'Supreme Releif' - Even if a Doctor is getting salary, Doctor's Free of charge services in the government hospitals shall not attract the provisions of Consumer Protection Act. Adv. ROHiT ERANDE ©

Hon. Supreme Court - Even if a Doctor is getting salary, Doctor's Free of charge services in the government hospitals shall not  attract  the provisions of Consumer Protection Act.

Adv. ROHiT ERANDE ©

Case Details : 

Before : NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI, REVISION PETITION NO. 3439 OF 2018

 (Against the Order dated 21/07/2017 in Appeal No. 906/2012 of the State Commission Delhi)

Before : Hon'ble Dr. S.M. KANTIKAR

NAME OF THE PARTIES : CONCERNED NURSE, LBS HOSPITAL V/s. LALAN PRASAD SHARMA & ANR.

JUDGMENT LINK :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F3439%2F2018&dtofhearing=2023-03-03

Pronounced on: 3rd March, 2023

Facts in short :

1.  The District Forum partly allowed the Complaint and held OP-1 -CMO and OP -3 -the Nurse liable and directed the OP-1 and 3 to pay Rs.5,00,000/-.  The CMO of LBS Hospital (OP-1) was given liberty to recover the said amount from the salaries of the doctor and the nurse, who were responsible for the paralysis of the Complainant’s hand. 

2. Being aggrieved by the Order of the District Forum, the Appeal No.FA/906/2012 filed by the CMO and the concerned nurse before the State Commission.  Same was  dismissed. Being aggrieved by the Order of State Commission the OP Nos.  1 & 3 filed the instant two separate Revision Petitions.

3. The Hon. NCDRC framed two issues i.e.

(i) Whether Orders passed by the District Forum and the State Commission amount to nullity in the instant case’ and

(ii)     ‘Whether the Complainant was a Consumer under Section 2(1)(o) of the Act, 1986’ ?

The Court observed that  both the Lower fora have not adjudicated these issues. 

4. While deciding the 2nd  most important issue,   the Commission observed that   it is an admitted fact that in the instant case the doctors and the concerned nurse were working in the government hospital-LBS hospital as employees, continued to be services rendered free of charge and therefore,  they would be outside the purview of Section 2(1)(o) of the Act, 1986.  The commission relied on  the recent judgment of  Nivedita Singh vs. Dr. Asha Bharti & Ors.[ Civil Appeal No. 103 of 2021 – DOJ 7/12/2021] in which the Hon’ble Supreme Court clarified about the doctors’ services in the government hospitals shall not  attract  the provisions of Act,1986. The Hon’ble Supreme Court while deciding Nivedita Singh’s case made a reference to Indian Medical Association Vs. V.P. Shantha & Ors.[ (1995) 6 SCC 651] and recorded following findings:

“45. In respect of the hospitals/nursing homes (government and non-government) falling in category (i), i.e., where services are rendered free of charge to everybody availing of the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) of the Act insofar as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of Section 2(1) 3 (o), being free of charge, the same service cannot be treated as service under Section 2(1)(o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered. The salary that is paid by the hospital administration to the employee medical officer cannot be regarded as payment made on behalf of the person availing of the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1)(d) in respect of the service rendered to him. The service rendered by the employee-medical officer to such a person would, therefore, continue to be service rendered free of charge and would be outside the purview of Section 2(1)(o).”

5. The commission observed that the District Forum and the State Commission have not discussed the preliminary issue of maintainability/jurisdiction which was the root cause in the instant matter while passing the award and therefore it becomes the   irregularity and jurisdictional error wherein ignored the legal principles while holding the Opponents liable under the Act, 1986 and therefore allowed both the Revisions. 

This judgment has great importance. It reiterates the view that merely a CMO /Nurse gets a salary from the hospital administration in a Govt. Set up, cannot be regarded as payment made on behalf of the consumer availing of the service.   The V.P. Shanta's case (supra) in which these findings were made,  is being criticised by the medicos as this case said to have paved the way for compensation cases against Doctors. Now, recently the Hon'ble S.C. has clarified that CPA is applicable to Doctors, so now the issue of  whether CPA is applicable to Doctors or not has been finally set to rest.

Thanks and Regards

Adv. ROHiT ERANDE ©