Consumer Commission grants relief to Doctor, Nurse after 16 years, slams District forum's 'obnoxious' order

The District Forum had allowed the complaint on the basis of the contention that the parents of the complainant were legal taxpayers. However, referring to such observations made by the District Consumer Court as "obnoxious", the State Commission set aside the order of the District Forum and noted, "The observations of the District Forum that since the citizens pay taxes to the Government and the Government is running the hospital, they are liable, is obnoxious."

It has further been clarified by the Commission that "in order to attract the jurisdiction, the sine qua non is payment of consideration. Where there is no consideration, the jurisdiction of the Consumer Protection Act will not be attracted."

The case goes back to 2005 when the original complainant of the case, a school-going girl of 15 years was taken to the Government Hospital Chennur, as she had got fever and cold. After examining the patient, the doctor had prescribed some medicines and an injection. Accordingly, one of the nurses of the hospital gave her the injection and following this, there was a swelling by the part where the injection was given.

Allegedly, when the swelling increased, the mother of the complainant brought that to the notice of the doctor, who assured that the swelling might have happened due to mosquito bite. Believing the doctor, the medicines were continued and as the condition became critical, the parents approached the Professional Protection and Welfare Scheme of Indian Medical Association, Hyderabad.

It was the complaint of the patient that even though the doctor assured then that the expenses for the further treatment would be borne by them, they failed to keep such promise and consequently, the parents of the patient had to take her to another hospital and they incurred lot of expenditure for further treatment.

Complaining of suffering- physically, mentally and financially due to the negligence and carelessness of the doctor and the nurse, the complainant approached the District Forum.

The doctor argued before the Forum that the complainant doesn't come under the ambit of definition of "Consumer" as defined under Section 2(d). As a Government doctor, he examines and prescribes number of patients on a daily basis and he is also not aware whether the complainant took any injection at any place, pointed out the doctor and denied any negligence or deficiency of service on his part.

On the other hand, the nurse, who gave the injection to the patient, submitted that she was working as Auxiliary Nurse and Midwife. She further claimed that she was in no way concerned with giving injections and the patients who come to hospital for treatment. Therefore, the allegations against this Opposite Party are made with only malafide intention to harass and extract money from them.

After hearing the contentions of both the sides, the District Forum allowed the complaint in part and directed the doctor and the nurse to pay Rs 1,98,000 and Rs 2,000 towards costs.

However, aggrieved by the order, the doctor and the nurse approached the State Consumer Court of Telangana and the matter was sent back to the District Forum and was disposed back in 2018.

When the matter came to the State Commission for consideration, the Commission noted that, "in order to attract the jurisdiction, the sine qua non is payment of consideration. Where there is no consideration, the jurisdiction of the Consumer Protection Act will not be attracted."

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Referring to the fact that in this particular case, the appellants are Government doctor and nurse working in a Government Hospital, the Commission further observed, "No consideration was paid by the first Respondent/Complainant for the treatment. There are catena of authorities which clearly say that, in the absence of there being any consideration, the Opposite Parties are not liable to pay any compensation under the provisions of Consumer Protection Act. This aspect was extensively discussed by the Commission in FA.No.1/2011 relying upon the judgment of Supreme Court in "Kishorilal Vs. E.S.I. Corporation" II (2007) CPJ 25 (SC), wherein it is clearly laid down and the said dictum is applied to the facts of the present case, the Appellants cannot be made liable for the compensation under the provisions of Consumne Protection Act."

"The remedy of the first Respondent/Complainant for the alleged negligence, if any, lies somewhere else but certainly not before the District Forum constituted under the provisions of Consumer Protection Act," further clarified the Commission.

Noting that contrary to the settled legal position, the District Forum had allowed the complaint and awarded compensation, the State Consumer Court further referred to some observations made by the District Forum which have averted to controversy. The forum had depended on the contention that the parents of the complainant were legitimate tax payers, in order ponder over the point whether the complainant is a consumer or not.

Referring to the observations made by the District Forum, that while considering the remand application the Forum cannot interfere with its previous order, the State Commission noted,

"The observations of the District Forum clearly show that absolutely there is no application of mind by the District Forum in adjudicating the controversy. The District Forum appears to be lacking the knowledge of fundamentals of law while it made the observations in para-8 which are re-produced supra. When the Appellate Court remands back the matter to the Trial Court for fresh adjudication, the Court subsequently deciding the case is required to take independent view of the matter but it cannot be said that since the earlier order was passed before the remand, the same cannot be interfered with, is wholly improper."

Finally, exonerating the doctor and the nurse, the Consumer Court noted,

"Adverting to the merits of the case, we have no hesitation in holding that the first Respondent/Complainant cannot entertain the grievance for the simple that, reason the first Respondent/Complainant was treated in the Government hospital, where no kind of fees was collected either from the Complainant or any other patient. The observations of the District Forum that since the citizens pay taxes to the Government and the Government is running the hospital, they are liable, is obnoxious."

Accordingly, the State Commission set aside the order of the District Forum.

To read the order, click on the link below.

https://medicaldialogues.in/pdf_upload/no-medical-negligence-non-payment-of-fees-164579.pdf

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