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HIMACHAL PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION
P.S. Rana and Vijay Pal Khachi, Members
SUBHASH CHAND - Appellant
Versus
PRINCIPAL SECRETARY (HEALTH) TO GOVERNMENT OF HIMACHAL PRADESH - Respondent
First Appeal No. 164 of 2017
Decided on : 17-05-2018
Rakesh Thakur, Adv., Anu Fishta, Adv., Pawan Gautam, Adv., Veena Sharma, Adv.
Liability of government hospitals and doctors under the Consumer Protection Act 1986 and the definition of service under the Act.
Headnote:
Consumer Protection Act 1986 - Medical Negligence - 12, 15 - The court discussed the provisions of the Consumer Protection Act 1986, specifically focusing on the definition of service and the liability of government hospitals and doctors under the Act. The court also referred to relevant case laws to support its decision.
Fact of the Case:
The minor complainant sought compensation for medical negligence after sustaining severe pain and becoming permanently handicapped due to the administration of an incorrect dosage of medication at a government hospital.
Finding of the Court:
The court found that the consumer complaint against the government hospital and doctors was not maintainable under the Consumer Protection Act 1986. However, it held the medical shop liable for delivering the incorrect dosage and ordered compensation and litigation costs to be paid to the complainant.
Issues: Liability of government hospitals and doctors under the Consumer Protection Act 1986, medical negligence, maintainability of the consumer complaint.
Ratio Decidendi: The court relied on the definition of service under the Consumer Protection Act 1986 and relevant case laws to determine the liability of the parties involved.
Final Decision: The appeal was partly allowed, dismissing the complaint against the government hospital and doctors, and ordering compensation and litigation costs to be paid by the medical shop to the complainant.
ORDER
P.S. Rana, President. - Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 20.04.2017 passed by Learned District Forum in consumer complaint No.45/2011 title Master Subhash Chand Versus The Principal Secretary (Health) & Ors.
Brief facts of Consumer Complaint:
2. Complainant Master Subhash Chand aged eleven years through his father and natural guardian Shri Sukh Ram filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite parties pleaded therein that on dated 21.08.2009 complainant visited Govt. Regional Hospital Bilaspur District Bilaspur H.P. for treatment of pain in the left thumb of his feet. It is pleaded that opposite party No.3 namely Dr. Arvind Tondon attended the complainant and after checking the complainant prescribed Gentamycine injection of 40mg which was to be given thrice a day. It is pleaded that thereafter complainant went to opposite party No.5 for the purchase of medicine and opposite party No.5 delivered Gentamycine injection of 80mg contrary to prescription slip issued by Medical Officer. It is further pleaded that opposite No.4 administered the injection to the minor complainant. It is further pleaded that after administering the injection minor complainant sustained giddiness and severe pain in his left leg and matter was immediately reported to opposite parties No.3 and 4. It is further pleaded that thereafter complainant was admitted in the hospital and thereafter complainant was referred to IGMC Hospital Shimla. It is further pleaded that complainant was informed that problem in the left leg occurred to the minor due to administration of heavy dosage of injection in the nerve of minor complainant. It is pleaded that age of minor was 11 years and future prospects of minor diminished and minor became permanently handicapped. Complainant sought compensation to the tune of Rs. 500000/- (Five lac). In addition complainant sought relief of Rs. 5100/- (Five thousand one hundred) as litigation charges. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that consumer complaint against Medical Officer posted in Government Hospital is not maintainable. It is pleaded that pain sustained by complainant is not attributable due to heavy dosage of Gentamycine injection. It is further pleaded that injection was given to the minor strictly in conformity with the age, weight and condition of the complainant. It is further pleaded that heavy dosage was not prescribed. It is further pleaded that complainant be relegated to civil court. It is further pleaded that complainant has no cause of action to file the consumer complaint and complainant is estopped to file the consumer complaint on account of his own acts, deeds and conduct. It is further pleaded that proper dosage of injection was given to the minor complainant. It is further pleaded that as per medical jurisprudence maximum dosage of Gentamycine which could be administered to 10 years minor is 234 mg per day. It is further pleaded that only 120 mg in a day was given to the minor. It is further pleaded that no negligence was committed by opposite parties No. 1 and 2. It is further pleaded that no consideration amount was received from the complainant and free service was given to the complainant. It is further pleaded that complainant did not fall within the definition of consumer. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite party No.3 pleaded therein that service of Govt. Medical Officer did not fall within the domain of Consumer Protection Act 1986. It is pleaded that charges of medical negligence are denied. It is further pleaded that complainant be relegated to civil court. It is further pleaded that 234 mg dosage was permissible to the minor aged ten years and it is further pleaded that only 120mg was administered. It is further pleaded
