KISHORELAL versus CHAIRMAN, E.S.I. CORPORATION

Citation: [2007] 6 S.C.R. 139 · Decided: 08-05-2007 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

.. 
' 
KISHORELAL 
A 
v. 
CHAIRMAN, E.S.I. CORPORATION 
MAY 8, 2007 
[B.N. AGRA WAL, P.P. NAOLEKARAND DAL VEER BHANDARI, JJ.] 
B 
' .. 
Consumer Protection Act, 1986-Ss. 2(d) and 2(o)-Employees' State 
Insurance Act, 1948-ss. 7 4 and 7 5-Employees' State Insurance (Central) 
Rules, 1950-Medical negligence-Claim of compensation by complainant c 
for deficiency in service by ES! hospital before Consumer Forum-Dismissal 
of the complaint holding that the complainant is not a 'consumer' under the 
Consumer Protection Act since the medical service rendered is gratuitous in 
nature-Correctness of-Jurisdiction of Employees' State Insurance Court in 
dealing with compensation for medical negligence-Held, medical service 
rendered by ESJ hospital is not gratuitous in nature since the expenses are D 
reimbursed by contributions under the Act of 1948-Hence, the Consumer 
~ 
Forum has jurisdiction to deal with deficiency in service-Employees' 
r 
Insurance Court does not have jurisdiction under the Act of 1948 to deal 
with claim for damages for medical negligence. 
Appellant was insured with respondent-Corporation. The appellant's wife E 
was admitted in the respondent's dispensary for her treatment for diabetes. 
When her condition deteriorated, the appellant got his wife medically examined 
in a private hospital. The medical tests done revealed that the deterioration in 
condition of his wife was due to wrong diagnosis and treatment in the 
respondent's dispensary. The appellant-complainant filed a complaint under F 
the Consumer Protection Act, 1986 before District Forum claiming 
;t._ 
compensation. The respondent raised preliminary objections contending that 
the appellant is not a 'consumer' under the Act since the medical service 
rendered by the respondent's dispensary is gratuitous in nature. The District 
Forum dismissed the complaint upholding the contention of the respondent. 
State Commission and National Commission dismissed the appeals of the G 
appellant. 
I 
In appeal to this Court, the appellant contended that the medical services 
,,..., 
rendered by the respondent's hospital cannot be said to be gratuitous in nature 
139 
H 
140 
SUPREME COURT REPORTS 
[2007) 6 S.C.R. 
't ;-
A since the expenses are reimbursed as he is a member of an insurance scheme 
applicable in the establishment under the Employees' State Insurance Act 
where he is serving and therefore, the insurance policy which takes care of 
the medical treatment of the appellant as well as his dependants which is given 
in the respondent's dispensary, would be a service falling within the purview 
B 
of Section 2(l)(o) of the Consumer Protection Act, 1986; that this Court in 
Indian Medical Association had held that any medical service given under a 
scheme of insurance fall within the purview of the Act and hence, the appellant 
is a 'consumer' under the Act. 
The respondent-Corporation contended that the appellant is not a 
c 'consumer' under the Act since the medical service rendered by the 
respondent's dispensary is gratuitous in nature; and that by virtue of Section 
74 read with section 75 of the Employees State Insurance Act, 1948, the claim 
made by the appellant would exclusively fall for decision within the jurisdiction 
of the Employees' Insurance Court established under the Insurance Act; and 
that since the Insurance Act is a special Act, the Consumer Forum has no 
D jurisdiction to adjudicate upon the issue. 
Allowing the appeal, the Court 
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HELD:l.1. On a plain reading of the provisions of the Employees' State 
" 
Insurance Act, 1948, it is apparent that the respondent-Corporation is 
E required to maintain and establish the hospitals and dispensaries and to 
provide medical and surgical services. Service rendered in the hospital to the 
insured person or his family member for medical treatment is not free, in 
the sense that the expenses incurred for the service rendered in the hospital 
would be borne from the contributions made to the insurance scheme by the 
F employer and the employee and, therefore, the principle enunciated in Indian 
Medical Association v. V.P. Shantha & Ors .. (1995) 6 SCC 651 will squarely 
apply to the facts of the present case, where the appellant has availed the 
services under the insurance policy which is compulsory under the statute. 
Wherever the charges for medical treatment are borne under the insurance 
policy, it would be a service rendered within the ambit of Section 2(1)(o) of 
G the Consumer 

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