RAM KALI vs Delhi Administration

BRIEFLY the facts of the case are that complainant No. 1 is the wife of complainant No. 2, Sh. Babu Ram. Complainant No. 2 got himself operated for sterilization on 22.1.86 in the Employees State Insurance Hospital (ESI Hospital) situated at Basai Darapur, Delhi which is being run by the Delhi Administration. The operation was performed by Dr. V. Bhandari, defendant No. 3 and the certificate was issued regarding it by Medical Supdt. of the Hospital, defendant No. 2. After one week the stitches were removed by the doctor. It is alleged that they were assured that the operation was successful.

ON 1st December, 1988 complainant No. 1 was not feeling well. Complainant No. 2 took her to Guru Teg Bahadur Hospital, situated at Shahdara. The doctor who examined her informed both the complainants that she i.e. complainant No. 1, was pregnant at that time and carrying a four months pregnancy. Thereafter, complainant No. 2 got himself medically examined to find out whether his sterilization operation was intact or not. It was found that his sterilization operation was not successful. It is alleged that the operation was not successfully performed due to the negligence of defendant No. 3. Complainant No. l again visited the ESI Hospital on 20th December, 1988 and she was informed by the doctor that the vasectomy operation of complainant No. 2 had failed. The complainants consequently filed a complaint for recovery of Rs. 5,00,000/- against the defendants The complaint has been contested by the respondents who controverted the allegations in the complaint. They further pleaded that the State Commission under the Act had no jurisdiction to try the complaint as the complainant No. 1 was not a consumer within the definition of the word as defined in Section 2(i)(d) of the Consumer Protection Act. It Is further pleaded that the Consumer Protection Act came into force in 1987, whereas the operation was performed in January 1986. The Act is not retrospective in application and consequently the complaint can not be maintained under it.

The first question that arises for determination is whether the complaint is maintainable by the complainants under the Consumer Protection Act before the State Commission. The hospital in question is an Employees State Insurance Hospital and is being run by the State Insurance Corporation constituted under the Employees State Insurance Act, Normally such hospitals are meant for Industrial workers. However, the Govt. of India in view of enormous growth of population realised that its control was necessary in order to improve economic conditions of the masses. Therefore, various hospitals were designated to perform family planning activities as per All India Post Partum Programmes of Hospitals (to be referred as AIPPH). A note has been placed by the respondents on the record, wherein it has been stated that the Director (Health Services), Delhi Administration vide his letter No. F60(19)-81/DFW/ACCTTS/1049/63 dated 6th February, 1982 recognised the ESI Hospital Basai Darapur, New Delhi as type ''B'' PP Unit to provide family welfare services not only to the beneficiaries but to the general public also. It is further stated therein that the said services were provided free of cost and incentive money was provided to those who took benefit of the service from the said hospital. With this note a photostat copy of Chapter I of All India Hospital Post Partum Programme, 1986-87 has been produced. The relevant portions of the said programme are as follows:- 1. Historical Background For decades there have been numerous but isolated efforts to bring the message of Family Welfare to the attention of recently delivered women in hospitals. After prolonged experimentation, the social scientists have come to consensus that in the field of population control. Post Partum period (post delivery) is the point of highest motivation for family planning and hence the most opportune time for the efficient spread of information and service, when they are by and large most receptive to the idea of limiting the family size and voluntarily accept the family welfare methods.

WITH this idea in view. the Population Council, New Yark decided to develop a coordinated programme known as Post Partum Programme officially starting from April 1966 by involving 25 hospitals from various countries, Safdarjang Hospital, New Delhi and S.A.T. Hospital, Trivendrum represented India in this programme. Encouraged with successful implementation of the programme in these two hospitals and viewing the merits of the programme, the Government of India decided to include the "programme in its Five Year Plans starting from 1969 onwards. Since then the programme is continuously being implemented in the country. 2. Definition Post Partum Programme can be defined as the maternity centred hospital based approach to family welfare programme to motivate women within the reproductive age group (15-44) or their husbands for adopting small family norm through education and motivation particularly during pre-natal, natal and post natal period.

