Background Facts Leading to the Legal Question:

Person underwent surgery for removing stones in the pancreas. During the procedure, a clip
was left in the same. The hospital and the doctor claim no adverse effect has been caused
owing to the same vis a vis the patient claiming inability to reproduce a child post the
surgery, hence medical negligence. The surgery that she underwent was free of cost in the Sri
Sathya Sai Hospital in Whitefield in Karnataka.

The Questions that arise are:

1. Whether persons that avail free services can be a consumer?

 The first case in the Indian legal history that discusses government hospital services in
relation to a consumer is National Commission in Consumer Unity & Trust Society,
Jaipur v. State of Rajasthan, (I (1992) CPJ 259 (NC)), wherein it was held that a
person who goes to receive medical treatment in a government hospital is not a
consumer. The complaint had been filed on behalf of a lady who had undergone
abdominal tubectomy operation at the Government Hospital, Kota, as a part of Family
Planning Programme but later on developed severe complications. The Commission
although declined the maintainability of such complaints on several grounds, interalia,
to discourage multifarious and frivolous litigation but at the same time called upon the
Government to take steps to improvise proper and efficient medical services to the
public.
 Based on the aforesaid view taken by the court, in the case of Mrs. Mable Roosevelt
v. State of Kerala, (II (1992) CPJ 113 (NC)) when the complaint was filed against the
government hospitals. The Judgement given in National Commission that claims for
compensation brought against the State Government cannot be maintained was relied
upon. In the instant case, the complainant's husband was treated in the Government
hospital free of charge where he suffered cardiac arrest while under anaesthesia. The
patient had suffered severe cerebral damage because of lack of blood supply to the
brain at the relevant time and was lying in a semi-conscious state at the hospital for
more than one and a half years. But treatment being free of charge, no relief could be
granted. However, in view of the gravity of the misfortune, the National Commission
observed that the Government should take steps to render medical service to the
patient free of charge till he recovered from the existing state of total disability and
also provide employment either to the wife or children of the patient.
 Dr. Ravinder Gupta v. Ganga Devi, (1993(3) CPR 225). Where a charitable hospital
admits the patient in the 'paid ward' where affluent people can get admitted as
compared to the general ward where poor people get admission, the former cannot be
termed as consumer under the Act merely because they pay some amount. The status
of the hospital does not change in this regard.
 Dr. S. Venkataraman v. M. Chandrasekaran, (1995 (2) CPR 482). Held that, free
service rendered by doctor employed in a hospital run by Voluntary Health Services is
without consideration and person availing such services is not a consumer.
 K. Srinivasa v. Dr. L.Yoganarasimhachar, Prof. & HO. Deptt. of Orthopaedics,
(1995(3) CPR 121), wherein it has been held that a patient availing facility in a
government hospital is not a consumer and is therefore not competent to file a
complaint under the Consumer Protection Act, 1986.

 The Supreme Court in the case of Indian Medical Association v V.P Shantha,
(MANU/SC/0836/1995) clarified the law regarding service of any description, any
service free of charge and contract of personal service. The court stated as follows:
“Till date from all spheres of the Indian society heated controversy in the matter of
accountability of the medical practitioners to the consequences of culpable cases of
professional negligence and indemnification of the aggrieved parties, was circuiting
around the three phrases in the definition of 'service' under the Consumer Protection
Act, 1986, namely:—
(i) service of any description
(ii) any service free of charge
(iii) contract of personal service”
The findings of the Supreme Court on the aforesaid issues are as under:—
“(i) Service of any description
(a) Medical services are covered under the definition of 'services';
(b) Doctors and hospitals (subject to exceptions herein contained,) fall within the
scope of summary jurisdiction of the Act for the grant of compensation and other
reliefs envisaged under the Act to the person suffering any loss on account of any
negligence or deficiency in such 'service';
(c) Service includes rendering of consultation, diagnosis and treatment both medical
and surgical.
(d) Professional men should possess a certain degree of competence and they should
exercise reasonable care in the discharge of their duties.
(e) Medical practitioners do not enjoy any immunity and they can be sued in contract
or tort on the ground that they have failed to exercise reasonable skill and care.

(ii)Any service free of charge

(a) Services rendered at a government hospital, health centre or dispensary where no
charge whatsoever is made from any person availing the services and all patients
(rich and poor) are given free service is excluded from the purview of the Act.
Registration fee in such cases will not amount to payment of consideration for the
services;
(b) Service rendered free of charge by a medical practitioner attached to a hospital or
nursing home is excluded from the purview of the Act.
(c) Service rendered by a medical officer employed in a hospital or nursing home
where services are rendered free of charge to everybody is excluded from the
purview of the Act;
(d) Service rendered at a non-government hospital or nursing home where no charge
whatsoever is made from any person availing the service and all patients (rich
and poor) are given free service is excluded from the purview of the Act;
(e) Service rendered at a government hospital, health centre or dispensary where
services are rendered on payment of charges and also rendered free of charge to
other persons availing such services falls within the purview of the Act. Rendering
of free services also by such institutions to persons who do not pay is no more a
ground for seeking immunity from the scope of the Act and even the person who
has availed free service can maintain an action against such institutions;
(f) Service rendered at a non-government hospital or nursing home where charges
are required to be paid by the persons availing such services, falls within the
purview of the Act.
(g) Service rendered at a non-government hospital or nursing home where charges
are required to be paid by persons who are in a position to pay and persons who
cannot afford to pay are rendered service free of charge fall within the purview of
the Act. Rendering of free services also by such institutions to persons who do not
pay is no more a ground for seeking immunity from the scope of the Act and even
the person who has availed free service; Can maintain an action against such
institution;
 (h) Service rendered by a medical practitioner or hospital or nursing home wherein
the expenses for consultation, diagnosis and medical treatment are reimbursed
and the patient is indemnified under the terms and conditions of a medical
insurance policy contract falls within the purview of the Act;
(i) Service rendered by a medical practitioner or hospital or nursing home wherein
the expenses of medical treatment of the patient and his family members are
reimbursed and indemnified under the conditions of service of such a patient by
his employer falls within the purview of the Act.

