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Judgment
V.K. Jain, Presiding Member
The complainant while she was admitted in Chinsurah Imambara Sadar Hospital on 19.6.2014 was advised X-ray in the same hospital. The x-ray room was situated on the second floor of the hospital. The complainant being injured had to use the lift of the hospital, in order to reach the x-ray room on the second floor. She therefore entered the lift, along with her son. The lift however, started moving upward even before its door could close. One portion of the lift floor caved in, as a result of which the complainant fell from the stretcher and was hanging for more than ten minutes, putting her life in danger. She was rescued by the security guards but sustained injuries to her lower limbs before she could be rescued. Alleging deficiency in rendering services on the part of the opposite parties, namely Chinsurah Imambara Sadar Hospital, its Superintendent, Principal Secretary, Government of west Bengal and Health & Family Welfare Department and the Executive Engineer, PWD (Electrical), she approached the concerned State Commission by way of a consumer complaint, seeking compensation on account of the injuries suffered by her due to lack of maintenance of the lift that had been installed in the hospital.
The complaint was resisted only by the petitioner, who in his written version, inter-alia pleaded that the lift had auto-door option and was manned, but the son of the complainant tried to start the lift without liftman. It was also stated in the written version that the lift was inspected after this accident and the lift service has been kept suspended. Another lift has been provided in the hospital.
Vide impugned order dated 6.8.2018, the State Commission directed as under:
"The complaint case stands allowed on contest in part against the OP No.4 and dismissal ex-parte against other Opposite Parties with a cost of Rs.25,000/- being payable by the OP No.4 to the complainant within forty days from today. Within the same period, the OP No.4 shall also pay compensation of Rs.2,00,000/- to the complainant i.d., simple interest @ 9% p.a. shall accrue over the sum of Rs.2,00,000/- from the date of filing this complaint case till full and final payment is made."
Being aggrieved from the order passed by the State Commission, the appellant is before this Commission.
It is contended by the learned counsel for the appellant that the complainant cannot be said to be a consumer since no charges were paid by her to the hospital. Attention is drawn to an application, which the appellant had filed before the State Commission, seeking dismissal of the complaint, in which it was inter-alia alleged that no consideration was paid by the complainant, either directly or indirectly. Reliance is placed upon to the decision of the Hon'ble Supreme Court in Indian Medical Association Vs. V.P. Shantha & Ors., (1995) 6 SCC 651 .
In V.P. Shantha (supra), the Hon'ble Supreme Court inter-alia held as under:
"55. On the basis of the above discussion we arrive at the following conclusion:
Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit 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."
(9) Service rendered at a government hospital / health centre/ dispensary where no charge whatsoever is made from any person availing of the services and all patients (rich and poor) are given free service - is outside the purview of the express '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 centre / dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the express '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."
The learned counsel for the appellant has drawn my attention to paras 6, 11, and 16 of the application, which the appellant had filed before the State Commission, seeking dismissal of the complaint:
"6. To become a consumer, the complainant has to pay the consideration money for hiring service from the opposite party No.4 but in the instant case, the complainant has not at all paid any money to the OP No.4 either directly or indirectly and as such the complainant cannot be termed a consumer in view of the provisions of the Consumer Protection Act, 1986.
That the Hon'ble Commission is not having jurisdiction to entertain the case since the complainant himself assessed the compensation and further, the complainant has not specified the value of the service. So on the basis of the compensation as claimed by the complainant, the jurisdiction of the consumer forum cannot be decided whereas the consideration money, if at all paid by the complainant to the OP No.1 is only Rs.2/-. So on the basis of the consideration money of Rs.2/-(Rupees two), if any, the complainant cannot claim the amount of Rs.24,87,000/- and that too, the opposite party No.2 is not related as regards the providing of medical services to the mother of the complainant and as such, the present complaint is not at all maintainable and the same needs to be dismissed.
That the complaint is also not maintainable in the eye of law since no Government Hospital receives any consideration for rendering medical service to the patients and following the ratio of judgment in Indian Medical Association Vs. B.P. Shanta, it can be safely said that the same principle applies here and when Government hospital is not receiving any consideration, the complaint, cannot be held maintainable under COPRA."
It would thus be seen that the appellant did not even claim before the State Commission that the services to a patients in the hospital where the complainant got injured are rendered absolutely free of charge. Though, a general averment is made claiming that no Government Hospitals receives any consideration for rendering medical services to the patients such a general statement cannot be correct since several government hospitals do charge, atleast from some of the patients, for some of the services rendered to them. Moreover, no affidavit of anyone from the hospital or even from the Health & Family Welfare Department of Government of West Bengal was filed to prove that no patient in the said hospital is charged for any service whatsoever, be it consultation with doctor, diagnostic procedure or a surgery. The decision of the Hon'ble Supreme Court in V.P. Shantha(supra), in my opinion, is of no avail to the appellant.
It is true that the appellant being an Executive Engineer in PWD of the West Bengal Government, no consideration by the complainant or by other patient taking treatment in the said hospital would be paid to him. But, if some patients were being charged atleast for providing some services in the hospital, the complainant would be a consumer of the said hospital. The hospital where the complainant was admitted was a hospital owned and managed by Government of West Bengal. Being entrusted with the duty of maintaining the lifts provided in the hospital, the appellant was also associated with the administration of the hospital. He thereby became a part and parcel of the hospital management. The compensation if awarded against the hospital would be paid by Government of West Bengal. The same would be the position if the compensation is awarded against the Executive Engineer, PWD (Electrical), or the Principal Secretary, Government of West Bengal, Health & Family Welfare Department. Therefore, it would not be necessary to set aside the compensation awarded against the appellant while simultaneously awarding compensation against the hospital when in both the cases, the compensation would be payable by the Government of West Bengal.
The State Commission took the view that the appellant was maintaining the lifts in the hospital for a monetary consideration. If the appellant is taken as an entity different form the hospital and was being paid by the hospital for maintenance of the lifts, the complainant she being the beneficiary of the services of the appellant hired by the hospital would be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act.
On merits, the Medical Board, which was set up by the hospital found that the complainant had suffered injury due to accident involving the lifts, while undergoing treatment in the hospital.
It was alleged by the appellant that the lift was operated by the son of the complainant, who had no experience of operating the lift. The State Commission noticed in this regard that no explanation had been provided by the appellant as to why the liftman was not present inside the lift. The absence of a liftman to operate the lift installed in a hospital by itself would be a deficiency in the service, since the presence of a liftman would be essential to operate a lift being used by the patients, some of whom may be alone. In any case, the floor of the lift cannot cave in merely because the lift is operated by a layman. Had the lift been maintained properly, no portion of the lift floor would have caved in irrespective of whether the lift was operated by a liftman or by a layman.
As far as the quantum of compensation is concerned, the amount awarded by the State Commission being very modest, does not call for any interference by this Commission in exercise of its revision jurisdiction. The appeal, being devoid of any merit is hereby dismissed with no order as to costs.