4, opposite party No.1 filed his version opposite party No.2 remained exparte, opposite party No.3 filed version opposite party No.4 adopted the version of opposite party No.1 on a memo.

37. The brief contents of version of opposite party No.1: Opposite party No.1 categorically denied all the material allegations made in the complaint against opposite parties 1 and 4 and he further stated that, as per the hospital records, complainant brought to causalities of District Head Quarters hospital, Eluru at 3.05 p.m. on 01-10-2009 with a complaint of diarrahoea and provided treatment to him, after recovery the patient was discharged from hospital on 3-10-2009.

8. He further contended that the statement of complainant is controversial if swelling appeared on starting dextrose fluids, it is not possible to give 6 saline bottles in a swelling hand. Only a clear IV line can save a diarrhoea patients life.

9. According to complainant, 3 days no doctor, no nurse paid attention. But the same denied by opposite party No.1 by stating that round the clock with 8 hours shift staff Nurse available and duty doctors are available. After careful examination and complete recovery of diarrahoea complainant was discharged only after satisfying his general condition. Complainant was discharged on 3-10-2009 but he admitted in Guntur Government Hospital on 7-10-2009, there is a gap of 5 days between his discharged from Government Head Quarters, Eluru and taking admission in Guntur Government Hospital. It is a crucial time where patient developed right hand infection. There the complete negligence of complainant about his right hand infection, complainant might have taken treatment at his village for some other disease of right hand for that 5 days and he is hiding that fact from this Forum.

10. Complainant taking admission in Government Hospital, Guntur itself is a suspicious circumstance why he dropped District Hospital, Eluru and Vijayawada, if really complainant was not properly treated at Government Head Quarters, Eluru he cannot recover and servive from diarrahoea. The complainant did not made any complaint, prior to making a complaint at Prajavani, to the administration, there is no lapses on their part in providing services. Complainant reached to District Head quarter, Eluru by free transport from his house to hospital in 108 Ambulance, he did not paid any user charges to the opposite party hospital. During 2009 the user charges has been lifted off. Everything is free including milk/bread/meals/medicines. There is no consideration to them, they provided proper services to complainant and no negligence on their part. Hence, prayed for dismissal of this complaint with costs.

11. Contents of Version of opposite party No.3: Opposite party No.3 initially denied all the material allegations made in the complaint by the complainant.

12. Opposite party No.3 stated that she is a trained nurse and working since

20 years in Government Hospital and she is discharging her duties in a good 4manner and her services are spotless, the complainant may be treated by this opposite party but complainant never complained about his hardship to opposite party No.3 at any point of time while opposite party No.3 is in duty (shift). Even after to that to the knowledge of opposite party No.3, complainant neither complained to the nurses or duty doctor further at the time of complainant left the hospital she was not in duty. The removal of the hand of complainant only occurs, when there exists more infection beyond treatment due to negligence of the complainant in taking proper care and treatment, his hand was amputated, except that she is nothing to the case. There are 3 shifts in the hospital all were responsible if any alleged negligence was taken place and there is no negligence on her part and no deficiency of service on her part. Finally prays for dismissal of complaint against opposite party No.3.

13. Evidence affidavit of complainant filed and got marked Exs.A1 to A9 on his behalf. Common chief affidavit of opposite parties 1 and 4 filed. In spite of granting sufficient time opposite party No.3 did not choose to file its chief affidavit. Hence, it is deemed no chief affidavit to be filed for opposite party No.3. No document submitted by opposite parties.

14. Heard, complainant and opposite parties 1 and 4.

15. Now the points that arise for consideration are:

1. Whether this complaint falls under the jurisdiction of this Forum with regard to subject matter?

2. Is there any deficiency of service on the part of opposite parties?

3. Whether the complainant is entitled for any releifs as sought by him? If so, to what extent?

15. POINT NO.1 Prior to decide all the issues, the jurisdictional issue has to be taken as preliminary issue after deciding the same the other issues have to be decided since, the judgment delivered by a court without jurisdiction is nullity. Even though the plea of lacking of jurisdiction did not rise by either of the party to the proceedings, it is bounden duty of the court to see whether the court having jurisdiction to decide the matter or not. In view of the above aspect this Forum inclined to decide, whether the complainant comes under the purview of consumer and this complaint falls under C.P.Act.,

16. To decide the complaint is a consumer or not it is pertinent to note down the definition of consumer under C.P.Act., hereunder. According to Sec.2(1)(d) of C.P.Act., 1986. 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 5paid 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 services 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; [Explanation: - For the purpose of sub-clause (i), commercial purpose does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self- employment;]

17. As seen from the above text, it is clear that the first part of the definition pertaining to goods and second part deals with hires or avails of any services.

