Regional Cancer Center, Thiruvananthapuram v. Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943** **WA NO. 618 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 1998/2020 OF HIGH COURT OF** ## **KERALA, ERNAKULAM** ## **APPELLANT/PETITIONER:** ## **REGIONAL CANCER CENTER** **MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011, REPRESENTED BY ITS DIRECTOR, DR.REKHA A.NAIR.** ## **BY ADV ATHUL SHAJI** ## **RESPONDENTS/RESPONDENTS:** - **1 KERALA STATE CONSUMER DISPUTE REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY THE REGISTRAR.** - **2 DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM.** - **3 R.BAHULEYAN, KAILAS, CUTCHERY WARD, KOLLAM-13.** ## **SR.G.P-SMT.K.R.DEEPA** **SRI.ARUN BABU** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** - **30.6.2021, THE COURT ON 13.8.2021 DELIVERED THE FOLLOWING:** WA 618-2021 2 ## **"C.R"** ## _Murali Purushothaman, J._ The appellant, Regional Cancer Center (RCC), Thiruvananthapuram, a State owned Society running a cancer care hospital and research center states that they have formulated a series of cancer care schemes to provide cancer treatment free of cost to all who join the scheme. The 3[rd] respondent joined in one such scheme namely, 'Cancer Care for Life' (CCL) along with three of his family members in the year 1994 by paying a membership fee of Rs.1,700/-. Being diagnosed with cancer, the 3[rd] respondent reported to the appellant on 03.02.2006 with a referral letter from a hospital at Kottayam and availed treatment under the CCL. Appellant states that, at the RCC, Chemotherapy treatment was provided to the 3[rd] respondent, free of charge. However, the 3[rd] respondent had to be subjected to a specialized 'Targeted Therapy' in addition to regular Chemotherapy treatment and he paid an amount of Rs.4,40,466/- to the appellant being the cost of the medicine 'Mabthera' for 'Targeted Therapy' and pay ward charges. 2. Alleging deficiency in service on the part of the appellant, the WA 618-2021 3 3[rd] respondent filed Ext.P4 complaint before the 2[nd] respondent District Consumer Disputes Redressal Forum, Thiruvananthapuram (CDRF), for directing the RCC to refund the amount of Rs.4,40,466/collected from the 3[rd] respondent and for compensation. The 3[rd] respondent contended that he is a consumer and the appellant was bound to provide free treatment under the CCL. 3. Before the CDRF, the appellant contested the claim on merits and contended that the 'Targeted Therapy' is not covered under the CCL and the 3[rd] respondent is not entitled for the reimbursement of the cost of the medicine 'Mabthera' and pay ward charges and the appellant has not committed any deficiency in service. 4. The CDRF, by Ext.P8 order dated 30.07.2015, found deficiency of service on the part of the appellant and directed the appellant to reimburse a sum of Rs.4,40,466/-, being the cost of drugs for 'Targeted Therapy'. However, the claim for compensation was not awarded. 5. Aggrieved by Ext.P8 order of the CDRF, the appellant preferred Ext.P9 appeal before the 1[st] respondent Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram WA 618-2021 4 (State Commission), invoking Section 15 of the Consumer Protection Act, 1986. The State Commission dismissed the appeal filed by the appellant as per Ext.P10 judgment dated 09.10.2019. The 3[rd] respondent filed application for enforcement of the above orders and the CDRF has issued Ext. P11 notice to show cause thereon. 6. Challenging Ext.P8 order of the CDRF, Ext.P10 order of the State Commission and Ext.P11 notice of the CDRF in the Execution Petition, the appellant filed W.P.(C) No.1998/2020, invoking the jurisdiction of this Court under Article 226 of the Constitution of India. In the writ petition, it is contended by the petitioner/appellant that the 3[rd] respondent is the beneficiary of a gratuitous and free service offered by the appellant under the CCL and he is not a consumer within the purview of the Consumer Protection Act, 1986 and therefore, the CDRF has no jurisdiction to entertain Ext.P4 complaint for the alleged deficiency of service. 7. The learned Single Judge dismissed the writ petition holding that the appellant has an effective alternative remedy against Ext.P10 judgment passed by the State Commission under Section 19 of the Consumer Protection Act, 1986. The contention of the appellant that WA 618-2021 5 since the CDRF has no jurisdiction to entertain Ext. P4 complaint, this Court, in exercise of powers under Article 226 of the Constitution can interfere in the matter, was rejected by the learned Single Judge by observing that the appellant did not raise the issue of maintainability of Ext.P4 complaint before the CDRF and that the appellant itself filed Ext.P9 appeal before the State Commission invoking the provisions of the Consumer Protection Act, 1986 and suffered an adverse order. It is against the judgment of the learned Single Judge dismissing the writ petition, the above writ appeal is preferred by the appellant. 8. We have heard Sri. Anwin John Antony, the learned Counsel for the appellant, Smt. K.R.Deepa, the learned Senior Government Pleader for respondents 1 and 2 and Sri. Arun Babu, the learned counsel for the 3[rd] respondent . 