UNION OF INDIA & ANR.versusN. R. SRIVASTA & ORS.

                          [2020] 6 S.C.R. 1                               1


                    UNION OF INDIA & ANR.                                 A
                                  v.
                     N. R. SRIVASTA & ORS.
                   (Civil Appeal No. 2823 of 2020)
                            JULY 23, 2020                                 B

          [DR. DHANANJAYA Y. CHANDRACHUD,
        INDU MALHOTRA AND K. M. JOSEPH, JJ.]
      Consumer Protection Act, 1986:
       s. 2(1)(o) – Medical negligence – Complaint – Against a            C
private hospital and a Government hospital – District Consumer
Forum dismissed the complaint against the private hospital while
as against the Government hospital held that it was not maintainable
as the treatment was offered free of cost – State Consumer Commission
held the private hospital guilty of negligence and directed it to pay     D
compensation of Rs. 2 lakhs – As regards Government Hospital,
State Commission held that complaint was not maintainable against
it, but it was guilty of negligence – National Consumer Commission
in the Revision Petition filed by the private hospital held that it was
not guilty of negligence – As regards Government hospital, National
Commission held that finding of State Commission that the hospital        E
was not amenable to jurisdiction of consumer fora was contrary to
decision in Indian Medical Association case and holding that the
hospital was guilty of medical negligence directed it to pay
compensation of Rs. 2 lakhs – Appeal to Supreme Court – Held: As
regards the question of jurisdiction of consumer fora against the
                                                                          F
Government hospital, in absence of factual foundation in the
pleadings and evidence, the question is left open – National
Commission by reversing the finding on maintainability of the
complaint against the Government hospital in a Revision Petition
filed by the private hospital, exercised the powers conferred on an
appellate Court under Order XLI Rule 33 CPC – The question                G
whether the National Commission could exercise such powers in
exercise of its Revisional jurisdiction is also left open – However,
the judgment of National Commission is affirmed on the ground
that quantum of the compensation is small enough to attract
interference of Supreme Court – The judgment of National
                                                                          H
                                    1
2             SUPREME COURT REPORTS                         [2020] 6 S.C.R.


A   Commission or this judgment not to be regarded as precedent –
    Appeal dismissed.
           Indian Medical Association v. V.P. Shantha (1995) 6
           SCC 651 : [1995] 5 Suppl. SCR 110 – referred to.
                            Case Law Reference
B
    [1995] 5 Suppl. SCR 110             referred to            Para 4
          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2823
    of 2020.
          From the Judgment and Order dated 07.10.2016 of the National
C   Consumer Disputes Redressal Commission, New Delhi in R.P. No. 1299
    of 2014.
          R S Suri, ASG, Dr. Manish Singhvi, Sr. Adv., Gurmeet Singh Makker,
    Rajesh Ranjan, Vansdeep Dalmia, Sandeep Jha, Ms. Ruchi Kohli,
    Ms. Shobhana T., Ms. Mahua Kalra, Dinesh Kumar, Naresh Kumar,
D   Shantanu Sagar, Pramod Dayal, Shekhar Prit Jha, Asis, Ashish Dholakia,
    Amit, Ikshit Singhal, Mohit Kaushik, M.K. Singh, G. Balaji, Advs. for the
    appearing parties.
           The Judgment of the Court was delivered by
           DR DHANANJAYA Y CHANDRACHUD, J.
E
           1. Leave granted.
            2. The appeal arises from an order of the National Consumer
    Disputes Redressal Commission1 dated 7 October 2016. The Union of
    India, through the Secretary in the Ministry of Health and Family Welfare,
F   and Safdarjung Hospital have challenged the order of the NCDRC. The
    first respondent was the original complainant in a consumer complaint2
    instituted before Consumer Disputes Redressal Forum – II3, New Delhi.
    The complaint alleged medical negligence against Sarvodaya Hospital
    and Safdarjung Hospital. The NCDRC allowed the revision of Sarvodaya
    Hospital. While exonerating it of the finding of medical negligence, it
G   held Safdarjung Hospital liable to pay the compensation of Rs 2 lakhs
    imposed by the State Consumer Disputes Redressal Commission4.
    1
      NCDRC
    2
      Case No. 55/2005
    3
      District Forum
H   4
      SCDRC
        UNION OF INDIA & ANR. v. N. R. SRIVASTA & ORS.                          3
              [DR DHANANJAYA Y CHANDRACHUD, J.]

