REGIONAL CANCER CENTRE Vs. R. BAHULEYAN

JUDGEMENT

(1.) This revision petition (RP) has been filed by the petitioner against the order dtd. 9/10/2019 of State Consumer Disputes Redressal Commission, Kerala Thiruvananthapuram (hereinafter referred to as the State Commission) in Appeal No. 728 of 2015 against the order dtd. 30/7/2015 of District Consumer Disputes Redressal Forum, Thiruvananthapuram, Kerala (hereinafter referred to as the District Commission) in CC No. 145 of 2009. The petitioner viz Regional Cancer Centre Thiruvananthapuram, is a state owned society formed jointly by Government of Kerala and Government of India running a Cancer Care Hospital and Research Centre. The District Forum, Thiruvananthapuram has allowed the complaint filed by the Respondent herein and the Petitioner herein was directed to pay an amount of ?4,40,466/- as reimbursement for the cost of medicines used in the treatment. The Petitioner had contented before the District Forum that in addition to chemotherapy, targeted therapy (biotherapy) with Mabthera, which was a new addition to the cancer treatment, was also given. The said new treatment (biotherapy) with mebthera was not covered by the terms of the scheme to which the respondent had become a member, the respondent had agreed to abide by the rules and conditions laid down in the prospectus of the scheme apart from agreeing to accept any decision of the society as final regarding membership, facilities and such other aspects relating to his treatment. The District Forum came to the conclusion that action of the petitioner herein in recovering from the respondent the cost of the medicines provided to him amounted to deficiency in service and therefore, directed the cost thereof to be reimbursed to the respondent. The State Commission in appeal found no infirmity in the order passed by the District Forum. Aggrieved, the petitioner filed writ petition in the Hon'ble High Court of Kerala, contending that respondent herein is beneficiary of a gratuitous and free service offered by the petitioner under the CCL and hence is not a consumer within the preview of Consumer Protection Act, 1986. The said petition was dismissed by the Hon'ble single judge of the High Court holding that petitioner herein has an effective alternate remedy against the judgement passed by the State Commission. Petitioner herein again filed Appeal before the division bench of the Hon'ble High Court. Hon'ble High Court observing that there is a remedy by way of Revision to the National Commission, declined to exercise jurisdiction under article 226 of the constitution, leaving it open to the petitioner herein to approach the National Commission, if so advised.

(2.) Office has submitted report that the revision has been filed with delay of 617 days. The revisionist has filed IA/2574/2021 for condoning the delay in filing the revision. It has been stated that order of State Consumer Dispute Redressal Commission dtd. 9/10/2019 was challenged by the petitioner in Writ Petition (C) No.1998 of 2020, which was dismissed by the order dtd. 4/3/2021 on the ground of alternative remedy. Order dtd. 4/3/2021 was challenged in Writ Appeal No.618 of 2021, which was dismissed by the Division Bench on 13/8/2021, then this revision was filed on 22/10/2021. Revisionist was bona fide litigating before the High Court which ultimately refused to interfere in the matter on the ground of alternative remedy. As such, the period taken for prosecuting the Writ Petition as well as Writ Appeal is liable to be condoned. Cause shown is sufficient. IA/2574/2021 is allowed, delay in filing the revision is condoned.

(3.) In the RP, the petitioner has by and large reiterated his contentions which were raised before the District Forum as well as State Commission. No new facts or law points or issues have been raised in the RP. It has been argued by the petitioner that the respondent had very clearly agreed to the condition that he would abide by the rules and conditions laid down in the prospectus for the cancer care for life scheme offered by regional cancer centre society Trivandrum and that he agreed to accept any decision of the society as final regarding membership, facilities and such other things related to his treatment. The membership to the scheme is subject to such other rules, conditions formulated by the petitioner cancer care institution and it is also subject to decisions taken by the petitioner cancer institution from time to time. The scheme does not cover all expenses relating to the diagnosis and treatment of cancer. The cancer care for life scheme will not include all the treatments associated with cancer treatment. Including all the treatment processes within the scheme will not be practical and the same was not contemplated during the formulation of the scheme. The scheme only provided reimbursement of money for the cost of drugs of chemotherapy. The targeted therapy is not covered under the scheme and the respondent was also made aware of the same before proceeding with the treatment, which he accepted without any demur. The real intention of the scheme was to have wider access to different Sec. of people in attaining affordable cancer treatment. Such schemes are meant to include basic treatment and drugs.