(iii) Contract of Personal Service

(i) 'Contract of personal service' has to be distinguished from a 'contract for
personal service'. In the absence of relationship of master and servant
between the patient and the medical practitioner, the service rendered by a
medical practitioner to the patient cannot be regarded as service rendered
under a contract of personal service. It is 'contract for personal service.
Where, however, there is relationship like that of master and servant it is a
'contract of personal service' and is excluded from the purview of the Act.
(ii) Service rendered by a medical officer to his employer under the contract of
employment is excluded from the purview of the Act.”

 Consequently, in the case of Laxman Thamappa Kotgiri v. G.M. Central Railway and
Ors. (2005 (1) Scale 600), where an employee of the railways had filed a complaint
on the ground that his wife had been negligently treated at a hospital of the Central
Railway as a result of which she had died, the State Commission concluded that since
the hospital had been set up to treat railway employees predominantly and the service
provided was free of charge it did not come within the definition of 'service' under the
CP Act and hence the complaint was not maintainable. On appeal to the National
Commission, the judgment of the State Commission was upheld and the appeal filed
by the employee was rejected. For the disposal of this appeal, IMA v V.P Shantha was
relied upon.

 In the case of Kishore Lal v Chairman, Employees State Insurance Corporation,

(MANU/SC/2148/2007), held that Consumer Protection Act, 1986 - Section 2 (1)
 (o)--Service—as provided by E.S.I. hospital/ dispensary falls within ambit of 'service'
as defined in Section 2 (1) (o). Furthermore, E.S.I. scheme is an insurance scheme, it
contributes for service rendered by E.S.I. hospitals/ dispensaries of medical care in its
hospitals / dispensaries. Hence, service given by E.S.I. hospitals/dispensaries to
member of scheme or his family cannot be treated as gratuitous and beneficiaries for
the same are in fact consumers.

 In the case of K. Kotaiah Iras v T.Anjaiah and Ors, (MANU/CF/0119/2017) the

National Consumer Forum relied upon the distinction made in the aforementioned
case to reiterate that the service provided by Railway Hospital was negligent. It also
laid down the foundation stones to hold another hospital liable which the patient was
referred to without physical records, consequently making both the Railway Hospital
and Private Hospital liable to pay.

2. Can a civil case for medical negligence be filed?

 At a point where the Consumer Protection Act ends, the law of torts takes over
and protects the interests of patients. This applies even if medical
professionals provide free services. In cases where the services offered by the
doctor or hospital do not fall in the ambit of ‘service’ as defined in the
Consumer Protection Act, patients can take recourse to the law relating to
negligence under the law of torts and successfully claim compensation. The
Supreme Court in the case of Achutrao Khodwa v. State of Maharashtra
(MANU/SC/0600/1996) provided for vicarious liability of the State for a
tortious act stating that:
“Running a hospital is a welfare activity undertaken by the government but it
is not an exclusive function or activity of the government so as to be classified
as one which could be regarded as being in exercise of its sovereign power. In
Kasturi Lal's case itself, in the passage which has been quoted hereinabove,
this Court noticed that in pursuit of the welfare ideal the government may
enter into many commercial and other activities which have no relation to the
traditional concept of governmental activity in exercise of sovereign power.
Just as running of passenger buses for the benefit of general public is not a
sovereign function, similarly the running of a hospital, where the members or
 the general public can come for treatment, cannot also be regarded as being
an activity having a sovereign character. This being so, the State would be
vicariously liable for the damages which may become payable on account of
negligence of its doctors or other employees.
17. Even if it be assumed that it is the second operation performed by Dr.
Divan which led to the peritonitis, as has been deposed to by Dr. Purandare,
the fact still remains that but for the leaving of the mop inside the peritoneal
cavity, it would not have been necessary to have the second operation.
Assuming even that the second operation was done negligently or that there
was lack of adequate care after the operation which led to peritonitis, the fact
remains that Dr. Divan was an employee of respondent No. 1 and the State
must be held to be vicariously liable for the negligent acts of its employees
working in the said hospital. The claim of the appellants cannot be defeated
merely because it may not have been conclusively proved as to which of the
doctors employed by the State in the hospital or other staff acted negligently
which caused the death of Chandrikabai. Once death by negligence in the
hospital is established, as in the case here, the State would be liable to pay the
damages. In our opinion, therefore; the High Court clearly fell in error in
reversing the judgment of the trial court and in dismissing the appellants'
suit.”
 In the judgement given by the Madras High Court in the case of Arpana Dutta
v. Apollo Hospitals Enterprises and Ors. (MANU/TN/0424/2000) the
questions raised were whether defendants negligent in treatment accorded to
plaintiff and whether the plaintiff is entitled to relief. The court held that there
was sufficient evidence to establish that abdominal pack was left behind in the
abdominal region at the time of operation done by third defendant in hospital
of first defendant without sufficient care and caution in conducting operation
which is expected from a doctor. Consequently, it was decided that the
plaintiff was entitled to get money paid to defendants towards fee for
operation as well as the money the plaintiff spent for having second
correctional operation to total damages of Rs. 580000 with 12% interest.
 In the case of Suresh Gupta v. Government of N.C.T of Delhi, (AIR 2004 SC
4091 1), the Supreme Court held that the legal position is quite clear and well
settled that whenever a patient died due to medical negligence, the doctor is
primarily liable under civil law.