Addanki Lakshmana v. The Superintendent, Government Hospital

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whereas complainant joined his daughter in the government hospital on 21.11.2015, but the duty doctor could not give preference to admit the daughter of the complainant immediately in the hospital and the complainant's daughter was waited up to 12.30 PM for the doctors. Even though she is suffering from labour pains. After one hour 30 minutes the opposite parties 4 & 5 conducted all tests to the daughter of the complainant and informed the same to opposite parties 1 to 3 but opposite parties 1 to 3 even though they are on duty but they did not conducing their duty properly in government hospital and they have stayed in their houses instead of came to the hospital for examining the daughter of this complainant, opposite parties 1 to 3 arrogantly visited the hospital after 2 hours of the information and they did not take proper steps. When the opposite parties 1 to 3 visited the hospital, the daughter of the complainant is going to deliver of the male child at that movement half of the child came out of the womb but the opposite parties 1 to 3 and 4 to 8 without taking proper care of the daughter of the complainant and she delivered a male child at about 2 PM but all the opposite parties informed to the complainant after one hour that the baby died but the mother was not shifted to the ward and she was kept in the delivery room. After the delivery of the baby the daughter of the complainant is suffering from continues bleeding and all the doctors did not take proper care for stopping the continuous bleeding of daughter of the complainant. Due to the said over bleeding the complainant's daughter went to the stage of coma. The opposite parties knows thoroughly well immediately to apply stitches. But the opposite parties 1 to 3 did not do so even though, the wife of the complainant asked opposite parties 1 to 8 to apply stitches but opposite parties 1 to 8 did not apply the stitches and all the opposite parties deaf ear. Not only have that the opposite parties 1 to 8 also not supply any food to the daughter of the complainant.

4. Then the wife of the complainant trying to give fluids of milk at about 7 PM but unfortunately bleeding was occurred through the mouth of the complainant then she was referred to government hospital Vijayawada whereas the doctors informed to the complainant that his daughter sustained heavy loss of bleeding. As per the advice of the doctors government hospital Vijayawada the complainant purchased 10 packets of blood and the blood was transfused to his daughter continuously on 21, 22, 23^rdNovember 2014 but unfortunately the daughter of the

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complainant lost her breath on 24.11.2015 at about 12.30 PM and the same was informed to the complainant Vijayawada doctors that their daughter died due to over bleeding and due to severe jaundice for which the doctors and staff of Machilipatnam Government hospital not taken proper steps and not given proper treatment. It is the negligence on the part of the opposite party Nos 1to 4 and 5 to 9. Therefore it clearly shows there is a complete negligence on the part of the opposite parties.

5. The complainant given report against the duty doctors and also the other staff who are in duty on 21.11.2015 to the District Medical and Health Officer, Krishna Machilipatnam and also to the Superintendent of Government hospital Machilipatnam. After receipt of complainant the authorities appointed a medical officer who is working in Government Hospital,Guduru, Krishna district to make enquiry on the report given by the complainant against the opposite parties. The enquiry offices made enquiry on 01.02.2016 and also he recorded the statements of the nurses doctors and other staff this office made enquiry and submitted the enquiry report to the District Medical Health Officer Machilipatnam and also to the Superintendent,Government Hospital,Machilipatnam. The enquiry officer made enquiry in favour of the oppositeparties because of he is also one of the doctors. So he conducted the biased enquiry and submitted the report in favour of the opposite parties.

6. After coming to know about the enquiry report, the complainant suspected on the enquiryofficer, then the complainant taken the information of the duty doctors, nurses and other staff details who are on the duty on the date of the incident through his advocate under right to information act 2005. The details given by the Government Hospital authorities on 17.03.2016 and also taken the statements of the duty doctors and nurses and other staff. Before obtaining the details the complainant got issued registered notice to the Superintendent of Government Hospital Machilipatnam on 15.02.2016. After obtaining all the details the complainant again got issued notice to opposite parties 2 to 10 on 26.05.2016. The opposite parties 2 to 10 received the notices but they did not choose to give any reply nor complied with the legitimate demand of the complainant. Even though the complainant made so many efforts to take action against the opposite parties as all the

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opposite parties are committed the deficiency of service on the part of the opposite parties. Having no other alternative the complainant filed this complaint.

