TaxTMI 
TaxTMI 
2007 (5) TMI 567
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....tion 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 b....
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....rds the issues involved for consideration? 5. It is contended by Shri Dayan Krishnan, the learned counsel for the appellant, that in the case of Indian Medical Association (supra) although it was held that the free medical service was not covered under the CP Act, the very same judgment in conclusion No. (11) in para 55 includes any medical service given under the scheme of insurance within the scope of the CP Act and, therefore, the claim made by the appellant squarely falls within the jurisdiction of the consumer forum, the appellant being a consumer and the respondent's dispensary having rendered a service to him for consideration. 6. At this stage, it would be appropriate to refer to certain statutory provisions of the Consumer Protection Act, 1986. `Consumer' is defined in clause (d) and `service' in clause (o) of Section 2(1) of the CP Act as under: "2. Definitions.- (1) In this Act, unless the context otherwise requires, - xxx xxx xxx (d) "consumer" means any person who, - (i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other ....
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....who pays money as the price or cost of goods and services. However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded, but the services hired for consideration even for commercial purposes are not excluded. The term `service' unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein. However, a service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of `service' for the purposes of the CP Act. 8. A 3-Judge Bench of this Court in Indian Medical Association (supra) has extensively considered the provisions of the CP Act and particularly what shall be a `service' within the meaning of Section 2(1)(o) of the said Act. The Court was considering whether the service rendered by the doctors would fall within the purview of the CP Act, it being a service rendered for the charges; and whether the patients, who are treated by the doctors, are `consumers' as defined in Section 2(1)(d) of the CP Act. The Court said that the de....
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....ired to be paid by everybody availing the service would fall within the purview of the expression `service' as defined in Section 2(1)(o) of the Act. The Court held that the relationship between a medical practitioner and a patient carries within it a certain degree of mutual confidence and trust and, therefore, the service rendered by the medical practitioners can be regarded as a service of personal nature, but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service and it is a contract for service and the service rendered by the medical practitioner to his patient under such contract is not covered by the exclusionary part of the definition of `service' contained in Section 2(1)(o) of the CP Act. In paragraph 55 of the judgment, the Court summarized its conclusions. 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 servic....
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....rge whatsoever is made from any person availing of the services and all patients are given free service (vide para 55(9)) on the hand and service rendered to an employee and his family members by a medical practitioner or a hospital/nursing home which are given as part of the conditions of service to the employee and where the employer bears expenses of the medical treatment of the employee and his family members, (paragraph 55(12) on the other. In the first two circumstances, it would not be free service within the definition of the Sec. 2(1)(o) of the Act. In the third circumstance it would be. 7. Since it is not in dispute that the medical treatment in the said Hospital is given to employees like the appellant and his family members is part of the conditions of service of the appellant and that the Hospital is run and subsidised by the appellants employer, namely, the Union of India, the appellant's case would fall within the parameters laid down in paragraph 55(12) of the judgment in V.P. Shantha's case and not within the parameters of either para 55(6) or para 55(9) of the said case." 10. Further, the appellant has brought to our notice a judgment of this Court in the ca....
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....cheme. Section 39 speaks of the contribution which is required to be paid to the Corporation for the insurance scheme which shall comprise the contribution payable by the employer and the contribution payable by the employee. The contribution is required to be paid at such rates as may be prescribed by the Central Government. By virtue of Section 40, the principal employer is liable to pay the contributions, both the employer's contribution and the employee's contribution, in the first instance of the employees directly employed by him or by or through an immediate employer. Sub-section (2) of Section 40 authorises the principal employer to recover the contribution made for the employee by deducting the same from the wages of the employee. Chapter V of the ESI Act deals with benefits. Sub-section (1) of Section 46 falling within this Chapter contemplates that the insured persons, their dependents and the persons mentioned under the Section shall be entitled to the various benefits referred to in clauses (a) to (f). Clause (e) reads: "medical treatment for an attendance on insured persons (hereinafter referred to as medical benefit)". Section 56 is a specific Section which has refer....
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....e 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. 16. Relevant portions of Sections 74 and 75 of the ESI Act are reproduced below: "74. Constitution of Employees' Insurance Court.- (1) The State Government shall, by notification in the Official Gazette, constitute an Employees' Insurance Court of such local area as may be specified in the notification. xxx xxx xxx" "75. Matters to be decided by Employees' Insurance Court.- (1) If any question or dispute arises as to (a) whether any person is an employee within the meaning of this Act or whether he is liable to pay the employee's contribution, or (b) the rate of wages or average daily wages of an employee for the purpose of this Act, or (c) the rate of contributi....
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.... Act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043, the Court speaking on the jurisdiction of the consumer fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend of the decisions of this Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum wou....
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.... 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 former's conduct within the scope of the duty; (2) breach of the said duty; and (3) c....