A person who avails himself of the facility of medical treatment in a government hospital is not a consumer within the meaning of the Consumer Protection Act, and the facility offered in the government hospitals cannot be regarded as service hired for consideration.

R.N. Mittal, President—Briefly the facts of the case are that complainant No. 1 is the wife of complainant No. 2, Sh. Babu Ram. Complainant No. 2 got himself operated for sterilization on 22.1.86 in the Employees State Insurance Hospital (ESI Hospital) situated at Basai Darapur, Delhi which is being run by the Delhi Administration. The operation was performed by Dr. V. Bhandari, defendant No. 3 and the certificate was issued regarding it by Medical Supdt. of the Hospital, defendant No. 2. After one week the stitches were removed by the doctor. It is alleged that they were assured that the operation was successful.

2. On 1st December, 1988 complainant No. 1 was not feeling well. Complainant No. 2 took her to Guru Teg Bahadur Hospital, situated at Shahdara. The doctor who examined her informed both the complainants that she i.e. complainant No. 1, was pregnant at that time and carrying a four months pregnancy. Thereafter, complainant No. 2 got himself medically examined to find out whether his sterilization operation was intact or not. It was found that his sterilization operation was not successful. It is alleged that the operation was not successfully performed due to the negligence of defendant No. 3. Complainant No. l again visited the ESI Hospital on 20th December, 1988 and she was informed by the doctor that the vasectomy operation of complainant No. 2 had failed. The complainants consequently filed a complaint for recovery of Rs. 5,00,000/- against the defendants

3. The complaint has been contested by the respondents who controverted the allegations in the complaint. They further pleaded that the State Commission under the Act had no jurisdiction to try the complaint as the complainant No. 1 was not a consumer within the definition of the word as defined in Section 2(i)(d) of the Consumer Protection Act. It Is further pleaded that the Consumer Protection Act came into force in 1987, whereas the operation was performed in January 1986. The Act is not retrospective in application and consequently the complaint can not be maintained under it.

4. The first question that arises for determination is whether the complaint is maintainable by the complainants under the Consumer Protection Act before the State Commission. The hospital in question is an Employees State Insurance Hospital and is being run by the State Insurance Corporation constituted under the Employees State Insurance Act, Normally such hospitals are meant for Industrial workers. However, the Govt. of India in view of enormous growth of population realised that its control was necessary in order to improve economic conditions of the masses. Therefore, various hospitals were designated to perform family planning activities as per All India Post Partum Programmes of Hospitals (to be referred as AIPPH). A note has been placed by the respondents on the record, wherein it has been stated that the Director (Health Services), Delhi Administration vide his letter No. F60(19)-81/DFW/ACCTTS/1049/63 dated 6th February, 1982 recognised the ESI Hospital Basai Darapur, New Delhi as type ‘B’ PP Unit to provide family welfare services not only to the beneficiaries but to the general public also. It is further stated therein that the said services were provided free of cost and incentive money was provided to those who took benefit of the service from the said hospital. With this note a photostat copy of Chapter I of All India Hospital Post Partum Programme, 1986-87 has been produced. The relevant portions of the said programme are as follows:—

1. Historical Background

For decades there have been numerous but isolated efforts to bring the message of Family Welfare to the attention of recently delivered women in hospitals. After prolonged experimentation, the social scientists have come to consensus that in the field of population control. Post Partum period (post delivery) is the point of highest motivation for family planning and hence the most opportune time for the efficient