9. According to the appellant, it has already exhausted all the effective alternative remedies by way of statutory appeals as provided under the Consumer Protection Act, 1986 and no further avenues for statutory appeal are available to the appellant and therefore, the learned single Judge ought not to have dismissed the writ petition on WA 618-2021 6 the ground of alternative remedy. It is also contended that, even if no objection is raised by the appellant to the maintainability of the complaint before the CDRF, that by itself will not confer automatic jurisdiction to the forum to entertain the complaint. According to the appellant, Exts.P8 and P10 orders are nullity and therefore, the learned Single Judge ought to have exercised jurisdiction under Article 226 of the Constitution and declared those orders as nullity. The learned counsel for the appellant took us to the definition of 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986 and also relied on the decision of the Apex Court in _**Indian Medical Association v**_ **.** _**V.P.Shantha and Others [1995(6) SCC 651]**_ to contend that service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression 'service' as defined in S.2(1) (o) of the Act and that the payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. The counsel for the appellant submitted that since the 3[rd] respondent is not a consumer under the purview of WA 618-2021 7 the Consumer Protection Act, 1986, the orders of the CDRF and State Commission are liable to be set aside. 10. The object of Consumer Protection Act, 1986 is to promote the cause of the consumers and to provide for an effective and complete mechanism for redressal of the consumers related grievances at the District, State and Central levels through quasijudicial bodies. Section 9 of the Consumer Protection Act, 1986 deals with establishment of Consumer Disputes Redressal Agencies and clause (a) of section 9 provides for establishment of Consumer Disputes Redressal Forum to be known as the “District Forum” at the district level, clause (b) of section 9 provides for establishment of Consumer Disputes Redressal Commission to be known as “State Commission”and clause (c) of section 9 provides for establishment of National Consumer Disputes Redressal Commission known as “National Commission”. Section 11 of the Consumer Protection Act, 1986 deals with the jurisdiction of the District Forum and provides that the District Forum has jurisdiction to entertain complaints where the value of goods or services and compensation, if any, claimed exceeds rupees twenty lakhs. WA 618-2021 8 11. Section 15 of the Consumer Protection Act, 1986 provides for appeal against the order of CDRF to the State Commission and section 17 deals with the jurisdiction of the State Commission. The said provisions are reproduced hereunder:- 15. **Appeal .--** Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed: Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the District Forum, shall be entertained by the State Commission unless the appellant has deposited in the prescribed manner fifty per cent. of that amount or twenty-five thousand rupees, whichever is less. 17. **Jurisdiction of the State Commission.-** Subject to the other provisions of this Act, the State Commission shall have jurisdiction- (a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and (ii) appeals against the orders of any District Forum within the State; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so WA 618-2021 9 vested or has acted in exercise of its jurisdiction illegally or with material irregularity. **==> picture [121 x 15] intentionally omitted <==** Thus, the State Commission has, (i) original jurisdiction to entertain complaints where the value of goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore, (ii) appellate jurisdiction against the orders of District Forum and (iii) revisional jurisdiction over the District Forum in any consumer dispute pending or decided by the District Forum which is challenged on ground of lack or excess of jurisdiction. 12. Section 19 of the Consumer Protection Act, 1986 provides for appeal against the order of the State Commission to the National Commission and section 21 provides for jurisdiction of the National Commission. The said provisions are reproduced hereunder:- 19. **Appeals.-** Any person aggrieved by an order made by the State Commission in exercise of its powers - conferred by sub clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed: Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: WA 618-2021 10 Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent of the amount or rupees thirty-five thousand, which ever is less. 21. **Jurisdiction of the National Commission.-** Subject to the other provisions of this Act, the National Commission shall have jurisdiction- (a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore; and (ii) appeals against the orders of any State Commission; and (b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with . material irregularity _(emphasis supplied)_ Thus, the National Commission has, (i) original jurisdiction to entertain complaints where the value of goods or services and compensation, if any, claimed exceeds rupees one crore, (ii) appellate jurisdiction against the orders of State Commission and (iii) revisional jurisdiction over the State Commission in any consumer dispute pending or decided by a State Commission which is challenged on WA 618-2021 11 ground of lack or excess of jurisdiction. 