1 Functions and objectives of the Post Partum Unit. The Post Partum Unit as a whole is responsible for carrying out the following functions:- (a) .. .. .. .. .. .. . (b) .. .. .. .. .. .. . (c) To extend maternal and child health and family welfare services and Health nutrition education through integrated Urban Family Welfare Centre to the general community in the vicinity of the hospital. (d) . .. .. .. .. .. . (e) . .. .. .. .. .. .

2 Job Functions of Post Partum Unit The Post Partum Unit has been assigned the following functions :- (i) To propagate information pertaining to family welfare programme to individual and groups in the community served by the Centre. (ii) By extension education technique through community participation, impart family welfare education, help in the planning and decision making process for adoption of small family norm and acceptance of methods of contraception. This will include:

(a) Finding formal and informal leaders and training them in family welfare activities. (b) Helping leaders to organize their own groups to popularise small family norms. (c) Provision of services and supplies at the door steps of the people. (iii) To coordinate family welfare activities and resources (viz hospitals, private agencies, clinics etc.) that serve the community so that there may be maximum use of the existing facilities and resources. (iv) To work closely with MCH staff working in MCH clinics and maternity wards to ensure that every staff member including aya and female attendant are knowledgeable to carry on with family welfare activities and advise the general population to adopt small family norm. (v) . .. .. .. .. .. . (vi) . .. .. .. .. .. .

Programme Implementation The Post Partum Programme is a centrally sponsored Plan scheme of Government of India; as such, hundred per cent assistance is provided to State Government for implementing the programme on year to year basis. xxxx xxxxx xxxx xxxx 8. 1. (1) Administrative and Fiscal Aspects. Since the programme is fully centrally aided, the Department of Family Welfare in the Ministry of Health and Family Welfare works in close coordination with the State/ Union Territory Governments.

State Family Welfare Bureau under the Directorate of Health and Family Welfare services of the State/Union Territory Govts. concerned, controls the administration of the participating institutions by providing necessary inputs etc. State Govts. are directly responsible for framing of recruitment rules, laying down of Educational Qualifications, experiences, fixation of pay scales etc. as per guidelines provided by Govt. of India from time to time for smooth functioning of the programme.

