- (1.) THIS is a complaint under Ss. 12 (l) (b) and 17 (a) (i) of the Consumer Protection Act, 1986 (Act No. LXVIII of 1986), (for short "the Act" hereinafter) filed by Shri Pradeep S. Mehta, General Secretary, Consumer Unity and Trust Society (CUTS) for compensation to the tune of Rs. 9,31,000/- and certain other directions for proper medical treatment, payment of bills relating to the purchase of medicines etc. , on account of negligence and carelessness of Dr. B. L. Gochar (opposite-party no. 2), Civil Surgeon, Kota while performing an operation for sterilization (Abdominal Tubectomy) upon Smt. Sushila Devi w/o Shri Brajmohan Pareta resident of Lakheri, District Bundi. The complaint is dated August 19, 1988. It may be mentioned that Shri Brajmohan Pareta ('the applicant' for the sake of convenience) husband of Smt. Sushila Devi submitted an application dated July 27, 1988 to the General Secretary, Consumer Unity and Trust Society (CUTS) complaining of the negligence of the doctor while performing the operation and carelessness in looking after the patient after the operation. The CUTS took the cause of the applicant and after correspondence with the authorities, ultimately, filed this complaint. The complaint is accompanied by some documents.
(2.) THIS complaint has been registered as Complaint no. 1 of 1988. Notices were ordered to be issued to the complainant Shri Pradeep S. Mehta, General Secretary and opposite-party no. 1 State of Rajasthan through the Secretary, Medical and Health Department, Rajasthan, Jaipur and also through the Director, Medical and Health Department, (Family Welfare), Jaipur and opposite-party no. 2 Dr. B. L. Gochar, Civil Surgeon, Kota. Notices were sent to the complainant as well as to the opposite-parties by registered post. Acknowledgement of the notice of Dr. B. L. Gochar, which was sent by registered post on November 18, 1988 has not been received after service. The registered envelope has not been received undelivered though* more than three weeks had passed when the complaint was fixed for hearing on December 14,. 1988. Nobody has appeared on behalf of opposite-party no. 1 despite service. After perusing the complaint, we thought it proper to hear the complainant as regards the maintainability of the complaint under the Act before the State Commission. Consequently, we heard Shri Pradeep S. Mehta, General Secretary and Shri Sanwat Mal Mathur on behalf of CUTS and also Shri Brajmohan Pareta (applicant) husband of Smt. Sushila Devi, for whose benefit the complaint has been filed. It was vehemently contended before us by Shri Pradeep S. Mehta that this complaint is maintainable under Ss. 12 (l) (b) and 17 (a) (i) of the Act. He referred to S. 2 (l ). (b) of the Act which defines "complainant". He also referred to S. 2 (c) and S. 2 (o) of the Act, which deal with the definitions of "complaint" and "service". We may usefully notice the relevant provisions of the Act for deciding the question of the maintainability of the complaint. S. 18 of the Act provides for procedure applicable to State Commissions. S. 2 (l) (b) of the Act reads as under : - " (b) 'complainant' means - (i) a consumer ; or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force ; or (iii) the Central Government or any other State Government, who or which makes a complaint;" 'complaint' has been defined in S. 2 (l) (c) of the Act, which is as under : - " (c) 'complaint' means any allegation in writing made by a complainant that - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act;" Attention of Shri Pradeep S. Mehta was invited to S. 2 (l) (d) of the Act, which defines "consumer". The relevant portion of s. 2 (l) (d) of the Act, for our purpose is as follows : - " (d) 'consumer' means, any person who, - (i) x x xx x x (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned persons. "
(3.) IT was put to Shri Pradeep Mehta, General Secretary, CUTS, as to how this complaint can be entertained by the State Commission in view of the definition of "consumer" mentioned in S. 2 (1) (d) of the Act as Shri Brajmohan Pareta (applicant) has not hired any service for consideration for the operation performed upon his wife (Smt. Sushila Devi ). S. 2 (1) (o) of the Act is as under: - " (o) 'service' means service of any description which is made available to 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, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of (personal service. " Shri Pradeep S. Mehta argued that having regard to the definition of "service", the complaint is maintainable as the services rendered by the doctor in connection with the operation performed upon Smt. Sushila Devi w/o Shri Brajmohan Pareta (applicant) suffered from deficiency within the meaning of S. 2 (l) (g) of the Act. It was also submitted that the Act is a beneficial legislation promulgated for the benefit of the consumer as defined in S. 2 (l) (d) of the Act, for the Act provides for the better protection of the interest of the consumers. He also urged that the Act should be given a liberal interpretation though the services rendered by Dr. B. L. Gochar, Civil Surgeon, Kota may not strictly be hired services for consideration. He also pressed for our consideration that atleast directions should be given for giving free proper treatment to Smt. Sushila Devi, who has suffered a lot on account of the negligence and carelessness of the concerned doctor and also for re-imbursement/payment of the medical bills etc. We have bestowed our most thoughtful consideration to the submissions made by Shri Pradeep Mehta. The question that arises is whether Smt. Sushila Devi or for that matter her husband is a "consumer" within the meaning of the Act. ;