Supreme Court: Hospital which is giving free medical treatment to some patients and charging others for providing services are liable under consumer protection Act

While evaluating the submission which has been urged by Mr R S

Suri, it is necessary, at the outset, to have regard to the principles which

have been laid down in the judgment of this Court in Indian Medical

Association. In the judgment of this Court, the provisions of Section 2(1)

(o) of the Act fell for interpretation. Section 2(1)(o) provides as follows:

“"service" means service of any description which is

made available to the potential users and includes

the provision of facilities in connection with banking,

financing, insurance, transport, processing, supply

of electrical or other energy, board or lodging or

both, [housing construction], entertainment,

amusement or the purveying of news or other

information, but does not include rendering of any

service free of charge or under a contract of

personal service;"

10 Interpreting the above provision, a three judge Bench of this Court

held that it is only where a hospital provides medical services free of

charge across the board to all patients that it would stand outside the

purview of the Act. The Court held that a hospital which renders free

services to a certain category of patients, while providing for services

which are charged to the bulk of others would not lie outside the purview of

the jurisdiction of the consumer fora. This principle is evident from the

following extract from the decision of this Court:

“43...The third category of doctors and hospitals do provide

free service to some of the patients belonging to the poor

class but the bulk of the service is rendered to the patients on

payment basis. The expenses incurred for providing free

service are met out of the income from the service rendered

to the paying patients. The service rendered by such doctors

and hospitals to paying patients undoubtedly fall within the

ambit of Section 2(1) (o) of the Act.”

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No 2823 of 2020

Union of India Vs  N K Srivasta 

Dr Dhananjaya Y Chandrachud, J

Dated:July 23, 2020

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Consumer Protection (E-Commerce) Rules, 2020 comes into force

https://drive.google.com/file/d/1p1bVYbDc7hK0nyFEXipN0Rppr2zYD0uC/view?usp=sharing

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Central Government notification bringing some of the provisions of Consumer Protection Act 2019 in to force on 20 July 2020

1) https://drive.google.com/file/d/1VJYZHtjSDLwDuGXBRaIc3H3pmnUutWXt/view?usp=sharing

2) https://drive.google.com/file/d/1-1JqZ0sXML6V5LYQazFDPJNN3kmPjrlD/view?usp=sharing

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Whether TDS can be deducted from interest paid on compensation granted by court?

The UT State Consumer Disputes Redressal Commission, headed by Justice (retd) Sham Sunder has ruled that the judgment debtor cannot deduct TDS on the amount of interest paid to a consumer in compliance with a decree passed by the consumer courts.

Earlier, in a complaint case, Shipra Estates Ltd. was held guilty of deficiency in service and vide order dated March 16, 2015, was directed to refund Rs 19,58,491 along with the interest at the rate of 10 per cent per annum from the dates of deposit which were made in 2012. An amount of Rs 50,000 was awarded as compensation and Rs 10,000 as litigation charges. The company failed to comply with the order. The complainant, Brij Mohan Jain, filed a contempt petition against the builder.

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When doctor will be held responsible for medical negligence?

The main defence of the respondents to the complaint
of negligence against the appellant’s claim for compensation
was that at the time of delivery and management, no
deformities were manifested and the complainant was given
proper advice, which was not followed. It was argued on behalf
of the respondent that they had taken sufficient precautions,
even against ROP by mentioning in the discharge summary as
follows:
“Mother confident; Informed about alarm signs; 1) to
continue breast feeding 2) To attend post natal O.P. on
Tuesday."
9. It must, however, be noted that the discharge summary
shows that the above writing was in the nature of a scrawl in
the corner of the discharge summary and we are in agreement
with the finding of the NCDRC that the said remarks are only a
hastily written general warning and nothing more. After a stay
of 25 days in the hospital, it was for the hospital to give a clear
indication as to what was to be done regarding all possible
dangers which a baby in these circumstances faces. It is
obvious that it did not occur to the respondents to advise the
appellant that the baby is required to be seen by a paediatric
ophthalmologist since there was a possibility of occurrence of
ROP to avert permanent blindness. This discharge summary

neither discloses a warning to the infant’s parents that the
infant might develop ROP against which certain precautions
must be taken, nor any signs that the Doctors were themselves
cautious of the dangers of development of ROP. We are not
prepared to infer from ‘Informed about alarms signs’ that the
parents were cautioned about ROP in this case. We find it
unfortunate that the respondents at one stage took a stand that
the appellant did not follow up properly by not attending on a
Tuesday but claiming that the mother attended on a Wednesday
and even contesting the fact that she attended on a Wednesday.
It appears like a desperate attempt to cover up the gross
negligence in not examining the child for the onset of ROP,
which is a standard precaution for a well known condition in
such a case. In fact, it is not disputed that the Respondent
No.3 attended to and examined the baby at his private clinic
when the baby was 14-15 weeks and even then did not take
any step to investigate into the onset of ROP. The Respondent
No.4 also visited the appellant to check up the baby at the
home of the appellant and there are prescriptions issued by the
said Respondent No.4, which suggests that the baby was indeed

under his care from 4 weeks to 13 weeks.

Review of literature of ROP screening guidelines
One thing this report reveals clearly and that is that in the
present case the onset of ROP was reasonably foreseeable. We
say this because it is well known that if a particular danger

could not reasonably have been anticipated it cannot be said
that a person has acted negligently, because a reasonable man
does not take precautions against unforeseeable circumstances.
Though it was fairly suggested to the contrary on behalf of the
respondents, there is nothing to indicate that the disease of ROP
and its occurrence was not known to the medical profession in
the year 1996. This is important because whether the
consequences were foreseeable or not must be measured with
reference to knowledge at the date of the alleged negligence,
not with hindsight. We are thus satisfied that we are not
looking at the 1996 accident with 2007 spectacles.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 8065 OF 2009
V. KRISHNAKUMAR .. APPELLANT
VERSUS
STATE OF TAMIL NADU & ORS. ..RESPONDENTS
With
 CIVIL APPEAL No. 5402 OF 2010
S. A. BOBDE, J.
Citation; AIR 2015 SC 2836
Dated;JULY 1, 2015

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Whether parents of victim are to be compensated in case of medical negligence?

Since there is no reason to assume that there has been
any change in the expenditure, we have calculated the
expenditure from January 2014 to March 2015 at the same rate
as the preceding period. In addition, we also deem it fit to
award a sum of Rs. 1,50,000/- in lieu of the financial hardship
undergone particularly by Sharanya’s mother, who became her
primary caregiver and was thus prevented from pursuing her
own career. In Spring Meadows Hospital and Another v. Harjol
Ahluwalia [1998 4 SCC 39] this court acknowledged the
importance of granting compensation to the parents of a victim
of medical negligence in lieu of their acute mental agony and
the lifelong care and attention they would have to give to the
child. This being so, the financial hardship faced by the parents,
in terms of lost wages and time must also be recognized. Thus,
the above expenditure must be allowed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL No. 8065 OF 2009
V. KRISHNAKUMAR V STATE OF TAMIL NADU & ORS. 

S. A. BOBDE, J.
Citation; AIR 2015 SC 2836
Dated;JULY 1, 2015

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