Jurisdiction of consumer forum- Employee state Insurance act,1948- Claim for damages before consumer forum in respect of deficiency in service in ESI hospital can be maintained
Citation
CDJ 2007 SC 560
Head note
Employees' State Insurance Act, 1948-
Consumer Protection Act, 1986-Section 2(1)(d)-Whether the service rendered by an ESI hospital is gratuitous or not, and consequently whether it falls within the ambit of 'service' as defined in the Consumer Protection Act, 1986-held-Service rendered in the hospital to the insured person or his family member for medical treatment is not free, in the sense that the expense incurred for the service rendered in the hospital would be borne from the contributions made to the insurance scheme by the employer and the employee- Wherever the charges for medical treatment are borne under the insurance policy, it would be a service rendered within the ambit of Section 2(1)(o) of the CP Act-The service rendered by the medical practitioners of hospitals/nursing homes run by the ESI Corporation cannot be regarded as a service rendered free of charge-The person availing of such service under an insurance scheme of medical care, where under the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the CP Act-the service provided by the ESI hospital/dispensary falls within the ambit of 'service' as defined in Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous
Para 13 & 14
Employees State Insurance Act, 1948-Section74 &75-Whether Section 74 read with Section 75 of the Employees' State Insurance Act, 1948 ousts the jurisdiction of the consumer forum as regards the issues involved for consideration-held-A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees' Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees' Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumer's dispute falling under the CP Act.
Para 21
Case Law Referred :
1.Jacob Mathew Vs. State of Punjab and Another 2005 (6) SCC 1 (Para 20).
2.Laxman Thamappa Kotgiri v. G.M. Central Railway & Ors., 2005 (1) Scale 600 (Para 9).
3.Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha and Others, 2004 (1) SCC 305 (Para 17).
4.State of Karnataka Vs. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043 (Para 17).
5.Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 2000 (1) SCC 98 (Para 10).
6.M/s. Spring Meadows Hospital and Another Vs. Harjol Ahluwalia and Another, AIR 1998 SC 1801 (Para 17).
7.Indian Medical Association Vs. V.P. Shantha and Others, 1995 (6) SCC 651 (Para 2).
8.Birbal Singh Vs. ESI Corporation 1993 II CPJ 1028 (Para 2).
Comparative Citations:
2007 (2) KLT 979 (SC), 2007 (3) CTC 561, 2007 (4) MLJ 540 (SC), 2007 AIR(SC)1819, 2007 (4) SCC 579, 2007 AIR(SCW) 3032, 2007 (4) ALD 36 (SC), 2007 (6) BCR 345, 2007 (2) CPJ 25, 2007 (6) JT 541, 2007 (3) LLJ 181, 2007 (4) Supreme 775, 2007 (7) AD(SC) 288, 2007 (3) LW 234, 2007 AIR(SC) 1819, 2007 (4) AIR(Kar) 267 R, 2007 LLR 740, 2007 (3) RAJLW 2437, 2007 KHC 3511
Consumer Protection Act, 1986-Section 2(1)(d)-Whether the service rendered by an ESI hospital is gratuitous or not, and consequently whether it falls within the ambit of 'service' as defined in the Consumer Protection Act, 1986-held-Service rendered in the hospital to the insured person or his family member for medical treatment is not free, in the sense that the expense incurred for the service rendered in the hospital would be borne from the contributions made to the insurance scheme by the employer and the employee- Wherever the charges for medical treatment are borne under the insurance policy, it would be a service rendered within the ambit of Section 2(1)(o) of the CP Act-The service rendered by the medical practitioners of hospitals/nursing homes run by the ESI Corporation cannot be regarded as a service rendered free of charge-The person availing of such service under an insurance scheme of medical care, where under the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service would fall within the ambit of 'service' as defined in Section 2(1)(o) of the CP Act-the service provided by the ESI hospital/dispensary falls within the ambit of 'service' as defined in Section 2(1)(o) of the CP Act. ESI scheme is an insurance scheme and it contributes for the service rendered by the ESI hospitals/dispensaries, of medical care in its hospitals/dispensaries, and as such service given in the ESI hospitals/dispensaries to a member of the Scheme or his family cannot be treated as gratuitous
Para 13 & 14
Employees State Insurance Act, 1948-Section74 &75-Whether Section 74 read with Section 75 of the Employees' State Insurance Act, 1948 ousts the jurisdiction of the consumer forum as regards the issues involved for consideration-held-A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees' Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees' Insurance Court is expressly barred by virtue of sub-section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance Court under clauses (a) to (f) of sub-section (2) of Section 75 if it is a consumer's dispute falling under the CP Act.
Para 21
Case Law Referred :
1.Jacob Mathew Vs. State of Punjab and Another 2005 (6) SCC 1 (Para 20).
2.Laxman Thamappa Kotgiri v. G.M. Central Railway & Ors., 2005 (1) Scale 600 (Para 9).
3.Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha and Others, 2004 (1) SCC 305 (Para 17).
4.State of Karnataka Vs. Vishwabarathi House Building Co-op. Society and Others, AIR 2003 SC 1043 (Para 17).
5.Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, 2000 (1) SCC 98 (Para 10).
6.M/s. Spring Meadows Hospital and Another Vs. Harjol Ahluwalia and Another, AIR 1998 SC 1801 (Para 17).
7.Indian Medical Association Vs. V.P. Shantha and Others, 1995 (6) SCC 651 (Para 2).
8.Birbal Singh Vs. ESI Corporation 1993 II CPJ 1028 (Para 2).
Comparative Citations:
2007 (2) KLT 979 (SC), 2007 (3) CTC 561, 2007 (4) MLJ 540 (SC), 2007 AIR(SC)1819, 2007 (4) SCC 579, 2007 AIR(SCW) 3032, 2007 (4) ALD 36 (SC), 2007 (6) BCR 345, 2007 (2) CPJ 25, 2007 (6) JT 541, 2007 (3) LLJ 181, 2007 (4) Supreme 775, 2007 (7) AD(SC) 288, 2007 (3) LW 234, 2007 AIR(SC) 1819, 2007 (4) AIR(Kar) 267 R, 2007 LLR 740, 2007 (3) RAJLW 2437, 2007 KHC 3511
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