Kishore Lal vs Chairman, Employees State Insurance ...

Later, the appellant got his wife medically examined in a private hospital. The tests done revealed that his wife had been diagnosed incorrectly in the ESI dispensary; and that the deterioration in the condition of the appellant's wife was a direct result of the wrong diagnosis. The appellant filed a complaint under the Consumer Protection Act, 1986 (hereinafter referred to as "the CP Act") before the District Consumer Disputes Redressal Forum seeking (i) compensation towards mental agony, harassment, physical torture, pains, sufferings and monetary loss for the negligence of the authorities; (ii) direction for removal of, and improvement in, the deficiencies; and (iii) direction for payment of interest on the amount of reimbursement bills. The Corporation through its officers entered appearance and raised certain preliminary objections, namely, (i) that the complaint filed is not maintainable in the District Consumer Forum and is liable to be dismissed as the wife of the complainant was treated in the ESI dispensary, Sonepat, which is a government dispensary and the complainant cannot be treated as a consumer; and (ii) that the complainant is not a consumer within the definition of `consumer' in the CP Act and he is not entitled to file a complaint against the ESI dispensary. It was also contended that the facility of medical treatment in government hospital cannot be regarded as a `service' hired for consideration, apart from the other defences raised in the written statement.

2. The District Consumer Forum relied on the ratio of Birbal Singh v. ESI Corporation, 1993 II CPJ 1028, wherein on a complaint filed for compensation for being aggrieved by poor medical attention received by the late wife of the complainant at an ESI hospital, the Haryana State Commission had held that the complainants did not come within the ambit of the definition of `consumer' under the CP Act because of the gratuitous nature of the medical services provided. On this basis, the District Forum held that the services rendered by the ESI dispensary are gratuitous in nature and, therefore, out of the purview of the CP Act. Appeal was preferred to the Haryana State Consumer Disputes Redressal Commission and it was urged by the appellant that ESI is a scheme of insurance and hence the service rendered by the Corporation was not gratuitous. The State Commission relying on the judgment in Birbal Singh (supra) and Indian Medical Association v. V.P. Shantha and Others, (1995) 6 SCC 651 held that free medical services were not covered by the CP Act and upheld the judgment of the District Forum. Appellant preferred a revision before the National Consumer Disputes Redressal Commission, but the same was also dismissed in limine. Hence, this appeal by special leave.

9. In the case of Laxman Thamappa Kotgiri v. G.M. Central Railway & Ors., 2005 (1) Scale 600, where an employee of the railways had filed a complaint on the ground that his wife had been negligently treated at a hospital of the Central Railway as a result of which she had died, the State Commission concluded that since the hospital had been set up to treat railway employees predominantly and the service provided was free of charge it did not come within the definition of `service' under the CP Act and hence the complaint was not maintainable. On appeal to the National Commission, the judgment of the State Commission was upheld and the appeal filed by the employee was rejected. Thereafter, appeal was preferred to this Court. Allowing the appeal, this Court in paras 6 and 7 has held as under:

(c) (Omitted);

(e) claim under Section 70 for the recovery of the value or amount of the benefits received by a person when he is not lawfully entitled thereto; and

(f) any claim for the recovery of any benefit admissible under this Act.

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.

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.

22. For the aforesaid reasons, the appeal is allowed. The impugned order is set aside and the matter is remitted back to the District Consumer Disputes Redressal Forum, Sonepat, for decision in accordance with law laid down herein.