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UNION TERRITORY CONSUMER DISPUTES
REDRESSAL COMMISSION, CHANDIGARH
Hon’ble Mr. Justice K.K. Srivastava,.
President & Dr. P.K. Vasudeva, Member
MEENA DEVI & ANR.—Appellants
versus
UNION OF INDIA & ORS.—Respondents
Appeal No. 218 of 2000—Decided on 20.6.2001
Counsel for the Parties :
For the Appellants :Ms. Kanchan Sehgal, Advocate.
For the Respondent Nos. 1, 2 and 4: Mr. K.C. Sahu, Govt. Pleader.
For the Respondent No. 3:Mr. B.S. Bhatia, Advocate.
For the Respondent No. 5: Ex-parte.
Headnote:Consumer Protection Act, 1986 - Section 2(1)(d)(ii) and Section 2(1)(o) read with ESI Act, Section 75(3)-Consumer -Service-Complainant beneficiary of ESI Scheme-Underwent tubectomy operation in free medical camp organized by family planning department-Operation became unsuccessful as she gave birth to a child-Claim for compensation-Contribution under ESI scheme cannot be stretched too far to be held equivalent to payment of service for conducting tubectomy operation-Specific averment hiring service for tubectomy operation absent nor proved-Complainant not consumer-Operation was done free of cost-Case not covered by expression service-Further in view of Section 75(3) of ESI Act complaint before Consumer Forum would not lie-Complaint dismissed as not maintainable.
A careful perusal of the complaint as well as the evidence placed on record by the complainants which is in the shape of the affidavit of Shri Brijesh Parsad, it will be seen that the service of respondents was not hired specifically for the said operation of tubectomy. On the other hand, the evidence on record shows that the said operation was performed free of costs. Jurisdiction of the Fora constituted under CP Act, 1986 to entertain such type of complaint is barred under Section 75(3) of the ESI Act. The complainants appellants have failed to show that they were covered under the expression consumer as defined under Section 2(i)(d)(ii) of the CP Act and further that they hired service of respondents No. 1 to 4 for the operation of tubectomy, which was conducted on appellant No. 1 Smt. Meeena Devi against the payment of charges for hiring the service regarding the conduct of the operation and consequently the case is also not covered by the expression service as defined under Section 2(1)(o) of the CP Act. The District Forum II in our considered view, went wrong in repelling the preliminary objections taken by the respondents No. 1 to 4. Since, the complaint could not lie under the provisions of the CP Act and also because of the bar created under Section 75(3) of the ESI Act as held for the Honble National Commission in the case of Arun Kumar Gupta, the District Forum II could not have entered into the merits of the case of the complainants are and recorded finding without requisite jurisdiction under the provisions of the CP Act and therefore such finding shall not be operative. The complaint deserves to be dismissed as being not maintainable under the provisions of CP Act. The appellants/complainants will, however, be at liberty to initiated appropriate action regarding the redressal of their grievance before the Civil Court of competent jurisdiction.
Mr. Justice K.K. Srivastava, President—This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] against the order dated 3.10.2000 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hereinafter referred to as the District Forum-II] in Complaint Case No. 725 of 1996, Meena Devi & Anr. v. Union of India & Ors.
2. The facts leading to the filing of this appeal may briefly be narrated as under :
Shri Brijesh Prasad, husband of Smt. Meena Devi is the employee of respondent No. 5 - Groz Backet Asia Ltd., 133-134, Industrial Area, Phase I, Chandigarh and was contributing to the Employees State Insurance Scheme [for short hereinafter referred as the E.S.I. Scheme] for getting medical services. The E.S.I. Corporation made arrangements with the Chandigarh Administration - respondent No. 2 for the treatment of the contributors to the E.S.I. Scheme in the hospitals run by the Chandigarh Administration. It is alleged that Smt. Meena Devi underwent tubectomy operation on 31.3.1994 for family planning at Primary Health Centre, Manimajra. The operative surgeon was respondent No. 4 - Dr. S.K. Dhillon, Ex-Senior Medical Officer, Incharge Civil Hospital-cum-PHC, Manimajra, U.T., Chandigarh.
3. Smt. Meena Devi already had two children born to her from her husband Shri Brijesh Prasad and it was at that stage that she underwent tubectomy operation for limiting the size of the family. It is alleged that the said operation did not prove successful inasmuch as Smt. Meena Devi after the tubectomy operation, conceived from her husband Shri Brijesh Prasad and gave birth to a male child on 7.6.1994. The birth of the aforesaid male child caused mental and physical harassment and hardship to the complainants Smt. Meena Devi and her husband Shri Brijesh Prasad as the child was born unplanned. Consequently, the Complaint Case No. 785 of 1996 was filed by Smt. Meena Devi and her husband Shri Brijesh Prasad in the District Forum-II, U.T., Chandigarh and claimed a sum of Rs. 4 lacs as compensation on the ground that they had been put to unwanted expenses and for suffering mental and physical hardship.
4. The complaint case was contested by respondent Nos. 1 to 4. Respondent Nos. 1 and 2 filed one set of written statements while separate written statements were filed by respondent No. 3 - Director, ESIC, Sector 18, Chandigarh and respondent No. 4 - Dr. G.K. Dhillon aforesaid. The respondents took preliminary objection regarding the maintainability of the complaint under the provisions of C.P. Act on the ground that the complainants were not covered by the definition of the ‘consumer’ under Section 2(1)(d)(ii) of the C.P. Act and the respondents aforesaid did not render ‘service’ as defined under Section 2(1)(o) of the C.P. Act. On facts, it was denied that there was any negligence or deficiency in service on the part of the respondents and particularly respondent No. 4. It was urged that the Laparoscopic Tubaligation (L.T.) operation is not hundred percent success and there were chances of its failure and this aspect of the operation was fully explained to the complainants/appellants. They also took the plea that the unwanted pregnancy could be got terminated under the provisions of Medical Termination of Pregnancy but the appellant No. 1 - Smt. Meena Devi did not choose to do so. The respondent No. 3 in particular took the plea that the jurisdiction of the District Forum-II was barred under Section 75(3) of the Employees State Insurance Act. It was, however, not denied that the complainant Shri Brijesh Prasad was covered under the E.S.I. Scheme having contributed for the medical treatment there-under. It was also not disputed that the E.S.I. Corporation had entered into arrangements with the U.T. Administration by making certain payment of availing of the facility at the hospital/dispensary run by the State Government/U.T. Administration.
5. The District
