{"id":180808,"date":"2007-05-08T00:00:00","date_gmt":"2007-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kishore-lal-vs-chairman-employees-state-on-8-may-2007"},"modified":"2017-09-15T11:57:02","modified_gmt":"2017-09-15T06:27:02","slug":"kishore-lal-vs-chairman-employees-state-on-8-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kishore-lal-vs-chairman-employees-state-on-8-may-2007","title":{"rendered":"Kishore Lal vs Chairman, Employees State … on 8 May, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kishore Lal vs Chairman, Employees State … on 8 May, 2007<\/div>\n
Bench: B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  4965 of 2000\n\nPETITIONER:\nKishore Lal\n\nRESPONDENT:\nChairman, Employees State Insurance Corporation\n\nDATE OF JUDGMENT: 08\/05\/2007\n\nBENCH:\nB.N. AGRAWAL, P.P. NAOLEKAR & DALVEER BHANDARI\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
P.P. NAOLEKAR, J.:\n<\/p>\n
1.\tThe appellant was insured with the respondent-Employees’
\nState Insurance Corporation (for short “the Corporation”) with
\nInsurance No. 913644.  The employee’s\/appellant’s contribution
\ntowards the insurance scheme under the Employees’ State
\nInsurance Act, 1948 (hereinafter referred to as “the ESI Act”)
\nwas being deducted regularly from his salary and deposited by his
\nemployer with the Corporation.  In 1993, the appellant’s wife was
\nadmitted in the ESI dispensary at Sonepat for her treatment for
\ndiabetes.  However, the condition of his wife continued to
\ndeteriorate.  As alleged by the appellant, there were instances
\nwhen the doctors were not available even during emergencies.
\nLater, the appellant got his wife medically examined in a private
\nhospital.  The tests done revealed that his wife had been
\ndiagnosed incorrectly in the ESI dispensary; and that the
\ndeterioration in the condition of the appellant’s wife was a direct
\nresult of the wrong diagnosis.  The appellant filed a complaint
\nunder the Consumer Protection Act, 1986 (hereinafter referred
\nto as “the CP Act”) before the District Consumer Disputes
\nRedressal Forum seeking (i) compensation towards mental agony,
\nharassment, physical torture, pains, sufferings and monetary loss
\nfor the negligence of the authorities; (ii) direction for removal
\nof, and improvement in, the deficiencies; and (iii) direction for
\npayment of interest on the amount of reimbursement bills.  The
\nCorporation through its officers entered appearance and raised
\ncertain preliminary objections, namely,  (i) that the complaint
\nfiled is not maintainable in the District Consumer Forum and is
\nliable to be dismissed as the wife of the complainant was treated
\nin the ESI dispensary, Sonepat, which is a government dispensary
\nand the complainant cannot be treated as a consumer;  and (ii)
\nthat the complainant is not a consumer within the definition of
\n`consumer’ in the CP Act and he is not entitled to file a complaint
\nagainst the ESI dispensary.  It was also contended that the
\nfacility of medical treatment in government hospital cannot be
\nregarded as a `service’ hired for consideration, apart from the
\nother defences raised in the written statement.\n<\/p>\n
2.\tThe District Consumer Forum relied on the ratio of Birbal
\nSingh v. ESI Corporation,  1993 II CPJ 1028, wherein on a
\ncomplaint filed for compensation for being aggrieved by poor
\nmedical attention received by the late wife of the complainant at
\nan ESI hospital, the Haryana State Commission had held that the
\ncomplainants did not come within the ambit of the definition of
\n`consumer’ under the CP Act because of the gratuitous nature of
\nthe medical services provided.  On this basis, the District Forum
\nheld that the services rendered by the ESI dispensary are
\ngratuitous in nature and, therefore, out of the purview of the CP
\nAct.  Appeal was preferred to the Haryana State Consumer
\nDisputes Redressal Commission and it was urged by the appellant
\nthat ESI is a scheme of insurance and hence the service
\nrendered by the Corporation was not gratuitous.  The State
\nCommission relying on the judgment in Birbal Singh (supra) and
\nIndian Medical Association v. V.P. Shantha and Others,<\/a> (1995)
\n6 SCC 651 held that free medical services were not covered by
\nthe CP Act and upheld the judgment of the District Forum.