7. The main and material contents mentioned in the written version filed by the opposite party No.1 is as follows:

8. This opposite party denied specifically all material averments mentioned in the complaint para wise. After carefully observation in material available on the record this is very clear that the patient died due to failure of multiple organs and the patient did not come forward to the government hospital regularly and failed to maintain the diet and further failed to come for the regular checkup and due to gross negligence of the patient, caused to her death and in government hospital. The doctors and nurses and other staff look after the patients without any negligence and rendered service with utmost care and precaution. There is no deficiency of service on the part of the opposite parties and the deficiency will be sated only expert in a professional field. After the death of the patient the enquiry also made by the DMHO and other members, the committee also opined that there is no negligence on the part of the OP 2 to 10 herein and also the doctors who treated the patient at Vijayawada also opined that due to failure of multiple organs the patient was died. But the complainant creating unnecessary litigation. Once the opposite parties are faced the prosecution by enquiry and again facing the same before the Hon'ble authority does not arise as a person cannot be punished for the same offence more than once. Even abused the doctors and other staff in unparliamentarilylanguage and the same was captured by the surveillance cameras which was arranged in the Government Hospital. But the same was taken in lenient manner as the complainant lost his daughter.

9. They further submitted that'consumer' means any 'person' who hires or avails of any services for a consideration which has been paid or promised or partly paid an partly promised and incudes 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. It is further submitted that 'consideration' mentioned in definition of consumer means fees may have been fully paid in cash or cheque or undertaking that it will be paid, which is accepted by the doctor/ hospital. The fees may have been given partly (as advance)

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with the understating that the remaining bill will be paid subsequently. The payment may be done by the patient himself or by someone else for the patient. A person who receives medical treatment in Government hospital or charitable hospital free of cost is not a consumer under the Act. In case of death of a patient who is a consumer, legal heirs (representatives) of the deceased will be considered as consumer. If the payment has been made by any person who is not a legal heir of deceased he too will be considered as consumer. The complainant is not at all competent person to file compensation petition as he is not at all depend upon his daughter and the husband of the deceased patient is alive. In the case of death of the patient legal heirs of the deceased have locusstandi to file complaint under the Act.

10. It is further submitted that service rendered at Government hospital / health center / dispensary where no charge what so ever is made from any person availing the services and all patients (rich and poor) are given free service is outside the preview of the expression service as depend in Sec. 2 (1) (o) of the Act. Further it is submitted that 3 judges bench of Hon'ble Apex Court in the land mark case of Indian Medical Association vs VP santa reported in AIR 1996 SC 550 discussed why service rendered to a patient by a medical practitioner (except where the doctor renders services free of charge) to every patient or under a contact of personal service would fall within the ambit of the deficiency of service of the Consumer Protection act 1986. It is further submits that the tem negligent is defined the options of lack of care that a reasonable person should have taken in the circumstances of the case. The complaint is liable to be dismissed as the complainant failed to discharge the owners to prove negligence or deficiency in service on the part of the opposite parties.

11. It is further submits that the treatment is depend upon the body nature of the patient but herein opposite parties take proper care and applied their skill and treated the patient. But due to irregular checkups and other reasons the patient died due to multiple organs failed. Due to the death of the patient taking advantage of the same the complainant blackmailing the opposite parties and extract money under the guise of legal proceedings. Under the above circumstances it is prayed that to dismiss the complaint with exemplary costs.