       3. The spouse of the complainant who was pregnant, was admitted          A
to Sarvodaya Hospital in a medical emergency at about 5 am on 9 March
2004. 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 spouse
were referred to Safdarjung Hospital for admission of the child for
                                                                                B
emergency medical care. The grievance against Sarvodaya hospital was
that prior to the delivery, it had been represented that the Hospital was
fully equipped with a Nursery ICU and that when the complainant came
to realise that this was not the case, he felt cheated. The complainant
proceeded to Safdarjung Hospital with his spouse and child between 12
and 1 pm on 9 March 2004. The grievance of the complainant was that             C
at Safdarjung Hospital, the baby was not placed in a Nursery ICU, but
was initially admitted to the General Ward and thereafter to a General
ICU. The child died in the last week of April 2004. A complaint was
presented before the District Forum seeking damages against Sarvodaya
Hospital and Safdarjung Hospital.
                                                                                D
       4. The District Forum dismissed the consumer complaint. As
regards, Sarvodaya Hospital, it arrived at the finding that there was no
misrepresentation of fact and that the Hospital had an independent facility
of a Nursery and ICU available. The District Forum held that the spouse
of the complainant was operated upon in an emergency to save the lives
of the mother and the child. Hence, there was no deficiency on the part         E
of Sarvodaya Hospital in referring the complainant to a specialized facility.
As regards Safdarjung Hospital, the complaint was held not to be
maintainable on the ground that treatment had been afforded free of
cost to the patient. Relying on the decision of this Court in Indian
Medical Association v V P Shantha5, the complaint was held not to be            F
maintainable.
      5. An appeal6 was filed before the State Consumer Disputes
Redressal Commission by the original complainant. The SCDRC, by its
judgment dated 10 December 2013, came to the conclusion that
Sarvodaya Hospital was guilty of medical negligence and directed it to          G
pay a sum of Rs 2,00,000 as compensation and costs quantified at
Rs 20,000. However, the complaint was held not to be maintainable
against Safdarjung Hospital. The SCDRC relied upon an affidavit of Dr
5
    (1995) 6 SCC 651
6
    FA-429/07                                                                   H
4                SUPREME COURT REPORTS                          [2020] 6 S.C.R.


A   K C Aggarwal who deposed in support of the plea that the treatment
    had been provided free of cost without charging any fees. Finding that
    there was no denial of this assertion and relying on the decision of this
    Court in Indian Medical Association, the complaint was rejected as
    against Safdarjung Hospital. However, the SCDRC had also found
    negligence on the part of Safdarjung Hospital.
B
           6. A revision7 was filed against the judgment of the SCDRC by
    Sarvodaya Hospital before the NCDRC. The NCDRC, by its judgment
    dated 7 October 2016, allowed the revision and came to the conclusion
    that Sarvodaya Hospital was not guilty of medical negligence. The finding
    of fact was that the spouse of the complainant had been admitted to the
C   hospital in a precarious condition and was a high risk patient. Relying on
    the progress notes of the hospital, the NCDRC noted that the hospital
    had referred the patient to a specialized facility after taking the consent
    of the complainant. The finding was to the following effect:
             “19. A brief perusal of the prescription shows that the patient was
D            admitted in the First Opposite party Hospital in a precarious
             condition of umbilical cord collapsing through the vagina; a gross
             risk of survival of the baby inside the womb; the risk of the blood
             supply being cut off and high chances of the baby being born
             asphyxiated. The progress notes show that all due care and caution
E            was taken which was required under the standard practice of
             normal medical parlance by the First Opposite party Hospital in
             delivering the baby through Caesarian Section and hence, no
             deficiency can be attributed to the first Opposite Party Hospital
             or its Doctors, as there is no documentary evidence suggesting
             any kind of negligence in the line of treatment rendered to the
F            patient. The baby was rightly referred to a higher management
             Hospital, in the absence of the necessary nursery facilities required
             to handle a premature baby. We hold accordingly.”
          7. However, having allowed the revision that was filed by
    Sarvodaya Hospital against the finding of negligence, the NCDRC
G   elaborated on the question as to whether Safdarjung Hospital had been
    correctly exonerated. Safdarjung Hospital was a party to the proceedings
    before the NCDRC and was heard in the revision that was filed by
    Sarvodaya Hospital. The NCDRC noted that though Safdarjung Hospital
    was exonerated by the District Forum and the SCDRC on the ground
H   7
        Revision Petition No 1299 of 2014
          UNION OF INDIA & ANR. v. N. R. SRIVASTA & ORS.                            5
                [DR DHANANJAYA Y CHANDRACHUD, J.]

