Case: Kishore Lal Vs. Chairman E.S.I.Corporation

the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it. We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and the ex-employees for which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442): "Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property the definition involves three constituents of negligence:(1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty;(2) breach of the said duty; and(3) consequential damage.Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort." Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We are really concerned in this case with conclusions Nos. (9), (10), (11) and (12). Conclusion No. (9) is in regard to the service rendered at a government hospital/health center/dispensary where no charges whatsoever are made from any person and they are given free service, which would not be a service under Section 2(1)(o) of the CP Act. Conclusion No. (10) lays down that where the service is rendered at a government hospital/health center/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of the expression ‘service. Conclusion No. (11) says that if a patient or his relation availed of the service of a medical practitioner or hospital/nursing home where the charges for consultation, diagnosis and medical treatment are borne by the insurance company, then such service would fall within the ambit of service. Similarly, under conclusion No. (12), where as a part of the conditions of service the employer bears the expenses of medical treatment of an employee and his family members dependent on him, then the service rendered by a medical practitioner or a hospital/nursing home would not be treated to be free of charge and would constitute ‘service under Section 2(1)(o).The service rendered by the medical practitioners of hospitals/nursing homes run by the ESI Corporation cannot be regarded as a service rendered free of charge. The person availing of such service under an insurance scheme of medical care, whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. We are of the opinion that the service provided by the ESI hospital/dispensary falls within the ambit of ‘service as defined in Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous.15. We shall now proceed to consider the second question raised by Shri Vijay K. Mehta, the learned counsel for the respondent that by virtue of Section 74 read with Section 75, and particularly Section 75(e), of the ESI Act, the claim made by the appellant would exclusively fall for decision within the jurisdiction of the Employees Insurance Court and that being the position the consumer forum has no jurisdiction to adjudicate upon the issue.e submission of the learned counsel for the respondent is that the claim made by the appellant before the consumer forum raises a dispute in regard to damages for negligence of doctors in the ESI hospital/dispensary and would tantamount to claiming benefit and the amount under the ESI Act provisions and would fall within clause (e) of Section 75(1) and, therefore, it is the Employees Insurance Court alone which has the jurisdiction to decide it.We are afraid that we cannot agree with the submission made by the learned counsel. Section 75 provides for the subjects on which the jurisdiction shall be exercised by the Employees Insurance Court. Clause (e) of Section 75(1) gives power to the Employees Insurance Court to adjudicate upon the dispute of the right of any person to any benefit and as to the amount and duration thereof. The benefit which has been referred to, has a reference to the benefits under the Act, i.e., the ESI Act. The Employees State Insurance (Central) Rules, 1950 (hereinafter referred to as "the Rules") have been framed in exercise of the powers under Section 95 of the ESI Act. Rule 56 provides for maternity benefits, Rule 57 for disablement benefits, Rule 58 for dependents benefits, Rule 60 for medical benefits to insured person who ceases to be in an insurable employment on account of permanent disablement and Rule 61 for medical benefits to retired insured persons. Thus, these are the benefits which are provided under the Rules to the employees and thefor which claim can be made in the Employees Insurance Court. The appellants claim has no relation to any of the benefits which are provided in the Rules for which the claim can be made in the Employees Insurance Court. The appellants claim is for damages for the negligence on the part of the ESI hospital/dispensary and the doctors working therein.19. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence.20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings toof action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and (c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees Insurance Court. An Employees Insurance Court has jurisdiction to decide certain claims which fall under(2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees Insurance Court is expressly barred by virtue of(3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of(1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees Insurance Court under clauses (a) to (f) of(2) of Section 75 if it is a consumers dispute falling under the CP Act.21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of(1) or (2) or (3) of Section 75 of the Employees State Insurance Act, 1948.