P. P. Naolekar, J. - (1.) The appellant was insured with the respondent-Employees State Insurance Corporation (for short "the Corporation") with Insurance No. 913644. The employees/appellants contribution towards the insurance scheme under the Employees State Insurance Act, 1948 (hereinafter referred to as "the ESI Act") was being deducted regularly from his salary and deposited by his employer with the Corporation. In 1993, the appellants wife was admitted in the ESI dispensary at Sonepat for her treatment for diabetes. However, the condition of his wife continued to deteriorate. As alleged by the appellant, there were instances when the doctors were not available even during emergencies. Later, the appellant got his wife medically examined in a private hospital. The tests done revealed that his wife had been diagnosed incorrectly in the ESI dispensary; and that the deterioration in the condition of the appellants wife was a direct result of the wrong diagnosis. The appellant filed a complaint under the Consumer Protection Act, 1986 (hereinafter referred to as "the CP Act") before the District Consumer Disputes Redressal Forum seeking (i) compensation towards mental agony, harassment, physical torture, pains, sufferings and monetary loss for the negligence of the authorities; (ii) direction for removal of, and improvement in, the deficiencies; and (iii) direction for payment of interest on the amount of reimbursement bills. The Corporation through its officers entered appearance and raised certain preliminary objections, namely, (i) that the complaint filed is not maintainable in the District Consumer Forum and is liable to be dismissed as the wife of the complainant was treated in the ESI dispensary, Sonepat, which is a government dispensary and the complainant cannot be treated as a consumer; and (ii) that the complainant is not a consumer within the definition of Rs. consumer in the CP Act and he is not entitled to file a complaint against the ESI dispensary. It was also contended that the facility of medical treatment in government hospital cannot be regarded as a Rs. service hired for consideration, apart from the other defences raised in the written statement.
(2.) The District Consumer Forum relied on the ratio of Birbal Singh v. ESI Corporation, 1993 II CPJ 1028, wherein on a complaint filed for compensation for being aggrieved by poor medical attention received by the late wife of the complainant at an ESI hospital, the Haryana State Commission had held that the complainants did not come within the ambit of the definition of consumer under the CP Act because of the gratuitous nature of the medical services provided. On this basis, the District Forum held that the services rendered by the ESI dispensary are gratuitous in nature and, therefore, out of the purview of the CP Act. Appeal was preferred to the Haryana State Consumer Disputes Redressal Commission and it was urged by the appellant that ESI is a scheme of insurance and hence the service rendered by the Corporation was not gratuitous. The State Commission relying on the judgment in Birbal Singh (supra) and Indian Medical Association v. V.P. Shantha and Others, (1995) 6 SCC 651 held that free medical services were not covered by the CP Act and upheld the judgment of the District Forum. Appellant preferred a revision before the National Consumer Disputes Redressal Commission, but the same was also dismissed in limine. Hence, this appeal by special leave.
(3.) By second counter affidavit filed in August, 2000, the respondent-Corporation have also raised the question of the jurisdiction of a consumer forum. The respondent contended that by virtue of Section 75 of the ESI Act, the dispute raised by the appellant is covered and is to be decided by the Employees Insurance Court established under Section 74 of the ESI Act and it being a special Act the jurisdiction of the consumer forum is ousted.;