Regional Cancer Center, Medical College, Thiruvananthapuram v. Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram; District Consumer Disputes Redressal Commission, Thiruvananthapuram; R. Bahuleyan

## **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.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.1998 of 2020 ````````````````````````````````````````````````````````````` _Dated this the 4[th] day of March, 2021_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ 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 : 3 : the members of the Scheme. The 3[rd] 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 3[rd] 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 3[rd] 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 : 4 : 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 3[rd] 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 3[rd] 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 1[st] 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 3[rd] respondent has joined, only provides for reimbursement of money for cost of drugs of Chemotherapy. Targetted Therapy is not covered under the Scheme. The 3[rd] respondent was informed of the same before proceeding with W.P.(C) No.1998/2020 : 5 : 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 3[rd] respondent. The 3[rd] 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 3[rd] respondent Ext.P8 is nullity and this Court can declare the same as nullity. 9. The learned counsel appearing for the 3[rd] respondent, on the other hand, submitted that the 3[rd] respondent had joined the Scheme framed by the petitioner W.P.(C) No.1998/2020 : 6 : 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 3[rd] 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 3[rd] 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 : 7 : 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 : 8 : ## **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 : 9 : |**EXHIBIT P10**|**TRUE COPY OF THE JUDGMENT DATED**| |---|---| ||**09/10/2019 OF THE STATE CONSUMER**| ||**DISPUTES**<br>**REDRESSAL**<br>**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