Kerala High Court
Regional Cancer Center vs Kerala State Consumer Dispute on 4 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 04TH DAY OF MARCH 2021/13TH PHALGUNA, 1942
WP(C).No.1998 OF 2020(Y)
PETITIONER:
REGIONAL CANCER CENTER,
MEDICAL COLLEGE P.O.,
THIRUVANANTHAPURAM-695011,
REPRESENTED BY ITS DIRECTOR,
DR. REKHA A. NAIR.
BY ADV. SRI.ATHUL SHAJI
RESPONDENTS:
1 KERALA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,
VAZHUTHACAUD,
THIRUVANANTHAPURAM,
REPRESENTED BY THE REGISTRAR, PIN-695001
2 DISTRICT CONSUMER DISPUTE REDRESSAL
COMMISSION,
VAZHUTHACAUD,
THIRUVANANTHAPURAM, PIN-695001
3 R. BAHULEYAN,
KAILAS, CUTCHERY WARD,
KOLLAM-13.
R3 BY ADV. SRI.ARUN BABU
R1-2 GOVERNMENT PLEADER SMT. DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 04-03-2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No.1998/2020
:2:
N. NAGARESH, J.
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W.P.(C) No.1998 of 2020
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Dated this the 4th day of March, 2021
JUDGMENT
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The petitioner, a fully Government owned Society
registered under the Travancore-Cochin Literary, Scientific
and Charitable Societies Registration Act, 1956, has filed this
writ petition seeking to quash Exts.P8, P10 and P11.
2. The petitioner states that it is an internationally
recognised medical centre providing state of the art facilities
for cancer diagnosis, treatment, palliation and rehabilitation.
It is a premier cancer care hospital and research centre in
India operating under the National Cancer Control
Programme of the Ministry of Health and Family Welfare,
Government of India. The petitioner formulated a number of
cancer care schemes for providing free cancer treatment to
W.P.(C) No.1998/2020
the members of the Scheme. The 3rd respondent joined in
"Cancer Care for Life Scheme" along with three of his family
members by paying a nominal amount of ₹1,700/-.
3. The 3rd respondent was afflicted with cancer and
availed free treatment from the petitioner. Chemotherapy
was done on the petitioner free of charge. However, the
petitioner had to be subjected to a specialised "Targetted
Therapy". The petitioner paid ₹4,40,466/- as cost of
medicine.
4. However, subsequently, the 3rd respondent
approached District Consumer Redressal Forum,
Thiruvananthapuram alleging deficiency in service on the
part of the petitioner. The District Forum passed Ext.P8
order dated 30.07.2015 directing the petitioner to reimburse
a sum of ₹4,40,466/-, being the cost of drugs for Targetted
Therapy, which is excluded from the purview of
reimbursement. The petitioner preferred Ext.P9 appeal
before the State Consumer Disputes Redressal Commission,
Thiruvananthapuram, invoking Section 15 of the Consumer
W.P.(C) No.1998/2020
Protection Act, 1986.
5. The State Commission dismissed the appeal filed
by the petitioner as per Ext.P10 judgment dated 09.10.2019.
Now, the petitioner has been served with a notice in an
execution petition filed by the 3rd respondent. The petitioner
challenges Ext.P8 order of the CDRF, Ext.P10 order of the
State Consumer Disputes Redressal Commission and
Ext.P11 notice to show-cause issued by the CDRF.
6. The contention of the petitioner is that the 3rd
respondent is beneficiary of a gratuitous and free service
offered by the petitioner under Ext.P1 Scheme. He is not a
consumer within the purview of the Consumer Protection Act.
Hence, the 1st respondent has no jurisdiction to entertain a
complaint for the alleged deficiency of service.
7. The petitioner states that Ext.P1 Scheme, in which
the 3rd respondent has joined, only provides for
reimbursement of money for cost of drugs of Chemotherapy.
Targetted Therapy is not covered under the Scheme. The 3rd
respondent was informed of the same before proceeding with
W.P.(C) No.1998/2020
the treatment. The Scheme only provides gratuitous and
free service to its members. Hence, the CDRF ought to have
dismissed the claim made by the 3rd respondent. The 3rd
respondent entered appearance and contested the writ
petition.
