Full Judgment Text
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CASE NO.:
Appeal (civil) 4965 of 2000
PETITIONER:
Kishore Lal
RESPONDENT:
Chairman, Employees State Insurance Corporation
DATE OF JUDGMENT: 08/05/2007
BENCH:
B.N. AGRAWAL, P.P. NAOLEKAR & DALVEER BHANDARI
JUDGMENT:
J U D G M E N T
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 employee’s/appellant’s 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 appellant’s 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 appellant’s 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
‘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 ‘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
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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.
4. From the decisions rendered by the District Forum, the
State Commission and the National Commission, and the questions
raised by the appellant and the respondent, the question that
falls for our consideration is two-fold:
1. 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?
2. 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?
5. It is contended by Shri Dayan Krishnan, the learned counsel
for the appellant, that in the case of Indian Medical Association
(supra) although it was held that the free medical service was not
covered under the CP Act, the very same judgment in conclusion
No. (11) in para 55 includes any medical service given under the
scheme of insurance within the scope of the CP Act and,
therefore, the claim made by the appellant squarely falls within
the jurisdiction of the consumer forum, the appellant being a
consumer and the respondent’s dispensary having rendered a
service to him for consideration.
6. At this stage, it would be appropriate to refer to certain
statutory provisions of the Consumer Protection Act, 1986.
‘Consumer’ is defined in clause (d) and ‘service’ in clause (o) of
Section 2(1) of the CP Act as under:
"2. Definitions.- (1) In this Act, unless the context
otherwise requires, -
xxx xxx xxx
(d) "consumer" means any person who, -
(i) buys any goods for consideration which has
been paid or promised or partly paid and partly
promised, or under any system of deferred
payment and includes any user of such goods
other than the person who buys such goods for
consideration paid or promised or partly paid or
partly promised, or under any system of
deferred payment, when such use is made with
the approval of such person, but does not include
a person who obtains such goods for resale or for
any commercial purpose; or
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(ii) hires or avails of 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 or avails of 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 person but does not include a person
who avails of such services for any commercial
purpose;
Explanation.- For the purposes of this
clause, "commercial purpose" does not include use
by a person of goods bought and used by him and
services availed by him exclusively for the
purposes of earning his livelihood by means of
self-employment;"
xxx xxx xxx
"(o) "Service" means service of any description which
is made available to potential users and includes, but
not limited to, the provision of facilities in connection
with banking, financing, insurance, transport,
processing, supply of electrical or other energy, board
or lodging or both, housing construction,
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;"
7. The definition of ‘consumer’ in the CP Act is apparently
wide enough and encompasses within its fold not only the goods
but also the services, bought or hired, for consideration. Such
consideration may be paid or promised or partly paid or partly
promised under any system of deferred payment and includes any
beneficiary of such person other than the person who hires the
service for consideration. The Act being a beneficial legislation,
aims to protect the interests of a consumer as understood in the
business parlance. The important characteristics of goods and
services under the Act are that they are supplied at a price to
cover the costs and generate profit or income for the seller of
goods or provider of services. The comprehensive definition aims
at covering every man who pays money as the price or cost of
goods and services. However, by virtue of the definition, the
person who obtains goods for resale or for any commercial
purpose is excluded, but the services hired for consideration
even for commercial purposes are not excluded. The term
‘service’ unambiguously indicates in the definition that the
definition is not restrictive and includes within its ambit such
services as well which are specified therein. However, a service
hired or availed, which does not cost anything or can be said free
of charge, or under a contract of personal service, is not included
within the meaning of ‘service’ for the purposes of the CP Act.
8. A 3-Judge Bench of this Court in Indian Medical
Association (supra) has extensively considered the provisions of
the CP Act and particularly what shall be a ‘service’ within the
meaning of Section 2(1)(o) of the said Act. The Court was
considering whether the service rendered by the doctors would
fall within the purview of the CP Act, it being a service rendered
for the charges; and whether the patients, who are treated by
the doctors, are ‘consumers’ as defined in Section 2(1)(d) of the
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CP Act. The Court said that the definition of ‘service’ in
Section 2(1)(o) can be split into three parts: the main part, the
inclusionary part and the exclusionary part. The main part is
explanatory in nature and defines service to mean service of any
description which is made available to the potential users. The
inclusionary part expressly includes the provision of facilities in
connection with banking, financing, insurance, transport,
processing, supply of electrical or other energy, board or lodging
or both, housing construction, entertainment, amusement or the
purveying of news or other information, whereas the exclusionary
part excludes rendering of any service free of charge or under a
contract of personal service. The exclusionary part in Section
2(1)(o) excludes from the main part service rendered (i) free of
charge; or (ii) under a contract of personal service. The
expression ’contract of personal service’ in the exclusionary part
of Section 2(1)(o) must be construed as excluding the services
rendered by an employee to his employer under the contract of
personal service from the ambit of the expression ‘service’.