\nAppellant preferred a revision before the National Consumer
\nDisputes Redressal Commission, but the same was also dismissed
\nin limine.  Hence, this appeal by special leave.\n<\/p>\n
3.\tBy second counter affidavit filed in August, 2000, the
\nrespondent-Corporation have also raised the question of the
\njurisdiction of a consumer forum.  The respondent contended
\nthat by virtue of Section 75 of the ESI Act, the dispute raised
\nby the appellant is covered and is to be decided by the Employees’
\nInsurance Court established under Section 74 of the ESI Act
\nand it being a special Act the jurisdiction of the consumer forum
\nis ousted.\n<\/p>\n
4.\tFrom the decisions rendered by the District Forum, the
\nState Commission and the National Commission, and the questions
\nraised by the appellant and the respondent, the question that
\nfalls for our consideration is two-fold:\n<\/p>\n
1. Whether the service rendered by an ESI hospital is
\ngratuitous or not, and consequently whether it falls within
\nthe ambit of `service’ as defined in the Consumer
\nProtection Act, 1986?\n<\/p>\n
2.\tWhether Section 74 read with Section 75 of the
\nEmployees’ State Insurance Act, 1948 ousts the jurisdiction
\nof the consumer forum as regards the issues involved for
\nconsideration?\n<\/p>\n
5.\tIt is contended by Shri Dayan Krishnan, the learned counsel
\nfor the appellant, that in the case of Indian Medical Association
\n(supra) although it was held that the free medical service was not
\ncovered under the CP Act, the very same judgment in conclusion
\nNo. (11) in para 55 includes any medical service given under the
\nscheme of insurance within the scope of the CP Act and,
\ntherefore, the claim made by the appellant squarely falls within
\nthe jurisdiction of the consumer forum, the appellant being a
\nconsumer and the respondent’s dispensary having rendered a
\nservice to him for consideration.\n<\/p>\n
6.\tAt this stage, it would be appropriate to refer to certain
\nstatutory provisions of the Consumer Protection Act, 1986.
\n`Consumer’ is defined in clause (d) and `service’ in clause (o) of
\nSection 2(1) of the CP Act as under:\n<\/p>\n
“2.  Definitions.- (1) In this Act, unless the context
\notherwise requires, –\n<\/p>\n
xxx\t\t\t\t\txxx\t\t\t\txxx<\/p>\n
(d) “consumer” means any person who, –\n<\/p>\n
(i) buys any goods for consideration which has
\nbeen paid or promised or partly paid and partly
\npromised, or under any system of deferred
\npayment and includes any user of such goods
\nother than the person who buys such goods for
\nconsideration paid or promised or partly paid or
\npartly promised, or under any system of
\ndeferred payment, when such use is made with
\nthe approval of such person, but does not include
\na person who obtains such goods for resale or for
\nany commercial purpose; or<\/p>\n
(ii) hires or avails of any services for a
\nconsideration which has been paid or promised or
\npartly paid and partly promised, or under any
\nsystem of deferred payment and includes any
\nbeneficiary of such services other than the
\nperson who hires or avails of the services for
\nconsideration paid or promised, or partly paid and
\npartly promised, or under any system of
\ndeferred payment, when such services are
\navailed of with the approval of the first
\nmentioned person but does not include a person
\nwho avails of such services for any commercial
\npurpose;\n<\/p>\n
\tExplanation.- For the purposes of this
\nclause, “commercial purpose” does not include use
\nby a person of goods bought and used by him and
\nservices availed by him exclusively for the
\npurposes of earning his livelihood by means of
\nself-employment;”\n<\/p>\n
xxx\t\t\t\t\txxx\t\t\t\txxx<\/p>\n
“(o) “Service” means service of any description which
\nis made available to potential users and includes, but
\nnot limited to, the provision of facilities in connection
\nwith banking, financing, insurance, transport,
\nprocessing, supply of electrical or other energy, board
\nor lodging or both, housing construction,
\nentertainment, amusement or the purveying of news or
\nother information, but does not include the rendering
\nof any service free of charge or under a contract of
\npersonal service;”\n<\/p>\n
7.\tThe definition of `consumer’ in the CP Act is apparently
\nwide enough and encompasses within its fold not only the goods
\nbut also the services, bought or hired, for consideration.  Such
\nconsideration may be paid or promised or partly paid or partly
\npromised under any system of deferred payment and includes any
\nbeneficiary of such person other than the person who hires the
\nservice for consideration.  The Act being a beneficial legislation,
\naims to protect the interests of a consumer as understood in the
\nbusiness parlance.   The important characteristics of goods and
\nservices under the Act are that they are supplied at a price to
\ncover the costs and generate profit or income for the seller of
\ngoods or provider of services.  The comprehensive definition aims
\nat covering every man who pays money as the price or cost of
\ngoods and services.  However, by virtue of the definition, the
\nperson who obtains goods for resale or for any commercial
\npurpose is excluded, but the services hired for consideration
\neven for commercial purposes are not excluded.  The term
\n`service’ unambiguously indicates in the definition that the
\ndefinition is not restrictive and includes within its ambit such
\nservices as well which are specified therein.  However, a service
\nhired or availed, which does not cost anything or can be said free
\nof charge, or under a contract of personal service, is not included
\nwithin the meaning of `service’ for the purposes of the CP Act.\n<\/p>\n
8.\tA 3-Judge Bench of this Court in Indian Medical
\nAssociation (supra) has extensively considered the provisions of
