UNION OF INDIA & ANR. versus N. R. SRIVASTA & ORS. on 23 July 2020

1. Leave granted.

2. The appeal arises from an order of the National ConsumerDisputes Redressal Commission[1] dated 7 October 2016. The Union ofIndia, through the Secretary in the Ministry of Health and Family Welfare,Fand Safdarjung Hospital have challenged the order of the NCDRC. Thefirst respondent was the original complainant in a consumer complaint[2]instituted before Consumer Disputes Redressal Forum – II[3], New Delhi.The complaint alleged medical negligence against Sarvodaya Hospitaland Safdarjung Hospital. The NCDRC allowed the revision of SarvodayaHospital. While exonerating it of the finding of medical negligence, itGheld Safdarjung Hospital liable to pay the compensation of Rs 2 lakhsimposed by the State Consumer Disputes Redressal Commission[4].

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2 Case No. 55/2005

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3. The spouse of the complainant who was pregnant, was admittedto Sarvodaya Hospital in a medical emergency at about 5 am on 9 March2004. She delivered a baby at about 8 am, a few hours after admission.The baby was delivered prematurely and, according to the complainant,required medical care in a Nursery ICU. The complainant and his spousewere referred to Safdarjung Hospital for admission of the child foremergency medical care. The grievance against Sarvodaya hospital wasthat prior to the delivery, it had been represented that the Hospital wasfully equipped with a Nursery ICU and that when the complainant cameto realise that this was not the case, he felt cheated. The complainantproceeded to Safdarjung Hospital with his spouse and child between 12and 1 pm on 9 March 2004. The grievance of the complainant was thatat Safdarjung Hospital, the baby was not placed in a Nursery ICU, butwas initially admitted to the General Ward and thereafter to a GeneralICU. The child died in the last week of April 2004. A complaint waspresented before the District Forum seeking damages against SarvodayaHospital and Safdarjung Hospital.

4. The District Forum dismissed the consumer complaint. Asregards, Sarvodaya Hospital, it arrived at the finding that there was nomisrepresentation of fact and that the Hospital had an independent facilityof a Nursery and ICU available. The District Forum held that the spouseof the complainant was operated upon in an emergency to save the livesof the mother and the child. Hence, there was no deficiency on the partof Sarvodaya Hospital in referring the complainant to a specialized facility.As regards Safdarjung Hospital, the complaint was held not to bemaintainable on the ground that treatment had been afforded free ofcost to the patient. Relying on the decision of this Court in IndianMedical Association v V P Shantha[5], the complaint was held not to bemaintainable.

5. An appeal[6] was filed before the State Consumer DisputesRedressal Commission by the original complainant. The SCDRC, by itsjudgment dated 10 December 2013, came to the conclusion thatSarvodaya Hospital was guilty of medical negligence and directed it topay a sum of Rs 2,00,000 as compensation and costs quantified atRs 20,000. However, the complaint was held not to be maintainableagainst Safdarjung Hospital. The SCDRC relied upon an affidavit of Dr 5(1995) 6 SCC 651

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AK C Aggarwal who deposed in support of the plea that the treatmenthad been provided free of cost without charging any fees. Finding thatthere was no denial of this assertion and relying on the decision of thisCourt in Indian Medical Association, the complaint was rejected asagainst SafdarjungHospital. However, the SCDRC had also foundnegligence on the part of Safdarjung Hospital.B

6. A revision[7] was filed against the judgment of the SCDRC bySarvodaya Hospital before the NCDRC. The NCDRC, by its judgmentdated 7 October 2016, allowed the revision and came to the conclusionthat Sarvodaya Hospital was not guilty of medical negligence. The findingof fact was that the spouse of the complainant had been admitted to theChospital in a precarious condition and was a high risk patient. Relying onthe progress notes of the hospital, the NCDRC noted that the hospitalhad referred the patient to a specialized facility after taking the consentof the complainant. The finding was to the following effect:

“19. A brief perusal of the prescription shows that the patient wasDadmitted in the First Opposite party Hospital in a precariouscondition of umbilical cord collapsing through the vagina; a grossrisk of survival of the baby inside the womb; the risk of the bloodsupply being cut off and high chances of the baby being bornasphyxiated. The progress notes show that all due care and cautionEwas taken which was required under the standard practice ofnormal medical parlance by the First Opposite party Hospital indelivering the baby through Caesarian Section and hence, nodeficiency can be attributed to the first Opposite Party Hospitalor its Doctors, as there is no documentary evidence suggestingany kind of negligence in the line of treatment rendered to theFpatient. The baby was rightly referred to a higher managementHospital, in the absence of the necessary nursery facilities requiredto handle a premature baby. We hold accordingly.”

7. However, having allowed the revision that was filed bySarvodaya Hospital against the finding of negligence, the NCDRCGelaborated on the question as to whether Safdarjung Hospital had beencorrectly exonerated. Safdarjung Hospital was a party to the proceedingsbefore the NCDRC and was heard in the revision that was filed bySarvodaya Hospital. The NCDRC noted that though Safdarjung Hospitalwas exonerated by the District Forum and the SCDRC on the ground H7Revision Petition No 1299 of 2014

that the treatment had been rendered free of charge and the hospitalwas not amenable to the jurisdiction of the consumer fora under theConsumer Protection Act 1986[8], the SCDRC had, on merits, come tothe conclusion that though it had the facility of a Nursery with a ventilator,it had not been made available to the child of the complainant. The babywas admitted to Ward No 20, then to Ward No 18 and eventually in theGeneral ICU. This finding had attained finality. The NCDRC held thatthe finding of the SCDRC that Safdarjung Hospital was not amenable tothe jurisdiction of the consumer fora was contrary to the decision of thisCourt in Indian Medical Association. The NCDRC held that thoughthe complainant hadnot filed a revision against the order of the SCDRCspecifically holding that Safdarjung Hospital was not amenable to thejurisdiction of the consumer fora, he was not precluded from challenginga finding which was adverse to him in the revision petition. On thesefacts, the NCDRC sustained the finding of medical negligence againstSafdarjung Hospital and directed it to pay compensation quantified at Rs2 lakhs.