There is a distinction between a ’contract of service’ and a
‘contract for service’. A ‘contract for service’ implies a
contract whereby one party undertakes to render service e.g.
professional or technical service, to or for another in the
performance of which he is not subject to detailed direction and
control and exercises professional or technical skill and uses his
own knowledge and discretion, whereas a ‘contract of service’
implies relationship of master and servant and involves an
obligation to obey orders in the work to be performed and as to
its mode and manner of performance. A contract of service is
excluded for consideration from the ambit of definition of
‘service’ in the CP Act, whereas a contract for service is
included. As regards service rendered free of charge under
Section 2(1)(o), the Court held that the medical practitioners,
government hospitals/nursing homes and private hospitals/nursing
homes, who render service without any charge whatsoever to
every person availing of the service would not fall within the
ambit of ‘service’ under Section 2(1)(o) of the Act. The payment
of a token amount for registration purposes only would, however,
not alter the position in respect of such doctors and hospitals,
but the service rendered for which charges are required to be
paid by everybody availing the service would fall within the
purview of the expression ‘service’ as defined in Section 2(1)(o)
of the Act. The Court held that the relationship between a
medical practitioner and a patient carries within it a certain
degree of mutual confidence and trust and, therefore, the
service rendered by the medical practitioners can be regarded as
a service of personal nature, but since there is no relationship of
master and servant between the doctor and the patient the
contract between the medical practitioner and his patient cannot
be treated as a contract of personal service and it is a contract
for service and the service rendered by the medical practitioner
to his patient under such contract is not covered by the
exclusionary part of the definition of ‘service’ contained in
Section 2(1)(o) of the CP Act. In paragraph 55 of the judgment,
the Court summarized its conclusions. We are really concerned in
this case with conclusions Nos. (9), (10), (11) and (12). Conclusion
No. (9) is in regard to the service rendered at a government
hospital/health center/dispensary where no charges whatsoever
are made from any person and they are given free service, which
would not be a service under Section 2(1)(o) of the CP Act.
Conclusion No. (10) lays down that where the service is rendered
at a government hospital/health center/dispensary on payment of
charges and also rendered free of charge, then it would fall
within the ambit of the expression ‘service’. Conclusion No. (11)
says that if a patient or his relation availed of the service of a
medical practitioner or hospital/nursing home where the charges
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for consultation, diagnosis and medical treatment are borne by
the insurance company, then such service would fall within the
ambit of service. Similarly, under conclusion No. (12), where as a
part of the conditions of service the employer bears the
expenses of medical treatment of an employee and his family
members dependent on him, then the service rendered by a
medical practitioner or a hospital/nursing home would not be
treated to be free of charge and would constitute ‘service’ under
Section 2(1)(o).
9. In the case of Laxman Thamappa Kotgiri v. G.M. Central
Railway & 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. Thereafter, appeal was preferred to this Court.
Allowing the appeal, this Court in paras 6 and 7 has held as under:
"6. There is no dispute that the Hospital in question
has been set up for the purpose of granting medical
treatment to the Railway employees and their
dependents. Apart from the nominal charges which
are taken from such an employee, this facility is part
of the service conditions of the Railway employees.
V.P. Shantha’s case has made a distinction between
non-Governmental hospital/nursing home where no
charge whatsoever was made from any person availing
of the service and all patients are given free service
(vide para 55(6) at page 681) and services rendered at
Government Hospital/Health Centre/Dispensary where
no charge whatsoever is made from any person availing
of the services and all patients are given free service
(vide para 55(9)) on the hand and service rendered to
an employee and his family members by a medical
practitioner or a hospital/nursing home which are
given as part of the conditions of service to the
employee and where the employer bears expenses of
the medical treatment of the employee and his family
members, (paragraph 55(12) on the other. In the first
two circumstances, it would not be free service within
the definition of the Sec. 2(1)(o) of the Act. In the
third circumstance it would be.
