Mr. Justice S.S. Dewan, President — This complaint is under Section 17 read with Section 12 of the Consumer Protection Act, 1986 (for short ‘the Act’).

2. The facts merit notice in their utmost brevity. The case of the complainants is that Ram Dulari, deceased was the wife of Pavitar Singh arid she gave birth to two sons and two daughters. It is alleged that on the advice of respondent 2 Dr. Dharam Pal, Pavitar Singh, complainant agreed to get his wife Ram Dulari operated upon for tubectomy on 8.1.1993 in the Civil Hospital, Samrala; that respondent-2 did not take necessary precautions which he should have as a medical man and as such the operation was not successful; that Ram Dulari was discharged from the Hospital immediately after the operation whereas she should have been kept in the Hospital for her post operation care and that as she developed post operation complications she was brought to Civil Hospital, Samrala and the respondent No. 2 referred her to Civil Hospital, Ludhiana for better treatment. It is alleged that Ram Dulari died in Civil Hospital, Ludhiana on 13.1.1993 because of post operation complications caused by inefficient service and negligence of respondent No. 2. A sum of Rs. 3 lacs was claimed as compensation.

3. On notice being issued, the respondent No. 2 apart from denying any negligence whatsoever, firmly took-up the preliminary plea that the complainants did not come within the ambit of the ‘consumer’ because the treatment given was free of charge. On merits, the other allegations of the complainant were stoutly controverted. It was alleged that the operation was properly performed and all care and post operation precautions were advised to be observed on record and use of medicines was also prescribed and that after operation Ram Dulari, deceased was kept in the Hospital and the Nursing and other medical staff were looking after her; that against all norms, Ram Dulari left the Hospital without information to the staff and without any order of discharge from the medical officer or the answering respondent. It was emphatically submitted that so long Ram Dulari remained in the Hospital there was no complication at the time of the operation or post operation. The allegations of negligence and deficiency in service were emphatically denied.

4. In support of their case, the complainants submitted two documents Annexure C-1and C-2 whereas the respondent No. 2 filed an affidavit in support of his case. No oral evidence was let in on either side.

5. Mr. Surinder Khanna, Advocate for the respondent has raised a preliminary objection that the complainants are consumers under the Act and the complaint is not maintainable. We have heard the learned Counsel for the parties and considered the record with requisite care. It is not disputed that Ram Dulari was admitted in the Civil Hospital, Samrala and she was operated upon for tubectomy by Dr. Dharam Pal (respondent No. 2) on 8.1.1993. The complainants have nowhere stated in the complaint that they had paid any charges to respondent No. 2 or to any other doctor of the said hospital. Therefore, it follows that the services rendered by Dr. Dharam Pal was free of charge. If that is so, it will not be ‘service’ within the meaning of Section 2(1)(o) of the Act. Hence the complainants cannot be said to have hired the services of respondent No. 2 for consideration. So they will not be ‘consumers’ within the meaning of Section 2(1)(d) of the Act.

6. During the course of arguments, the learned Counsel for the complainant has urged that the health services are rendered out of the taxes paid by the people and doctors are paid out of the exchequer for rendering efficient service to the patients. This argument of the learned Counsel misses the most essential feature of the concept of ‘hire’. The consideration for ‘hire’, be it called fee or charge, is that it is a voluntary payment, it is open to a person to make the payment and hire the services or refuse to pay and forego t