Regional Cancer Centre vs R. Bahuleyan

Dr.Inder Jit Singh, Member

This revision petition (RP) has been filed by the petitioner against the order dated 9th October 2019 of State Consumer Disputes Redressal Commission, Kerala Thiruvananthapuram (hereinafter referred to as the State Commission)  in Appeal No. 728 of 2015 against the order dated 30th July 2015 of District Consumer Disputes Redressal Forum, Thiruvananthapuram, Kerala (hereinafter referred to as the District Commission) in CC No. 145 of 2009. The petitioner viz Regional Cancer Centre Thiruvananthapuram, is a state owned society formed jointly by Government of Kerala and Government of India running a Cancer Care Hospital and Research Centre. The District Forum, Thiruvananthapuram has allowed the complaint filed by the Respondent herein and the Petitioner herein was directed to pay an amount of ₹4,40,466/- as reimbursement for the cost of medicines used in the treatment. The Petitioner had contented before the District Forum that in addition to  chemotherapy, targeted therapy (biotherapy) with Mabthera, which was a new addition to the cancer treatment, was also given. The said new treatment (biotherapy) with mebthera was not covered by the terms of the scheme to which the respondent had become a member, the respondent had agreed to abide by the rules and conditions laid down in the prospectus of the scheme apart from agreeing to accept any decision of the society as final regarding membership, facilities and such other aspects relating to his treatment. The District Forum came to the conclusion that action of the petitioner herein in recovering from the respondent the cost of the medicines provided to him amounted to deficiency in service and therefore, directed the cost thereof to be reimbursed to the respondent. The State Commission in appeal found no infirmity in the order passed by the District Forum. Aggrieved, the petitioner filed writ petition in the Hon’ble High Court of Kerala, contending that respondent herein is beneficiary of a gratuitous and free service offered by the petitioner under the CCL and hence is not a consumer within the preview of Consumer Protection Act, 1986. The said petition was dismissed by the Hon’ble single judge of the High Court holding that petitioner herein has an effective alternate remedy against the judgement passed by the State Commission. Petitioner herein again filed Appeal before the division bench of the Hon’ble High Court. Hon’ble High Court observing that there is a remedy by way of Revision to the National Commission, declined to exercise jurisdiction under article 226 of the constitution, leaving it open to the petitioner herein to approach the National Commission, if so advised.

Office has submitted report that the revision has been filed with delay of 617 days.  The revisionist has filed IA/2574/2021 for condoning the delay in filing the revision. It has been stated that order of State Consumer Dispute Redressal Commission dated 09.10.2019 was challenged by the petitioner in Writ Petition (C) No.1998 of 2020, which was dismissed by the order dated 04.03.2021 on the ground of alternative remedy. Order dated 04.03.2021 was challenged in Writ Appeal No.618 of 2021, which was dismissed by the Division Bench on 13.08.2021, then this revision was filed on 22.10.2021.  Revisionist was bona fide litigating before the High Court which ultimately refused to interfere in the matter on the ground of alternative remedy.  As such, the period taken for prosecuting the Writ Petition as well as Writ Appeal is liable to be condoned.  Cause shown is sufficient. IA/2574/2021 is allowed, delay in filing the revision is condoned.

In the RP, the petitioner has by and large reiterated his contentions which were raised before the District Forum as well as State Commission. No new facts or law points or issues have been raised in the RP. It has been argued by the petitioner that the respondent had very clearly agreed to the condition that he would abide by the rules and conditions laid down in the prospectus for the cancer care for life scheme offered by regional cancer centre society Trivandrum and that he agreed to accept any decision of the society as final regarding membership, facilities and such other things related to his treatment. The membership to the scheme is subject to such other rules, conditions formulated by the petitioner cancer care institution and it is also subject to decisions taken by the petitioner cancer institution from time to time. The scheme does not cover all expenses relating to the diagnosis and treatment of cancer. The cancer care for life scheme will not include all the treatments associated with cancer treatment. Including all the treatment processes within the scheme will not be practical and the same was not contemplated during the formulation of the scheme. The scheme only provided reimbursement of money for the cost of drugs of chemotherapy. The targeted therapy is not covered under the scheme and the respondent was also made aware of the same before proceeding with the treatment, which he accepted without any demur. The real intention of the scheme was to have wider access to different sections of people in attaining affordable cancer treatment. Such schemes are meant to include basic treatment and drugs.

It was argued by the respondent that the scheme that the respondent enrolled in was for the advanced cancer treatment. The fact that respondent is bound by the decisions of the society does not give the society a free hand to take decisions contrary to the scheme and to the prejudice of individual scheme members. It is not alleged anywhere that the scheme was modified at any point to limit its coverage. The scheme in question was a part of a welfare initiative mooted by the government. The respondent made the payment in dispute in 2006 under duress, and has succeeded in each forum below as well as in the High Court. An execution petition that was filed in November 2019 has also been delayed due to the pendency of these proceedings.

Relying on judgement of the Hon’ble Supreme Court in Indian Medical Association vs. VP Shantha (1995) 6 SCC 651, the petitioner argued that a service rendered at Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients are given free service, is outside the preview of the expression ‘service’ as defined in the  Consumer Protection Act, 1986 and that the payment of a token amount for registration purpose only at the hospital will not alter the position. The scheme envisages only gratuitous service to the members who joined the scheme by making a nominal payment. Therefore, the respondent is not a consumer vis-a-vis petitioner. Therefore, the complaint is not maintainable.

The State Commission after considering various contentions of the petitioner herein has in its order dated 19th October 2019 observed as follows:

“It is worth noticing from the document Ext. P1 that sets out the terms and conditions of the scheme in question, that the appellant had undertaken to meet the expenses specifically mentioned in clause (1) thereof

“All charges for investigations and treatment including X-rays, Scanning, Radiation Therapy, Surgery and cost of drugs for Chemotherapy required for diagnosis and treatment of the patient at this centre. It will not include treatment for ailments other than cancer”.

The above clause specifically mentions “cost of drugs” as one of the items of expense that would be met by the appellant. It may be true that Mabthera, one of the medicines that was used in the treatment of the respondent, was newly developed drug that could not have been in the contemplation of the appellant when Ext.P1 was formulated. However, Ext. P1 does not exclude any such newly developed drug or entitle the appellant to claim the cost thereof, as sought for by the counsel for the appellant. Therefore, we are not satisfied that the appellant was justified in recovering the cost of the medicine from the respondent. The CDRF in the above circumstances was justified in ordering that the said amount was liable to be reimbursed to the respondent”.

After going through the scheme document and other relevant records and hearing the rival contentions of both sides, we find that reasons advanced by the petitioner in the RP for challenging the order dated 19th October 2019 of the State Commission are not valid. We find no infirmity and/or ground to intervene with the order passed by the State Commission. Accordingly, the Revision Petition is dismissed.

The pending IAs, in the Revision Petition, if any, also stand disposed off.