A INDIRA NARAYANAN Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THE prayer in this writ petition is as follows :. . . to issue a writ of prohibition or any other appropriate writ, order or direction in the nature of a writ, prohibiting the State Consumer Disputes Redressal commission, Madras, the second respondent herein, from proceeding with the complaint given by the third respondent herein in O. P. No. 50 of 1992 taken on its file and pass.

(2.) THE petitioner, who is a medical practitioner has come before this court with this writ petition, when the third respondent filed O. P. No. 50 of 1992 before the State Consumer Disputes Redressal Commission. During June, 1988, it seems that the wife of the third respondent, Smt. Indira, was admitted in the Murari Hospital with labour pain. THE Murari Hospital , where the petitioner was working, was run by a society registered under the tamil Nadu Societies Registration Act. Since the wife of the third respondent did not deliver till late in the evening (on June 17, 198 8 ), the petitioner thought of applying forceps and the child was delivered at 9. 50 p. m. by the use of forceps. It was then found out that the child had its left eye lying outside. It seems that the petitioner immediately dressed the eye and informed the third respondent's mother-in-law, that subsequently, the petitioner wanted to have the paediatrician retained with the hospital to examine the child, but the third respondent's relations who arrived on June 18, 1988, were in a hurry to take the child to the Children's Hospital, Egmore, madras, that the third respondent through his counsel sent a notice dated June 13, 1991, alleging that the injury to the child was due to the negligence of the petitioner and that the child had been operated at the Children's Hospital, egmore, Madras, and that the child could not speak or walk after three years and as such a sum of Rs. 1, 10, 000 was demanded. It is further seen that the petitioner has sent a reply on July 3, 1991, to the said notice denying the allegations of negligence and wrong handling, that in view of the above situation, the third respondent had filed a complaint in O. P. No. 50 of 1992 against the petitioner before the State Consumer Disputes Redressal Commission, madras, claiming a sum of Rs. 1, 10, 000 as damages for the alleged injury caused to his child in Murari Hospital, at the time of delivery and that when the summons was issued in that O. P. No. 50 of 1992 to the petitioner, the petitioner has come to this court for the aforesaid relief. It is alleged in the affidavit filed in support of the above writ petition that the third respondent is not a "consumer" as defined by the Consumer Protection Act, 1986 (hereinafter referred to as "the Act"), that the said complaint (O. P. No. 50 of 1992) has been filed more than three years after the date of the alleged negligence on the part of the petitioner, that "professional service" is "personal service" and is exempted from the purview of the Act, that the Act does not define the words "personal service", that its meaning has got to be gathered as ordinarily understood, that section 16 of the Act provides for composition of the State commission, that section 16 of the Act does not provide for appointment of persons qualified in medicine, or experts in medical practice, that the services rendered by a medical practitioner are of a personal nature and are excluded from the purview of the Act, that, therefore, the second respondent has no jurisdiction to entertain the complaint, that there is no privity of contract between the petitioner and the third respondent, that the third respondent did not avail of any services from the petitioner, that, therefore, the complaint before the second respondent is not maintainable in law, that the above complaint (O. P. No. 50 of 1992) has been filed after more than 3 1/2 years from the date of the alleged negligence on the part of the petitioner, that there is no deficiency in the service rendered by the petitioner, that the professional work done by the petitioner is not coming within the purview of the definition of "service" under the Act and that the medical experts have not been included under section 16 of the Act for any adjudication by the consumer forum.