that the treatment had been rendered free of charge and the hospital                A
was not amenable to the jurisdiction of the consumer fora under the
Consumer Protection Act 19868, the SCDRC had, on merits, come to
the 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 baby
was admitted to Ward No 20, then to Ward No 18 and eventually in the
                                                                                    B
General ICU. This finding had attained finality. The NCDRC held that
the finding of the SCDRC that Safdarjung Hospital was not amenable to
the jurisdiction of the consumer fora was contrary to the decision of this
Court in Indian Medical Association. The NCDRC held that though
the complainant had not filed a revision against the order of the SCDRC
specifically holding that Safdarjung Hospital was not amenable to the               C
jurisdiction of the consumer fora, he was not precluded from challenging
a finding which was adverse to him in the revision petition. On these
facts, the NCDRC sustained the finding of medical negligence against
Safdarjung Hospital and directed it to pay compensation quantified at Rs
2 lakhs.
                                                                                    D
       8. Mr R S Suri, Additional Solicitor General, has appeared in support
of the appeal filed by the Safdarjung Hospital. The submission is that no
charges across the board are levied at Safdarjung Hospital and, hence,
the finding that was arrived at by the NCDRC is unsustainable. Mr
Dinesh Kumar, learned counsel has appeared on behalf of the original
complainant and opposed the appeal. Sarvodaya Hospital has been                     E
represented by Mr Shantanu Sagar, learned counsel.
      9. 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               F
Section 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 made
          available to the potential users and includes the provision of
          facilities in connection with banking, financing, insurance, transport,   G
          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;”                                                        H
8
    Act
6             SUPREME COURT REPORTS                           [2020] 6 S.C.R.


A          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
B
    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.
C         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.”
           11. From the record, we find that, in the present case, the only
D   factual foundation that was led before the District Forum was the
    evidence of Dr K C Aggarwal who deposed that the patient in question
    had been treated free of charge. We have scrutinized the grounds of
    appeal in the Special Leave Petition. Not even a single ground has been
    raised by Safdarjung Hospital, challenging the factual basis of the finding
E   that has been arrived at by the NCDRC on the issue of jurisdiction. Nor
    has any other factual material been placed on the record to enable the
    Court to decide on whether it satisfies the tests enunciated in Indian
    Medical Association. Hence, in the absence of a proper challenge
    before the District Forum, the SCDRC or the NCDRC and, as we have
    seen above, even before this Court, it would be inappropriate for this
F   Court to render a conclusive opinion. We ought not to do so in the absence
    of a factual foundation in the pleadings and evidence. We are also mindful
    of the fact that the award in the present case is in a relatively small
    amount of Rs 2 lakhs.
           12. However, Mr R S Suri submitted that it would be appropriate
G   for this Court, having regard to the recurring nature of the issue, to leave
    the question of jurisdiction open to be decided in an appropriate case
    where a factual foundation can be laid by the Union of India and
    Safdarjung Hospital, both in the pleadings and evidence. We consider
    this to be appropriate so as to ensure that while we are affirming the
H   judgment of the NCDRC in the present case on the ground that the
      UNION OF INDIA & ANR. v. N. R. SRIVASTA & ORS.                              7
            [DR DHANANJAYA Y CHANDRACHUD, J.]

quantum of the claim is small enough to not warrant the intervention of           A
this Court, the decision of this Court (or of the NCDRC) is not regarded
as a precedent for having decided a question of law in the generality of
cases that may arise involving Safdarjung Hospital. We therefore confine
the judgment of the NCDRC to the peculiar factual background, as we
have noted in the present case. We clarify that we have left open the
                                                                                  B
issue as to whether Safdarjung Hospital would be governed by the
provisions of the Act, more particularly, having regard to the provisions
of Section 2(1)(o), to be decided in an appropriate case. The impugned
judgment of the NCDRC shall not be cited as a precedent. The issue,
including any other issues which may arise is left open to be adjudicated
upon in an appropriate case.                                                      C
       13. Another aspect which requires mention is that the SCDRC
had held that Safdarjung Hospital was not amenable to the jurisdiction
created by the Act. This was not challenged by the complainant.
Sarvodaya Hospital challenged the order of the SCDRC. The NCDRC
reversed the finding on maintainability which was in favour of Safdarjung         D
Hospital in a revision by Sarvodaya Hospital. It attempted to do “complete
justice”, ignoring that it is not entrusted with the jurisdiction which is
exclusively conferred on this Court under Article 142. In an appropriate
case, it will have to be decided whether the NCDRC can at all exercise
in revisional proceedings the powers which have been conferred on an
appellate court under Order XLI Rule 33 of the Code of Civil Procedure            E
1908. 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 appeal
only on the ground of the smallness of the quantum involved. The appeal
is accordingly dismissed but with the above clarifications. The payment           F
of Rs 2 lakhs in compliance of the order of the NCDRC shall be made to
the original complainant within a period of two months from the date of
receipt of a certified copy of this order. Time to pay the amount of Rs 2
lakhs is accordingly extended.
       15. Pending application, if any, stands disposed of.                       G


Kalpana K. Tripathy                                           Appeal dismissed.



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