12. The opposite parties 2, 3 and 5 to 10 filedmemo adopting the written version filed by the OP1.

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13. To prove this case the complainant filed proof affidavit and additional affidavit as PW1 and marked Ex.A1 office copy of the registered notice dated 15.02.2016 got issued by the complainant to Superintendent government hospital machilipatnam; Ex.A2 postal acknowledgement; Ex.A3 office copy of registered notice dated 26.05.2016 issued to the opposite parties 2 to 10 along with postal receipts;

Ex.A4 photo stat copy of endorsement given by the postal department; Ex.A5 photo stat copy of woman development and child care card; Ex.A6 photo stat copy of certificate issued by CAS; Ex.A7 photo stat copy of paper clipping; Ex.A8 photo stat copy of the death certificate of Kondeti Siva Parwathi; Ex.A9 photo stat copy of the application submitted to DMHO Machilipatnam under right to the information act;

Ex.A10 photo stat copy of reply given by DMHO along with enquiry report and also details of the doctors, staff nurses and other staff who are in duty on 21.11.2015;

Ex.A11 Application dated 18.02.2016 submitted by DMHO Machilipatnam under Right to Information Act; Ex.A12 case sheet record submitted under Right to information Act dated 19.04.2016; Ex.A13 application submitted to DMHO Machilipatnam under RTI dated 18.02.2016; Ex.A14 photo stat copy of the case sheet record submitted under RTI belonging to Vijayawada hospital; Ex.A15 photo stat copy of application submitted to DMHO Machilipatnam under RTI dated 11.08.2016;

Ex.A16 Photostat copies of the statements taken by the enquiry office from duty doctors, nurses and other staff who are on duty on 21.11.2015; Ex.A17 photo stat copy of death slip given by the Dr. Sravya; and Ex.A18 photo stat copy of scanning slip.

14. No witness is examined and no document is marked on behalf of the opposite parties.

15. Arguments heard and perused the complaint and written version filed by the opposite parties.

16. The complainant filed present complaint under Protection Act, 1986 for compensation against opposite partiesi.e., Government Hospital Machilipatnam and doctors for compensation alleging the negligence and deficiency in service on part of the opposite parties. The opposite parties raised objection in written version that the complaint is not maintainable before the Consumer Disputes Redressal Commission under Consumer Protection Act, 1986 (herein after called Act) because service

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rendered by the opposite parties i.e., doctors, nurses and other staff who are in Government Hospital, Machilipatnam on free of charge is outside the purview of the expression as defined in Sec.2 (1) (o) of the Consumer Protection Act and the complainant is not a consumer within the meaning of the Section 2 (1) (d) (ii) Consumer Protection Act, 1986. Since the opposite parties challenged the maintainability of the complaint under Consumer Protection Act there is no need to go into the merits of the case unless and until maintainability of the complaint is decided.

17. In terms of Section 2(1) (d) (ii) of the Act, a consumer is the one who hires or avails of any services for a 'consideration' which has been paid or promised or partly paid or partly promised. Section 2 (1) (o) "service" means service of any description which is made available to the 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 rendering of any service free of charge or under a contract of personal service.

18. It is an admitted fact that the services rendered by the opposite parties i.e., doctors, nurses and other staff are working in opposite party No.1 Government hospital Machilipatnam.The contention of the opposite parties is that since services rendered by the opposite parties who are working in Government Hospital where no charge is levied is outside the purview of the Consumer Protection Act.

19. In support of their contention the opposite parties relied upon 3 Judges bench of Hon'ble Apex Court in the land mark case of Indian Medical Association Vs. V.P. Shanta reported in AIR 1996 SC 550.In this important judgement on medical services, the Supreme Court examined the liability of medical professionals, and Hospitals, including the Government and charitable hospitals. On the basis of discussion the Apex Court at the following conclusions

1) Service rendered to a patient by a Medical Practitioner (except where the doctor render service free of charge to every patient or under a contract of personal service) by way of consultation, diagnosis on treatment fall within the ambit of service as defined in Section 2 (1) (o) of the Act.