13. The 3[rd] respondent invoked the original jurisdiction of the District Forum under section 11 of the Consumer Protection Act, 1986 by filing Ext.P4 complaint. The appellant, aggrieved by Ext. P8 order of the District Forum, preferred Ext.P9 appeal before the State Commission. The State Commission exercised appellate jurisdiction under section 17(1) (a) (ii) of the Act and passed Ext. P10 order. Under section 19, an appeal shall lie to the National Commission only against an order of the State commission made in exercise of its original jurisdiction under section 17(1) (a) (i). To this extent, the learned counsel for the appellant is right in contending that the National Commission has no appellate jurisdiction under section 19 of the Consumer Protection Act, 1986. However, still a revision would be maintainable against the order of the State Commission in exercise of its appellate jurisdiction. Section 21 (b) of the Consumer Protection Act, 1986 enables the National Commission to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission WA 618-2021 12 has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in exercise of its jurisdiction illegally or with material irregularity. The learned Single Judge refused to exercise jurisdiction under Article 226 of the Constitution since the appellant has an effective alternative remedy under the Consumer Protection Act,1986 against the order of the State Commission. The said finding does not require any interference for the reason that the remedy is by way of revision to the National Commission and not by means of an appeal. In view of the efficacious alternative remedy under section 21 (b) of the Consumer Protection Act,1986, we decline to exercise jurisdiction under Article 226 of the Constitution. 14. The Consumer Protection Act, 1986 is a self contained and a complete mechanism for redressal of the consumers related grievances by filing complaint, appeal and revision from the District Forum up to the Supreme Court subject to limits of jurisdiction provided therein. When hierarchy of remedies are provided under the Consumer Protection Act, 1986, the appellant has to avail the remedy under the said Act. Ext.P10 order passed by the State Commission is WA 618-2021 13 revisable before the National commission under section 21 (b). The appellant having contested the claim before the CDRF on merits and subjected itself to the jurisdiction of the CDRF and further elected the remedy available to it by challenging the order of the CDRF before the State Commission by preferring appeal under section 15 of the Act, cannot switch over to another remedy in midway, even assuming such remedy by way of a writ petition is available to the appellant. We find no exceptional or extra ordinary circumstances warranting interference with the order of the State Commission invoking the jurisdiction of this Court under Article 226 of the Constitution of India. 15. The Apex Court in **Nivedita Sharma v. Cellular Operators Association of India and others (2011 (14) SCC 337: 2011 KHC 5230)** considered the question as to whether the High Court should have entertained a writ petition filed under Art.226 of the Constitution challenging the order of the State Commission ignoring the statutory remedy of appeal available under S.19 of the Consumer Protection Act, 1986. The Apex Court held:- “18. The 1986 Act was enacted for better protection of the interests of consumers by making provision for the WA 618-2021 14 establishment of consumer councils and other authorities for the settlement of consumer disputes. The object and purpose of enacting the 1986 Act is to provide for simple, inexpensive and speedy remedy to the consumers who have grievance against defective goods and deficient services. This benevolent piece of legislation intended to protect a large body of consumers from exploitation. 19. Prior to the 1986 Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is a known fact that decision of the litigation instituted in the Civil Court could take several years. Under the 1986 Act, the consumers are provided with an alternative, efficacious and speedy remedy before consumer forums at district, state and national level. xxx 24. S.19 provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of Clause (a) of S.17. If S.11, S.17 and S.21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation. 25. What has surprised us is that the High Court has not even referred to S.17 and S.19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents. 26. We also find that the High Court has taken cognizance of the statement made on behalf of the counsel for the petitioners that their clients would challenge Clause (iii) of para 38 of the State Commission's order by filing an appeal under S.19 of the Act and the fact that one of the aggrieved parties, namely, American Express Bank Limited has already filed an appeal questioning paragraph 38(iii) of the order WA 618-2021 15 of the State Commission. After having noticed that some of the petitioners were inclined to avail the remedy of appeal against the particular portion of the order passed by the State Commission, the High Court should not have entertained the writ petition filed under Art.226 of the Constitution and the miscellaneous petitions filed under Art.227 of the Constitution and directed them to avail remedy of appeal under S.19 of the 1986 Act... " 16. Here, we may also refer to the decision of the Apex Court in _**Cicily Kallarackal**_ v. _**Vehicle Factory [(2012)8 SCC 524]**_ wherein, the Apex Court, while considering the issue as to whether the High Court has jurisdiction to entertain a writ petition against the judgment and order passed by the National Commission, held that once the legislature has provided for statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher courts and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. 17. When a forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory requirement. 