7. Since it is not in dispute that the medical
treatment in the said Hospital is given to employees
like the appellant and his family members is part of
the conditions of service of the appellant and that the
Hospital is run and subsidised by the appellants
employer, namely, the Union of India, the appellant’s
case would fall within the parameters laid down in
paragraph 55(12) of the judgment in V.P. Shantha’s
case and not within the parameters of either para
55(6) or para 55(9) of the said case."
10. Further, the appellant has brought to our notice a judgment
of this Court in the case of Regional Provident Fund
Commissioner v. Shiv Kumar Joshi, (2000) 1 SCC 98, wherein the
Employees’ Provident Fund Scheme, 1952, framed under Section 5
of the Employees’ Provident Fund Act came for consideration of
the Court and the Court held in para 11 as under:
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" \005
A perusal of the Scheme unambiguously shows that it
is for consideration which is applicable to all those
factories and establishments covered under the Act
and the Scheme who are required to become a member
of the fund under the Scheme. \005 The contribution of
the employee has to be equal to the contribution
payable by the employer in respect of such employee.
The words "in respect of" are significant as they
indicate the liability of the employer to pay his part of
the contribution in consideration of the employee
working with him. But for the employment of the
employee there is no obligation upon the employer to
pay his part of the contribution to the Scheme. The
administrative charges, as required to be paid under
Para 30 of the Scheme are also paid for consideration
of the employee being the member of the Scheme and
for the services rendered under the Scheme. It is
immaterial as to whether such charges are deducted
actually from the wages of the employee or paid by his
employer in respect of the member-employee of the
Scheme working for such employer. \005 It cannot be
held that even though the employee is a member of
the Scheme, yet the employer would only be deemed
to be a consumer for having made payments of the
administrative charges. \005.."
11. It is contended by the learned counsel for the appellant
that the appellant is a member of the insurance scheme applicable
in the establishment where he is serving and, therefore, the
insurance policy which takes care of the medical treatment of the
appellant as well as his dependents which is given in the ESI
hospital/dispensary would be a service falling within the purview
of Section 2(1)(o) of the CP Act. To appreciate this contention of
the learned counsel, it would be necessary to consider the
insurance scheme which is applicable in the establishment under
various provisions of the ESI Act.
12. It is an admitted fact that the appellant’s wife was given
treatment in the ESI dispensary at Sonepat. Under Section 38
of the ESI Act, all employees in a factory or establishment where
the Act applies are required to be insured under the insurance
scheme. Section 39 speaks of the contribution which is required
to be paid to the Corporation for the insurance scheme which
shall comprise the contribution payable by the employer and the
contribution payable by the employee. The contribution is
required to be paid at such rates as may be prescribed by the
Central Government. By virtue of Section 40, the principal
employer is liable to pay the contributions, both the employer’s
contribution and the employee’s contribution, in the first instance
of the employees directly employed by him or by or through an
immediate employer. Sub-section (2) of Section 40 authorises
the principal employer to recover the contribution made for the
employee by deducting the same from the wages of the employee.
Chapter V of the ESI Act deals with benefits. Sub-section (1)
of Section 46 falling within this Chapter contemplates that the
insured persons, their dependents and the persons mentioned
under the Section shall be entitled to the various benefits
referred to in clauses (a) to (f). Clause (e) reads: "medical
treatment for an attendance on insured persons (hereinafter
referred to as medical benefit)". Section 56 is a specific Section
which has reference to the medical benefits available to an
insured person or to his family member whose condition requires
medical treatment and attendance and they shall be entitled to
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receive medical benefit. Under Section 59, the Corporation is
called upon with the approval of the State Government to
establish and maintain in a State such hospitals, dispensaries and
other medical and surgical services as it may think fit for the
benefit of insured persons and, where such medical benefit is
extended, to their families.
13. On a plain reading of the aforesaid provisions of the ESI
Act, it is apparent that the Corporation is required to maintain
and establish the hospitals and dispensaries and to provide
medical and surgical services. 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
and, therefore, the principle enunciated in conclusion No. (11) in
para 55 in the case of Indian Medical Association (supra) will
squarely apply to the facts of the present case, where the
appellant has availed the services under the insurance policy
which is compulsory under the statute. 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. It cannot be said to be a free service rendered
by the ESI hospital/dispensary.
