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Equivalent Citation: II(1993)CPJ633(SY)

Equivalent Citation : II(1993 )CPJ 633 (SY )


C.D. Appeal No. 50 of 1991

Decided On: 15.12.1992

Appellants: Sukanti Behera

Respondent: Sashi Bhusan Rath and Ors.

Hon'ble Judges/Coram:
S.C. Mohapatra, J. (President) and J. Patnaik, Member

For Appellant/Petitioner/Plaintiff: K.N. Jena, Advocate


S.C. Mohapatra, J. (President)

1. Complainant is appellant against an order passed by the District Forum, Baiasore,

refusing to entertain the complaint on the ground that she is not a consumer. Case of
the complainant is that she wanted to medically terminate her pregnancy and went to
opposite party No. 1 who is a doctor in the Government hospital. Opposite party No. 1
refused to terminate the pregnancy although another doctor advised for medical
termination of the pregnancy. It is asserted that another doctor of the hospital came
forward to render the service to the complainant. However, on the table itself when all
preparations were made for operation to terminate the pregnancy, opposite party No.
1 obstructed such service to be rendered. Opposite party No. 1 stated his case denying
the liability. It is stated that this complaint had been filed at the instance of one
Manoranjan Pradhan, who claims to be the motivator since opposite party No. 1 found
some mal practice on Manoranjan and reported the same to the Chief District Medical
Officer. Complainant has examined three witnesses in support of her case and filed
some documents excepting one no other material has been produced by respondent
No. 1 to support his version. On consideration of these materials, the District Forum
has dismissed the complaint as not entertain able.

2. Finding of the District Forum that complainant is not a consumer as she has not paid
for the service to be rendered to her, does not appear to be the correct position of law.
Beneficiary of a service rendered for which the person rendering the service is paid for,
is also a consumer as defined under Section 2(1)(d) of the Consumer Protection Act.
State Government has paid the doctor (respondent No. 1) to render the service to the
people of Orissa who attend the hospital. Thus, the persons who are attending the
hospital for treatment and advice are the beneficiaries of the service rendered by the
doctor. If the employment of the doctor would have been personal service, the
question might have been different because it is the employer through the agency of
the employee rendering the service. In the present case, however, a doctor appointed
by the State Government stands on a different footing. His employment no doubt is a

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contract with the State Government. On employment, however, he acquires a status as
distinct from other employments. If the State Government would have given a
direction that in such cases no treatments would be given, the doctor would have been
helpless. But, no State Government would give a direction not to follow the scheme of
family planning which is a public policy at present. In fact, this is not the case stated
by the doctor. He has denied any such occurrence. In view of evidence of the
witnesses, especially one of whom is a doctor, we are inclined to hold that the doctor
(respondent No. 1) obstructed the medical termination of pregnancy of the
complainant even though she volunteered for the same.

3. Obstruction to the medical termination of pregnancy would not be a negligence in

rendering service. Merely because one doctor has advised termination of such
pregnency and another doctor was also prepared to operate the complainant, the view
taken by respondent No. 1 that there should be no termination, cannot be said to be
unreasonable. Better particulars ought to have been given for coming to a conclusion
that the view taken by respondent No. 1 was not reasonable. In that case only refusal
to medically terminate the pregnancy of the complainant might have been a negligence
to award compensation to the complainant.

4. In view of the aforesaid discussion, while not agreeing with the District Forum that
the complainant is not a consumer because she has not paid for the same, we come to
the conclusion that she is a beneficiary of the services of respondent No. 1 for which
payment is made to him by the State Government to render such service to the
complainant as well as others. It is not free of charges since the State Government has
paid for it. It goes without saying that the funds of the State Government are the funds
of the people of Orissa for which under the Constitution representatives have been
entrusted as trustees to carry on the executive administrative in accordance with the
Constitution. In such a case, it would not come within the scope of service free of
charges. Service rendered by a doctor to a patient is not a personal service.
Accordingly, it also cannot be excluded on that account from the definition of
service. However, on our finding that the view taken by respondent No. 1 cannot
be said to be unreasonable on the materials on record, we agree with the District
Forum that the complaint has no merit.

5. In result, appeal is dismissed. However, as has been observed by the District Forum
we reiterate that conduct of respondent No. 1 requires scrutiny by the authorities so
that the popular Government of the State is not ill-reputed for the high-handed action
of some officers who feel impugned to treat the people of the State in a manner which
is not envisaged under our Constitution.

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