Point of Law: Right to an appellate remedy becomes vested when the lis is initiated. The remedy which was available prior to the amendment would continue to be available despite the amendment. Therefore, it is for the appellant to invoke the revisional jurisdiction of the National Commission under section 21 (b) of the Consumer Protection Act, 1986.

JUDGMENT :

MURALI PURUSHOTHAMAN, J.

1. The appellant, Regional Cancer Center (RCC), Thiruvananthapuram, a State owned Society running a cancer care hospital and research center states that they have formulated a series of cancer care schemes to provide cancer treatment free of cost to all who join the scheme. The 3rd respondent joined in one such scheme namely ‘Cancer Care for Life’ (CCL) along with three of his family members in the year 1994 by paying a membership fee of Rs. 1,700/-. Being diagnosed with cancer, the 3rd respondent reported to the appellant on 03.02.2006 with a referral letter from a hospital at Kottayam and availed treatment under the CCL. Appellant states that, at the RCC, Chemotherapy treatment was provided to the 3rd respondent, free of charge. However, the 3rd respondent had to be subjected to a specialized ‘Targeted Therapy’ in addition to regular Chemotherapy treatment and he paid an amount of Rs. 4,40,466/- to the appellant being the cost of the medicine ‘Mabthera’ for ‘Targeted Therapy’ and pay ward charges.

2. Alleging deficiency in service on the part of the appellant, the 3rd respondent filed Ext.P4 complaint before the 2nd respondent District Consumer Disputes Redressal Forum, Thiruvananthapuram (CDRF), for directing the RCC to refund the amount of Rs. 4,40,466/- collected from the 3rd respondent and for compensation. The 3rd respondent contended that he is a consumer and the appellant was bound to provide free treatment under the CCL.

3. Before the CDRF, the appellant contested the claim on merits and contended that the ‘Targeted Therapy’ is not covered under the CCL and the 3rd respondent is not entitled for the reimbursement of the cost of the medicine ‘Mabthera’ and pay ward charges and the appellant has not committed any deficiency in service.

4. The CDRF, by Ext.P8 order dated 30.07.2015, found deficiency of service on the part of the appellant and directed the appellant to reimburse a sum of Rs. 4,40,466/- being the cost of drugs for Targeted Therapy. However, the claim for compensation was not awarded.

5. Aggrieved by Ext.P8 order of the CDRF, the appellant preferred Ext.P9 appeal before the 1st respondent Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (State Commission), invoking Section 15 of the Consumer Protection Act, 1986. The State Commission dismissed the appeal filed by the appellant as per Ext.P10 judgment dated 09.10.2019. The 3rd respondent filed application for enforcement of the above orders and the CDRF has issued Ext. P11 notice to show cause thereon.

6. Challenging Ext.P8 order of the CDRF, Ext.P10 order of the State Commission and Ext.P11 notice of the CDRF in the Execution Petition, the appellant filed W.P. (C) No. 1998/2020, invoking the jurisdiction of this Court under Article 226 of the Constitution of India. In the writ petition, it is contended by the petitioner/appellant that the 3rd respondent is the beneficiary of a gratuitous and free service offered by the appellant under the CCL and he is not a consumer within the purview of the Consumer Protection Act, 1986 and therefore, the CDRF has no jurisdiction to entertain Ext.P4 complaint for the alleged deficiency of service.

7. The learned Single Judge dismissed the writ petition holding that the appellant has an effective alternative remedy against Ext.P10 judgment passed by the State Commission under Section 19 of the Consumer Protection Act, 1986. The contention of the appellant that since the CDRF has no jurisdiction to entertain Ext. P4 complaint, this Court, in exercise of powers under Article 226 of the Constitution can interfere in the matter, was rejected by the learned Single Judge by observing that the appellant did not raise the issue of maintainability of Ext.P4 complaint before the CDRF and that the appellant itself filed Ext.P9 appeal before the State Commission invoking the provisions of the Consumer Protection Act, 1986 and suffered an adverse order. It is against the judgment of t