14. 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, whereunder 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. We are of the opinion that 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.
15. We shall now proceed to consider the second question
raised by Shri Vijay K. Mehta, the learned counsel for the
respondent that by virtue of Section 74 read with Section 75,
and particularly Section 75(e), of the ESI Act, the claim made by
the appellant would exclusively fall for decision within the
jurisdiction of the Employees’ Insurance Court and that being the
position the consumer forum has no jurisdiction to adjudicate
upon the issue.
16. Relevant portions of Sections 74 and 75 of the ESI Act
are reproduced below:
"74. Constitution of Employees’ Insurance Court.-
(1) The State Government shall, by notification in the
Official Gazette, constitute an Employees’ Insurance
Court of such local area as may be specified in the
notification.
xxx xxx xxx"
"75. Matters to be decided by Employees’ Insurance
Court.- (1) If any question or dispute arises as to \026
(a) whether any person is an employee within the
meaning of this Act or whether he is liable to pay
the employee’s contribution, or
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(b) the rate of wages or average daily wages of
an employee for the purpose of this Act, or
(c) the rate of contribution payable by the
principal employer in respect of any employee, or
(d) the person who is or was the principal
employer in respect of any employee, or
(e) the right of any person to any benefit and as
to the amount and duration thereof, or
(ee) any direction issued by the Corporation
under Section 55-A on a review of any payment
of dependants’ benefits, or,
(f) [Omitted], or
(g) any other matter which is in dispute between
a principal employer and the Corporation, or
between a principal employer and an immediate
employer, or between a person and the
Corporation or between an employee and a
principal or immediate employer, in respect of
any contribution or benefit or other dues payable
or recoverable under this Act, or any other
matter required to be or which may be decided
by the Employees’ Insurance Court under this
Act,
such question or dispute subject to the provisions of
sub-section (2-A) shall be decided by the Employees’
Insurance Court in accordance with the provisions of
this Act.
(2) Subject to the provisions of sub-section (2-
A), the following claims shall be decided by the
Employees’ Insurance Court, namely, -
(a) claim for the recovery of contributions from
the principal employer;
(b) claim by a principal employer to recover
contributions from any immediate employer;
(c) (Omitted);
(d) claim against a principal employer under
Section 68;
(e) claim under Section 70 for the recovery of
the value or amount of the benefits received by
a person when he is not lawfully entitled thereto;
and
(f) any claim for the recovery of any benefit
admissible under this Act.
xxx xxx xxx
(3). No Civil Court shall have jurisdiction to
decide or deal with any question or dispute as
aforesaid or to adjudicate on any liability which by or
under this Act is to be decided by a medical board, or
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by a medical appeal tribunal or by the Employees’
Insurance Court."
17. It has been held in numerous cases of this Court that the
jurisdiction of a consumer forum has to be construed liberally so
as to bring many cases under it for their speedy disposal. In the
case of M/s. Spring Meadows Hospital and Another v. Harjol
Ahluwalia and Another, AIR 1998 SC 1801, it was held that the
CP Act creates a framework for speedy disposal of consumer
disputes and an attempt has been made to remove the existing
evils of the ordinary court system. The Act being a beneficial
legislation should receive a liberal construction. In State of
Karnataka v. Vishwabarathi House Building Co-op. Society and
Others, AIR 2003 SC 1043, the Court speaking on the
jurisdiction of the consumer fora held that the provisions of the
said Act are required to be interpreted as broadly as possible and
the fora under the CP Act have jurisdiction to entertain a
complaint despite the fact that other fora/courts would also have
jurisdiction to adjudicate upon the lis. These judgments have
been cited with approval in paras 16 and 17 of the judgment in
Secretary, Thirumurugan Cooperative Agricultural Credit
Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend
of the decisions of this Court is that the jurisdiction of the
consumer forum should not and would not be curtailed unless
there is an express provision prohibiting the consumer forum to
take up the matter which falls within the jurisdiction of civil
court or any other forum as established under some enactment.
The Court had gone to the extent of saying that if two different
fora have jurisdiction to entertain the dispute in regard to the
same subject, the jurisdiction of the consumer forum would not
be barred and the power of the consumer forum to adjudicate
upon the dispute could not be negated.