IT is evident from the above extracts that the AIPPH was included in the Five Years Plan of Government of India in 1969 and is being implemented in the country since then. IT deals with family welfare plans. One of the functions of the Post Partum Unit is to coordinate family welfare activities and resources (viz hospitals, clinics etc.). IT is a Central Government sponsored scheme and hundred per cent help is given to the State Governments for implementing the programme. The name of the hospital in dispute appears in the list of the hospitals attached with the programme. It is thus evident that Post Partum Scheme in the hospital in dispute is being run by the government. The respondent has also attached a notification dated 6th February, 1982 of Delhi Administration by which posts for Partum Unit in ESI Hospital in dispute were created by the Administration. It is stated therein by the Under Secretary (Medical), Delhi Administration that he had been conveyed the sanction of Lt. Governor, Delhi for the creation of temporary posts in the Post Partum Unit of ESI Hospital, Basai Darapur. From the aforesaid documents it is clear that the Post Partum Unit in respondent hospital is being financed by the government. Now it is to be seen that if the hospital is financed by the government whether a complaint under the Consumer Protection Act, can be filed against it. It is not necessary to elaborate the argument as the matter has been decided by the National Commission in Consumer Unity Interest Society, Jaipur v. State of Rajasthan and others (First appeal No. 2 of 1989) decided on 15th December, 1989. The complainant in that case was a registered consumer association. It filed a complaint of behalf of a lady who underwent an abdominal tubectomy operation at the government hospital, Kots as part of clinics etc. ). It is a Central Government sponsored scheme and hundred percent help is given to the State Governments for implementing the programme. The name of the hospital in dispute appears in the list of the hospitals attached with the programme. It is thus evident that Post Partum Scheme in the hospital is dispute in being run by the government. The respondent was also attached a notification dated 6th February, 1982 of Delhi Administration by which posts for Partum Unit in ESI Hospital in dispute were created by the Administration. It is stated therein by the Under Secretary (Medical), Delhi Administration that he had been conveyed the sanction of Lt. Governor, Delhi for the creation of temporary posts in the Post Partum Unit of ESI Hospital, Basai Darapur. From the aforesaid documents it is clear that the Post Partum Unit in respondent hospital is being financed by the government. Now it is to be seen that if the hospital is financed by the government whether a complaint under Consumer Protection Act, can be filed against it. It is not necessary to elaborate the argument as the matter has been decided by the National Commission in Consumer Unity Interest Society, Jaipur v. State of Rajasthan and others (First appeal No. 2 of 1989) decided on 15th December, 1990. The complainant in that cast was a registered consumer association. It filed a complaint on behalf of a lady who underwent an abdominal tubectomy operation at the government hospital, Kots as part of the family planning programme. Some complications developed after the operation and she became invalid. She claimed that she was entitled to an amount of e.g. lack and add as compensation for loss and injury suffered by her. It was observed by the State Commission that neither the lady nor her husband had hired any services for consideration for the purpose of performing this operation for sterilization and therefore they would not be regarded as consumers. The complaint was consequently dismissed. The correctness of the above conclusion was challenged before the National Commission. The Commission agreed with the conclusions of the State Commission and affirmed its order. The relevant observations of this National Commission are as follows:- "On a strict reading of the provisions of the Act as a whole it would be seen that in enacting the statute the intention of Parliament was to provide protection and relief to four categories of consumers namely:- (i) Persons who have suffered loss or damage as a result of any unfair trade practice adopted by any trader: (ii) Persons who have purchased goods for consideration which are found to suffer from one or more defects: (iii) Persons who have purchased goods for which the trader has charged a price in excess of the price fixed by or under any law for the time being enforced or displayed on the goods or any package containing such gods. (iv) Persons who have hired any services for consideration when the services provided are found to suffer from deficiency in any respect. 12. These categories of consumers alone have been conferred the right to approach the redressal forums constituted under the Act and provisions have been made enabling those formus to grant them cheap, speedy and efficacious remedies to set right their grievances. It is in the context this general scheme of the Act that we have to interpret the definition of the expression "Consumer" contained in Sub-clause (11) of Clause (d) of Section 2(1). In order to satisfy the said definition, a person should have "hired any serviced for a consideration The ordinary connotation of the expression hire is "to acquire the temporary use of a thing or the services of a person in exchange for payment".

(Collins English Dictionary) "to procure the use of services of, at a prices": to grant temporary use of for compensation" (Chambers Twentieth Century Dictionary). 23. This is the ordinary, plain, grammatical meaning of the expression "hire" as popularly understood and it would appear reasonable to assume that it is only in the sense that the word has been used in sub-clause (ii) of Section 2(1)(d)of the Act. If Parliament had intended to treat any person who avails himself of any services as a consumer, one should have expected the opening words of Sub-clause (ii) to be "avails himself of any services". Instead, Parliament has used the expression "hire" in contradistinctions with the expression "avail of occurring in the subsequent part of the same sub-clause. The use of the two distinct expressions in different parts of the same sub-clause is an indication that they were not meant to convey like same meaning. "

THE Commission ultimately come to the conclusion that a person who availed himself of the facility of medical treatment in the government hospital was not a consumer and the facility offered in the government hospitals could not be regarded as service hired for consideration. Hence no complaint under the Act could be preferred either by any such person or by a consumer association on his behalf.

THE above observations are fully application to the present case. We are, therefore, of the opinion that the complainants are not consumers within the meaning of the said word as defined in the Act and they were not entitled to file the present complaint against the respondent hospital. The second question that arises for consideration is, whether the complaint is maintainable regarding the cause of action, which arose prior to coming into force of the Consumer Protection Act. We have already held in M/s. Prabhat Bag Factory v. United India Insurance Co. (Complaint No. 32 of 1990) decided on 13.11.90 that a complaint is maintainable on the cause of action; which arose prior to coming into force of the Act. Consequently we are of the opinion, that the complaint can not be dismissed on this ground.

In view of our decision on point No. 1 it is not necessary to deal with the case on merits.

FOR the aforesaid reasons we dismiss the complaint on 1st preliminary objection. The complainants may, however seek their remedy in an appropriate Court, if so advised. No order as to costs. Complaint dismissed.