\nthe CP Act and particularly what shall be a `service’ within the
\nmeaning of Section 2(1)(o) of the said Act.  The Court was
\nconsidering whether the service rendered by the doctors would
\nfall within the purview of the CP Act, it being a service rendered
\nfor the charges; and whether the patients, who are treated by
\nthe doctors, are `consumers’ as defined in Section 2(1)(d) of the
\nCP Act.  The Court said that the definition of  `service’ in
\nSection 2(1)(o) can be split into three parts: the main part, the
\ninclusionary part and the exclusionary part.  The main part is
\nexplanatory in nature and defines service to mean service of any
\ndescription which is made available to the potential users.  The
\ninclusionary part expressly includes the provision of facilities in
\nconnection with banking, financing, insurance, transport,
\nprocessing, supply of electrical or other energy, board or lodging
\nor both, housing construction, entertainment, amusement or the
\npurveying of news or other information, whereas the exclusionary
\npart excludes rendering of any service free of charge or under a
\ncontract of personal service.  The exclusionary part in Section
\n2(1)(o) excludes from the main part service rendered (i) free of
\ncharge; or (ii) under a contract of personal service.  The
\nexpression ‘contract of personal service’ in the exclusionary part
\nof Section 2(1)(o) must be construed as excluding the services
\nrendered by an employee to his employer under the contract of
\npersonal service from the ambit of the expression `service’.
\nThere is a distinction between a ‘contract of service’ and a
\n`contract for service’.   A `contract for service’ implies a
\ncontract whereby one party undertakes to render service e.g.
\nprofessional or technical service, to or for another in the
\nperformance of which he is not subject to detailed direction and
\ncontrol and exercises professional or technical skill and uses his
\nown knowledge and discretion, whereas a `contract of service’
\nimplies relationship of master and servant and involves an
\nobligation to obey orders in the work to be performed  and as to
\nits mode and manner of performance.  A contract of service is
\nexcluded for consideration from the ambit of definition of
\n`service’ in  the CP Act, whereas a contract for service is
\nincluded.  As regards service rendered free of charge under
\nSection 2(1)(o), the Court held that the medical practitioners,
\ngovernment hospitals\/nursing homes and private hospitals\/nursing
\nhomes, who render service without any charge whatsoever to
\nevery person availing of the service would not fall within the
\nambit of `service’ under Section 2(1)(o) of the Act.  The payment
\nof a token amount for registration purposes only would, however,
\nnot alter the position in respect of such doctors and hospitals,
\nbut the service rendered for which charges are required to be
\npaid by everybody availing the service would fall within the
\npurview of the expression `service’ as defined in Section 2(1)(o)
\nof the Act.  The Court held that the relationship between a
\nmedical practitioner and a patient carries within it a certain
\ndegree of mutual confidence and trust and, therefore, the
\nservice rendered by the medical practitioners can be regarded as
\na service of personal nature, but since there is no relationship of
\nmaster and servant between the doctor and the patient the
\ncontract between the medical practitioner and his patient cannot
\nbe treated as a contract of personal service and it is a contract
\nfor service and the service rendered by the medical practitioner
\nto his patient under such contract is not covered by the
\nexclusionary part of the definition of `service’ contained in
\nSection 2(1)(o) of the CP Act.    In paragraph 55 of the judgment,
\nthe Court summarized its conclusions.  We are really concerned in
\nthis case with conclusions Nos. (9), (10), (11) and (12).  Conclusion
\nNo. (9) is in regard to the service rendered at a government
\nhospital\/health center\/dispensary where no charges whatsoever
\nare made from any person and they are given free service, which
\nwould not be a service under Section 2(1)(o) of the CP Act.
\nConclusion No. (10) lays down that where the service is rendered
\nat a government hospital\/health center\/dispensary on payment of
\ncharges and also rendered free of charge, then it would fall
\nwithin the ambit of the expression `service’.  Conclusion No. (11)
\nsays that if a patient or his relation availed of the service of a
\nmedical practitioner or  hospital\/nursing home where the charges
\nfor consultation, diagnosis and medical treatment are borne by
\nthe insurance company,  then such service would fall within the
\nambit of service.  Similarly, under conclusion No. (12), where as a
\npart of the conditions of service the employer bears the
\nexpenses of medical treatment of an employee and his family
\nmembers dependent on him, then the service rendered by a
\nmedical practitioner or a hospital\/nursing home would not be
\ntreated to be free of charge and would constitute `service’ under
\nSection 2(1)(o).\n<\/p>\n
9.\tIn the case of Laxman Thamappa Kotgiri v. G.M. Central
\nRailway & Ors.,<\/a>  2005 (1) Scale 600, where an employee of the
\nrailways had filed a complaint on the ground that his wife had
\nbeen negligently treated at a hospital of the Central Railway as a
\nresult of which she had died, the State Commission concluded
\nthat since the hospital had been set up to treat railway
\nemployees predominantly and the service provided was free of
\ncharge it did not come within the definition of `service’ under the
\nCP Act and hence the complaint was not maintainable.  On appeal
\nto the National Commission, the judgment of the State
\nCommission was upheld and the appeal filed by the employee was
\nrejected.  Thereafter, appeal was preferred to this Court.