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2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and /or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

3) A 'contract of personal service' has to be distinguished from a 'contract for personal services'. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the partient cannot be regarded as service rendered under a 'contract of personal service'. Such service is service rendered undedr a 'contract for personal services' and is not covered by exclusionary clause of the definition of 'service' contained in Section 2 (1) (o) of the Act.

4) The expression ' contract of personal service' in Section 2 (1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2 (1) (o) of the Act.

5) 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.

6) Service rendered at a non-Government hospital/ Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is out side the purview of the expression '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.

7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression 'service' as defined in Section 2 (1) (o) of the Act.

8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge 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 fr4ee of charge to persons who are not in a position to pay for such services. Free service, would also be

"service" and the recipient a "consumer" under the Act.

9) Service rendered at a Government hospital/ health center/ dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the

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purview of the expression '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.

10) Service rendered at a Government hospital/ health center/ 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.

11) Service rendered by a medical practitioner or hospital/ nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of 'service' as defined in Section 2 (1) (o) of the Act.

12) Similarly, where, as part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital / nursing home would not be free of charge and would constitute 'service' under Section 2 (1) (o) of the Act.

20. The conclusion No.9 in the above said decision is directly applicable to the present facts of the case because in the present case it is not the case of complainant that he or his deceased daughter or any of his family members paid amount to services rendered by the opposite parties, doctors and the nurses etc. working in opposite party No.1 Government Hospital, Machilipatnam to the daughter of the complainant. Since services rendered by the opposite parties doctors and the nurses etc. working in opposite party No.1 Government Hospital, Machilipatnam to the daughter of the complainant on free of cost the complainant could not be covered under the definition of Consumer to avail this remedies under the Consumer Protection Act. Since services rendered by the opposite party No.1 who are working in Government Hospital Machilipatnam where no charge is levied is outside the purview of the Consumer Protection Act.

21. The above said three Judges bench of Apex Court judgment referred in the recent judgement of Apex Court in Nivedita Singh Vs. Dr. Asha Bharthi & others in Civil Appeal No.103 of 2012 judgment dated 07.12.2001. In the said case the Appeal is directed against an order passed by the National consumer Disputes Redressal

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Commission (for short, NCRDC) on 26.05.2010 affirming the order passed by the District Consumer Disputes Redressal Forum and the State Consumer Disputes Redressal Commission dismissing the complaint filed by the appellant inter alia on the ground that the appellant was not a consumer within the meaning of Section 2 (1) (d)

(ii) of Consumer Protection Act, 1986. In the said case also the appellant no consideration was paid to the doctors towards in the Government servants. In the said decision the Apex Court held that a medical officer who is employed in a hospital renders service on behalf of the hospital administration and if the service as rendered by the hospital does not fall within the ambit of 2 (1) (O) of the Act being free of charge, the same service cannot be treated as service under Section 2 (1) (o) for the reasons that it has been rendered by medical officer in the hospital who receives salary for the employment in the hospital. It was this concluded that the services rendered by employee-medical officer to such a person would therefore continue to be service rendered free of charge and would be outside the purview of Section 2 (1) (o) of the Act.

22. The Apex Court judgments are directly applicable to the present case because in the present case also the service rendered by the opposite parties - doctors and nurses etc., in the Government Hospital Machilipatnam to deceased who is the deceases daughter of the complainant on free service.