8. The learned counsel for the petitioner relied on a
judgment of the Apex Court in Indian Medical Association
v. V.P. Shantha and others [(1995) 6 SCC 651] and argued
that service rendered at a Government Hospital/Health
Centre/Dispensary where no charge whatsoever is made
from any person availing the services, is outside the purview
of the expression "service" as defined under Section 2(1)(o)
of the Consumer Protection Act, 1986. The learned counsel
argued that as the CDRF had no jurisdiction to entertain the
complaint filed by the 3rd respondent Ext.P8 is nullity and this
Court can declare the same as nullity.
9. The learned counsel appearing for the 3rd
respondent, on the other hand, submitted that the 3rd
respondent had joined the Scheme framed by the petitioner
W.P.(C) No.1998/2020
paying an amount of ₹1,700/-. The Scheme is in the nature
of medical insurance, though confined to cancer treatment.
The amount paid by the 3rd respondent constitutes
consideration for the service offered by the petitioner. The
petitioner therefore cannot now raise technical contentions
and argue that what is provided by them is free service.
10. Heard the learned counsel for the petitioner and
the learned counsel appearing for the 3rd respondent.
11. At the outset, it has to be noted that the orders
impugned by the petitioner are passed under the Consumer
Protection Act, 1986. The petitioner has an effective
alternate remedy against Ext.P10 order passed by the State
Consumer Disputes Redressal Commission, under Section
19 of the Consumer Protection Act. When such a remedy is
available, it will be improper for this Court to adjudicate upon
the legality of Exts.P8, P10 and P11.
12. The counsel for the petitioner would contend that
since the CDRF does not have jurisdiction to entertain the
complaint, this Court, in exercise of powers under Article 226
W.P.(C) No.1998/2020
of the Constitution of India, can interfere in the matter, in the
interest of justice. However, this Court finds that the
petitioner did not raise the issue of maintainability of the
complaint before the CDRF. Furthermore, the petitioner itself
filed Ext.P9 appeal before the State Commission invoking the
provisions of the Consumer Protection Act and suffered an
adverse order. Thereafter, the petitioner cannot be heard to
contend that the CDRF and the State Commission have no
jurisdiction and hence this Court should invoke writ
jurisdiction.
In view of the above, this Court finds no reason to
entertain this writ petition. The writ petition is therefore
dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/02.03.2021
W.P.(C) No.1998/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROSPECTUS OF THE
CANCER CARE FOR LIFE SCHEME OF THE
PETITIONER DATED NIL.
EXHIBIT P2 TRUE COPY OF A MEMBERSHIP CARD DATED
21/01/1994 ISSUED TO THE SPOUSE OF
THE PETITIONER UNDER EXT.P1 SCHEME.
EXHIBIT P3 TRUE COPY OF THE CONSENT FORM DATED
03/02/2006 SIGNED BY THE 3RD
RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE COMPLAINT DATED NIL
FILED BY THE 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT
DATED 23/07/2009 FILED BY THE
PETITIONER/OPPOSITE PARTY.
EXHIBIT P6 TRUE COPY OF THE AFFIDAVIT DATED
04/07/2013 IN LIEU OF CHIEF
EXAMINATION OF PW 1.
EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT DATED
28/05/2010 IN LIEU OF CHIEF
EXAMINATION OF DW 1.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED
30/07/2015 OF THE DISTRICT CONSUMER
DISPUTES REDRESSAL FORUM,
THIRUVANANTHAPURAM.
EXHIBIT P9 TRUE COPY OF THE APPEAL MEMORANDUM
DATED 09/09/2015 FILED BY THE
PETITIONER/APPELLANT.
W.P.(C) No.1998/2020
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED
09/10/2019 OF THE STATE CONSUMER
DISPUTES REDRESSAL FORUM,
THIRUVANANTHAPURAM.
EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE
DATED 28/11/2019 IN THE EXECUTION
APPLICATION FILED BY THE 3RD
RESPONDENT.
SR