18. In the present case in hand complainant availed the services of the opposite parties 1 to 3. Hence, II part of the definition is squarely applicable to the present set of facts.

19. As seen from II part hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised or payment deferred under any system or his beneficiaries comes under the purview of the definition of consumer.

20. So, a person mere availing services or hiring services is not sufficient to say him as consumer, there must be consideration for providing such services either past, future and presently past and presently future one. Hence, in this case, complainant availed the services of opposite parties 1 to 3 at free of cost. In his complaint he pleaded that now a days user charges are collecting by the Government Hospitals. Hence, they comes under the purview of the service providers and governed by C.P.Act., but it is not the case of complainant that he paid user charges to the opposite parties 1 to 4 for availing services of opposite parties 1 to 4. In such a case there is no consideration at all for availing services of opposite party. Moreover, on the other hand opposite party contended that in the year 2009 there were no user charges and the same was lifted by government. So, the plea taken by complainant is not tenable by stating that government hospitals are collecting user charges. Hence, they comes under the purview of C.P.Act., is not tenable one.

21. The decision submitted by complainants counsel is rightly applicable to the present set of fact. He filed a citation of national consumer disputes reddresal commission decision reported in 2012 (2) CPR 563 (NC) in a case 6Shri S.C.Mathur and ors Vs. Director all India institute of medical sciences and others:- the Honble National Commission categorically stated that service rendered at Government Hospital where no charge what so ever is made from any person availing for services and all parties are given free service is outside the purview of explanation service as defined u/sec. 2(1)(d) of the C.P.Act., the above principle was laid down the Honble Supreme Court of India in Indian medical association Vs. V.P. Shanta and other. Basing on the judgment of SC of India NC delivered the same, the exact words which quoted in that judgments are mentioned here under service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. Service rendered at a government hospital/health center/dispensary where no charge whatsoever is made from any persons availing of the services and all patients (rich and poor) are given free service- is outside the purview of the expression services as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

22. In view of the above the service provided by opposite parties does not comes under the purview of the word service under C.P.Act., and the complainant is not a consumer. So, this Forum has no jurisdiction to try this matter with regard to subject matter. Thus point No.1 is answered.

23. POINT NOS. 2 AND 3 As point No.1 is answered against complainant, complainant is not entitled for any relief under this complaint and this forum has no jurisdiction to decide about the negligence on the part of opposite parties 1 to 4 and the complaint is liable to be dismissed. In the result, the complaint is dismissed and no costs. Typed to my dictation to the stenographer corrected and pronounced by us in the open Forum on this the 16th day of June, 2016. (Sri S.SREERAM) (SMT.R.SEETARAMAMMA) MEMBER PRESIDENT (FAC) APPENDIX OF EVIDENCE WITNESS EXAMINED For complainant : Evidence Affidavit For opposite parties : Evidence Affidavits of Ops 1 and 4 FOR COMPLAINANT :

71 Ex.A1 14-11-2009 Handicapped certificate Photocopy

2. Ex.A2 28-04-2006 Household card Photocopy

3. Ex.A3 24 hours laboratory, GGH, Guntur, Report Form Photocopy

4. Ex.A4 26-10-2009 Complaint given by the complainant to the District Collector, W.G.Dt., through Prajavani. Photocopy

5. Ex.A5 06-11-2009 Legal notice got issued by the complainants counsel to the opposite parties 1 to 3. Original

6. Ex.A6 11-11-2009 Acknowledgment from 1st opposite party. Original

7 Ex.A7 25-11-2009 Legal notice got issued by the 2nd opposite party counsel to the complainant and postal receipt. Original

8 Ex.A8 Photo Original

9 Ex.A9 04-01-2010 Enquiry report of Dr.Smt Nagarjuna, MBBS., D.O., Original FOR OPPOSITE PARTIES NIL. President (FAC)