18. The learned counsel for the appellant submitted that during the pendency of the writ petition before this Court, the Consumer WA 618-2021 16 Protection Act, 1986 was repealed and new Act of 2019 came into force on 20.07.2020 and the new Act provides for an appeal to the National Commission from any order passed in appeal by the State Commission, if the National Commission is satisfied that the case involves a substantial question of law; but is hedged with a condition that the appellant deposits fifty percent of the amount required under the order of the State Commission, whereas under the 1986 Act it was fifty percent or rupees thirty five thousand, whichever is less. The Apex Court, in **Neena Aneja and another** _**v**_ **. Jai Prakash Associates Ltd (AIR 2021 SC 1441:2021 KHC 6168)** , has very elaborately considered the legislative scheme of the jurisdictional provisions of the 2019 Act, legislative intendment underlying section 107 of the 2019 Act dealing with 'Repeal and Savings' and the impact of the 2019 Act upon pending cases which were filed before the fora constituted under the Consumer Protection Act, 1986 and held that proceedings instituted before the commencement of the Act of 2019 on 20.07.2020 would continue before the fora corresponding to those under the Act of 1986 and not to be transferred in terms of the pecuniary jurisdiction set for the fora established under the 2019 Act. WA 618-2021 17 The appellant in the said case instituted a consumer case before the National Commission on 18[th] June 2020. The Consumer Protection Act, 2019 came into force on 20[th] July 2020 and by section 58 (1) (a) (i) of the said Act, the pecuniary jurisdiction of the National Commission was enhanced to rupees ten crores and above whereas it was rupees one crore and above under the 1986 Act. The National Commission by its order dated 30.07.2020 dismissed the consumer case filed under the erstwhile legislation on the ground that after the enforcement of the 2019 Act, its pecuniary jurisdiction has been enhanced from one crore to ten crores. The appellant's review petition was also dismissed against which an appeal was filed before the Supreme Court. While holding that the proceedings instituted before the commencement of the Act of 2019 would continue before the fora corresponding to those under the Consumer Protection Act, 1986, the Apex Court considered the legislative intendment underlying section 107 of the Consumer Protection Act, 2019 dealing with 'Repeal and Savings' and its interplay with section 6 of the General Clauses Act, 1897 and held as follows:- “62....Section 107(1) of the Act of 2019 repeals the Act of 1986. In State of Rajasthan v. Mangilal Pindwal, this Court accepted the principle that the effect of a repeal, in the absence of a savings WA 618-2021 18 clause or a general savings statute, is that "a statute is obliterated" subject to the exception that it exists in respect of transactions past and closed. Section 107 (2) has saved "the previous operation" of any repealed enactment or "anything duly done or suffered thereunder to the extent that it is not inconsistent with the provisions of the new legislation". Finally, Section 107(3) indicates that the mention of particular matters in sub-Section (2) will not prejudice or affect the general application of Section 6 of the General Clauses Act. 63. Section 6 of the General Clauses Act provides governing principles with regard to the impact of the repeal of a central statute or regulation. These governing principles are to apply, "unless a different intention appears". Clause (c) of Section 6 inter alia stipulates that a repeal would not affect “any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed". The right to pursue a validly instituted consumer complaint under the Act of 1986 is a right which has accrued under the law which was repealed. Clause (e) of Section 6 stipulates that the repeal will not affect, inter alia, any "legal proceeding or remedy" in respect of any such right…as aforesaid". Any such legal proceedings may be continued as if the repealing legislation had not been passed. Clause (c) of Section 6 has the effect of preserving the right which has accrued. Clause (e) ensures that a legal proceeding which has been initiated to protect or enforce "such right" will not be affected and that it can be continued as if the repealing legislation has not been enacted. The expression such a right in clause (e) evidently means the right which has been adverted to in clause (c). The plain consequence of clause (c) and clause (e), when read together is twofold: first, the right which has accrued on the date of the institution of the consumer complaint under the Act of 1986 (the repealing law) is preserved; and second, the enforcement of the right through the instrument of a legal proceeding or remedy will not be affected by the repeal”. 17. The right to an appellate remedy becomes vested when the _lis_ is initiated. The remedy which was available prior to the amendment would continue to be available despite the amendment. Therefore, it is for the appellant to invoke the revisional jurisdiction WA 618-2021 19 of the National Commission under section 21 (b) of the Consumer Protection Act, 1986. 18. A Revision Petition under section 21 (b) has to be filed before the National Commission within a period of ninety days from the date of receipt of order of the State Commission. The National Commission has power to condone delay if sufficient cause is shown to its satisfaction. It is for the appellant to approach the National Commission, if so advised. 19. In view of our finding that the appellant has an effective alternative remedy under Section 21 (b) of the Consumer Protection Act, 1986, we are not considering other issues raised by the appellant and the same are left open to be considered by the appropriate forum. The writ appeal is accordingly dismissed with the above observations. Sd/- ## **C.T.RAVIKUMAR, JUDGE** ## **Sd/-** ## **MURALI PURUSHOTHAMAN, JUDGE** spc/