18. The submission of the learned counsel for the respondent
is that the claim made by the appellant before the consumer
forum raises a dispute in regard to damages for negligence of
doctors in the ESI hospital/dispensary and would tantamount to
claiming benefit and the amount under the ESI Act provisions and
would fall within clause (e) of Section 75(1) and, therefore, it is
the Employees’ Insurance Court alone which has the jurisdiction
to decide it. We are afraid that we cannot agree with the
submission made by the learned counsel. Section 75 provides for
the subjects on which the jurisdiction shall be exercised by the
Employees’ Insurance Court. Clause (e) of Section 75(1) gives
power to the Employees’ Insurance Court to adjudicate upon the
dispute of the right of any person to any benefit and as to the
amount and duration thereof. The benefit which has been
referred to, has a reference to the benefits under the Act, i.e.,
the ESI Act. The Employees’ State Insurance (Central) Rules,
1950 (hereinafter referred to as "the Rules") have been framed
in exercise of the powers under Section 95 of the ESI Act. Rule
56 provides for maternity benefits, Rule 57 for disablement
benefits, Rule 58 for dependents’ benefits, Rule 60 for medical
benefits to insured person who ceases to be in an insurable
employment on account of permanent disablement and Rule 61 for
medical benefits to retired insured persons. Thus, these are the
benefits which are provided under the Rules to the employees and
the ex-employees for which claim can be made in the Employees’
Insurance Court. The appellant’s claim has no relation to any of
the benefits which are provided in the Rules for which the claim
can be made in the Employees’ Insurance Court. The appellant’s
claim is for damages for the negligence on the part of the ESI
hospital/dispensary and the doctors working therein.
19. A bare perusal of the provisions of clauses (a) to (g) of
Section 75(1) clearly shows that it does not include claim for
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damages for medical negligence, like the present case which we
are dealing with. Although the question does not directly arise
before us, we shall consider what in the ordinary course shall
constitute negligence.
20. This Court has considered the principles of the law on
negligence in Jacob Mathew v. State of Punjab and Another,
(2005) 6 SCC 1. The jurisprudential concept of negligence defies
any precise definition. Eminent jurists and leading judgments
have assigned various meanings to negligence. The concept as has
been acceptable to Indian jurisprudential thought is well-stated
in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by
Justice G.P. Singh). It is stated (at pp. 441-442) :
"Negligence is the breach of a duty caused by the
omission to do something which a reasonable man,
guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man
would not do. Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a
person to whom the defendant owes the duty of
observing ordinary care and skill, by which neglect the
plaintiff has suffered injury to his person or property
\005. the definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the
part of the party complained of towards the party
complaining the former’s conduct within the scope of
the duty; (2) breach of the said duty; and (3)
consequential damage. Cause of action for negligence
arises only when damage occurs; for, damage is a
necessary ingredient of this tort."
Cause of action for negligence arises only when damage occurs
and thus the claimant has to satisfy the court on the evidence
that three ingredients of negligence, namely, (a) existence of
duty to take care; (b) failure to attain that standard of care; and
(c) damage suffered on account of breach of duty, are present
for the defendant to be held liable for negligence. Therefore,
the claimant has to satisfy these ingredients before he can claim
damages for medical negligence of the doctors and that could not
be a question which could be adjudicated upon by the Employees’
Insurance Courts which have been given specific powers of the
issues, which they can adjudicate and decide. Claim for damages
for negligence of the doctors or the ESI hospital/dispensary is
clearly beyond the jurisdictional power of the Employees’
Insurance Court. An Employees’ Insurance Court has jurisdiction
to decide certain claims which fall under sub-section (2) of
Section 75 of the ESI Act. 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.
21. Having considered all these aspects, we are of the view
that the appellant is a consumer within the ambit of Section
2(1)(d) of the Consumer Protection Act, 1986 and the medical
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service rendered in the ESI hospital/dispensary by the
respondent Corporation falls within the ambit of Section 2(1)(o)
of the Consumer Protection Act and, therefore, the consumer
forum has jurisdiction to adjudicate upon the case of the
appellant. We further hold that the jurisdiction of the consumer
forum is not ousted by virtue of sub-section (1) or (2) or (3) of
Section 75 of the Employees’ State Insurance Act, 1948.
22. For the aforesaid reasons, the appeal is allowed. The
impugned order is set aside and the matter is remitted back to
the District Consumer Disputes Redressal Forum, Sonepat, for
decision in accordance with law laid down herein.