23. Further the decisions cited by the learned counsel for complainant P. Sudhakar Vs. Gowri Gopal Hospital CD No.14 of 1998 on the file of the AP State Commission, Hyderabad dated on 14.02.2003. (2) Dr. Chanchal Kumar Saha vs Sri Milton Roy on 8^thSeptember, 2022 of State Consumer Disputes Redressal Commission, judgment dated 08.09.2022. (3) Vishnu Priya Giri Vs G.M. Modi Hospital Research center 2022 SCC online NCDRC 58 are not much helpful to the complainant as they are pertaining to the medical service rendered by the doctors in private hospital but not pertaining to the Government Hospital. Further decision reported in Bhanu Priya Vs State of others reported in AIR 1996 SC 2377 submitted by the learned counsel for complainant is also not applicable to the present case in the above decision the suit was filed before Civil Court for compensation on ground of negligence of the doctors but not pertaining to the case decided by the Consumer Disputes Redressal Commission.

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24. As per the above discussion and decisions of Apex Court judgments relied upon by the opposite parties the complainant is not a consumer within the meaning of the Section 2 (1) (d) (ii) under Consumer Protection Act and the service rendered by the opposite parties being a free of charge is outside the purview of the Consumer Protection Act. As such this District Consumer Disputes Redressal Commission did not go into the merits of the case i.e., whether there is any deficiency in service rendered by the opposite parties or there is negligence on their part. Therefore this District Commission lacks inherent jurisdiction to entertain the present consumer complaint under Consumer Protection Act. Consequently the complaint is not maintainable under Protection Act, 1986.

25. In the result, complaint is dismissed on the ground that the complainant is not a consumer within the meaning of Section 2 (1) (d) (ii) of Consumer Protection Act, 1986. No order as to costs.

Typed to my dictation by the Junior Stenographer, corrected by me and pronounced by us in the open Commission, this the 30^thday of December, 2022. Sd/- Sd/- Sd/-

President Member Member

District Commission-I, District Commission-I, District Commission-I Krishna at Machilipatnam Krishna at Machilipatnam Krishna at Machilipatnam Appendix of Evidence:

Witnesses Examined:

For the Complainant: For the Opposite Parties:

PW1: Addanki Lakshmana. -NIL-

Documents Marked:

On behalf of the Complainant:

Ex.A1 office copy of the registered notice dated 15.02.2016 got issued by the complainant to Superintendent government hospital Machilipatnam;

Ex.A2 postal acknowledgement;

Ex.A3 office copy of registered notice dated 26.05.2016 issued to the opposite parties 2 to 10 along with postal receipts;

Ex.A4 photo stat copy of endorsement given by the postal department;

Ex.A5 photo stat copy of woman development and child care card;

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Ex.A6 photo stat copy of certificate issued by CAS;

Ex.A7 photo stat copy of paper clipping;

Ex.A8 photo stat copy of the death certificate of Kondeti Siva Parwathi;

Ex.A9 photo stat copy of the application submitted to DMHO Machilipatnam under right to the information act;

Ex.A10photo stat copy of reply given by DMHO along with enquiry report and also details of the doctors, staff nurses and other staff who are in duty on 21.11.2015;

Ex.A11Application dated 18.02.2016 submitted by DMHO Machilipatnam under Right to Information Act;

Ex.A12 case sheet record submitted under Right to information Act dated 19.04.2016;

Ex.A13 application submitted to DMHO Machilipatnam under RTI dated 18.02.2016;

Ex.A14 photo stat copy of the case sheet record submitted under RTI belonging to Vijayawada hospital;

Ex.A15photo stat copy of application submitted to DMHO Machilipatnam under RTI dated 11.08.2016;

Ex.A16Photostat copies of the statements taken by the enquiry office from duty doctors, nurses and other staff who are on duty on 21.11.2015;

Ex.A17photo stat copy of death slip given by the Dr. Sravya; and Ex.A18 photo stat copy of scanning slip.

On behalf of the Opposite Parties: -NIL-

Sd/-

President,

District Commission - I,

Krishna at Machilipatnam.

Case No. 60 of 2017.

Date of Disposal: 30.12.2022.

Free copy of Order delivered to

Complainant/ Opposite party

By Hand or dispatched on …………………..

// T.C.B.O. //

Sheristadar,

District Commission - I,

Krishna at Machilipatnam.