8. Mr R S Suri, Additional Solicitor General, has appeared in supportof the appeal filed by the Safdarjung Hospital. The submission is that nocharges across the board are levied at Safdarjung Hospital and, hence,the finding that was arrived at by the NCDRC is unsustainable. MrDinesh Kumar, learned counsel has appeared on behalf of the originalcomplainant and opposed the appeal. Sarvodaya Hospital has beenrepresented by Mr Shantanu Sagar, learned counsel.

9. While evaluating the submission which has been urged by MrR S Suri, it is necessary, at the outset, to have regard to the principleswhich have been laid down in the judgment of this Court in IndianMedical Association. In the judgment of this Court, the provisions ofSection 2(1) 6 (o) of the Act fell for interpretation. Section 2(1)(o)provides as follows:

“”service” means service of any description which is madeavailable to the potential users and includes the provision offacilities in connection with banking, financing, insurance, transport,processing, supply of electrical or other energy, board or lodgingor both, [housing construction], entertainment, amusement or thepurveying of news or other information, but does not includerendering of any service free of charge or under a contract ofpersonal service;”

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A10. Interpreting the above provision, a three judge Bench of thisCourt held that it is only where a hospital provides medical services freeof charge across the board to all patients that it would stand outside thepurview of the Act. The Court held that a hospital which renders freeservices to a certain category of patients, while providing for serviceswhich are charged to the bulk of others would not lie outside the purviewBof the jurisdiction of the consumer fora. This principle is evident fromthe following extract from the decision of this Court:

“43...The third category of doctors and hospitals do provide freeservice to some of the patients belonging to the poor class but thebulk of the service is rendered to the patients on payment basis.CThe expenses incurred for providing free service are met out ofthe income from the service rendered to the paying patients. Theservice rendered by such doctors and hospitals to paying patientsundoubtedly fall within the ambit of Section 2(1) (o) of the Act.”

11. From the record, we find that, in the present case, the onlyDfactual foundation that was led before the District Forum was theevidence of Dr K C Aggarwal who deposed that the patient in questionhad been treated free of charge. We have scrutinized the grounds ofappeal in the Special Leave Petition. Not even a single ground has beenraised by Safdarjung Hospital, challenging the factual basis of the findingEthat has been arrived at by the NCDRC on the issue of jurisdiction. Norhas any other factual material been placed on the record to enable theCourt to decide on whether it satisfies the tests enunciated in IndianMedical Association. Hence, in the absence of a proper challengebefore the District Forum, the SCDRC or the NCDRC and, as we haveseen above, even before this Court, it would be inappropriate for thisFCourt to render a conclusive opinion. We ought not to do so in the absenceof a factual foundation in the pleadings and evidence. We are also mindfulof the fact that the award in the present case is in a relatively smallamount of Rs 2 lakhs.

12. However, Mr R S Suri submitted that it would be appropriateGfor this Court, having regard to the recurring nature of the issue, to leavethe question of jurisdiction open to be decided in an appropriate casewhere a factual foundation can be laid by the Union of India andSafdarjung Hospital, both in the pleadings and evidence. We considerthis to be appropriate so as to ensure that while we are affirming theHjudgment of the NCDRC in the present case on the ground that the quantum of the claim is small enough to not warrant the intervention ofthis Court, the decision of this Court (or of the NCDRC) is not regardedas a precedent for having decided a question of law in the generality ofcases that may arise involving Safdarjung Hospital. We therefore confinethe judgment of the NCDRC to the peculiar factual background, as wehave noted in the present case. We clarify that we have left open theissue as to whether Safdarjung Hospital would be governed by theprovisions of the Act, more particularly, having regard to the provisionsof Section 2(1)(o), to be decided in an appropriate case. The impugnedjudgment of the NCDRC shall not be cited as a precedent. The issue,including any other issues which may arise is left open to be adjudicatedupon in an appropriate case.

13. Another aspect which requires mention is that the SCDRChad held that Safdarjung Hospital was not amenable to the jurisdictioncreated by the Act. This was not challenged by the complainant.Sarvodaya Hospital challenged the order of the SCDRC. The NCDRCreversed the finding on maintainability which was in favour of SafdarjungHospital in a revision by Sarvodaya Hospital. It attempted to do “completejustice”, ignoring that it is not entrusted with the jurisdiction which isexclusively conferred on this Court under Article 142. In an appropriatecase, it will have to be decided whether the NCDRC can at all exercisein revisional proceedings the powers which have been conferred on anappellate court under Order XLI Rule 33 of the Code of Civil Procedure1908. This issue is also specifically kept open.

14. Subject to the aforesaid clarification, in the peculiar facts,which we have noted above, we are not inclined to entertain the appealonly on the ground of the smallness of the quantum involved. The appealis accordingly dismissed but with the above clarifications. The paymentof Rs 2 lakhs in compliance of the order of the NCDRC shall be made tothe original complainant within a period of two months from the date ofreceipt of a certified copy of this order. Time to pay the amount of Rs 2lakhs is accordingly extended.

15. Pending application, if any, stands disposed of.

Appeal dismissed.

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