\nAllowing the appeal, this Court in paras 6 and 7 has held as under:\n<\/p>\n
“6.  There is no dispute that the Hospital in question
\nhas been set up for the purpose of granting medical
\ntreatment to the Railway employees and their
\ndependents.  Apart from the nominal charges which
\nare taken from such an employee, this facility is part
\nof the service conditions of the Railway employees.
\nV.P. Shantha’s case has made a distinction between
\nnon-Governmental hospital\/nursing home where no
\ncharge whatsoever was made from any person availing
\nof the service and all patients are given free  service
\n(vide para 55(6) at page 681) and services rendered at
\nGovernment Hospital\/Health Centre\/Dispensary where
\nno charge whatsoever is made from any person availing
\nof the services and all patients are given free service
\n(vide para 55(9)) on the hand and service rendered to
\nan employee and his family members by a medical
\npractitioner or a hospital\/nursing home which are
\ngiven as part of the conditions of service to the
\nemployee and where the employer bears expenses of
\nthe medical treatment of the employee and his family
\nmembers, (paragraph 55(12) on the other.  In the first
\ntwo circumstances, it would not be free service within
\nthe definition of the Sec. 2(1)(o) of the Act.  In the
\nthird circumstance it would be.\n<\/p>\n
7.  Since it is not in dispute that the medical
\ntreatment in the said Hospital is given to employees
\nlike the appellant and his family members is part of
\nthe conditions of service of the appellant and that the
\nHospital is run and subsidised by the appellants
\nemployer, namely, the Union of India, the appellant’s
\ncase would fall within the parameters laid down in
\nparagraph 55(12) of the judgment in V.P. Shantha’s
\ncase and not within the parameters of either para
\n55(6) or para 55(9) of the said case.”\n<\/p>\n
10.\tFurther, the appellant has brought to our notice  a judgment
\nof this Court in the case of Regional Provident Fund
\nCommissioner v. Shiv Kumar Joshi,<\/a> (2000) 1 SCC 98, wherein the
\nEmployees’ Provident Fund Scheme, 1952, framed under Section 5
\nof the Employees’ Provident Fund Act came for consideration of
\nthe Court and the Court held in para 11 as under:\n<\/p>\n
”  <\/p>\n
A perusal of the Scheme unambiguously shows that it
\nis for consideration which is applicable to all those
\nfactories and establishments covered under the Act
\nand the Scheme who are required to become a member
\nof the fund under the Scheme.    The contribution of
\nthe employee has to be equal to the contribution
\npayable by the employer in respect of such employee.
\nThe words “in respect of” are significant as they
\nindicate the liability of the employer to pay his part of
\nthe contribution in consideration of the employee
\nworking with him.  But for the employment of the
\nemployee there is no obligation upon the employer to
\npay his part of the contribution to the Scheme.  The
\nadministrative charges, as required to be paid under
\nPara 30 of the Scheme are also paid for consideration
\nof the employee being the member of the Scheme and
\nfor the services rendered under the Scheme.  It is
\nimmaterial as to whether such charges are deducted
\nactually from the wages of the employee or paid by his
\nemployer in respect of the member-employee of the
\nScheme working for such employer.   It cannot be
\nheld that even though the employee is a member of
\nthe Scheme, yet the employer would only be deemed
\nto be a consumer for having made payments of the
\nadministrative charges. ..”\n<\/p>\n
11.\tIt is contended by the learned counsel for the appellant
\nthat the appellant is a member of the insurance scheme applicable
\nin the establishment where he is serving and, therefore, the
\ninsurance policy which takes care of the medical treatment of the
\nappellant as well as his dependents which is given in the ESI
\nhospital\/dispensary would be a service falling within the purview
\nof Section 2(1)(o) of the CP Act.  To appreciate this contention of
\nthe learned counsel, it would be necessary to consider the
\ninsurance scheme which is applicable in the establishment under
\nvarious provisions of the ESI Act.\n<\/p>\n
12.\t    It is an admitted fact that the appellant’s wife was given
\ntreatment in the ESI dispensary at Sonepat.  Under Section 38
\nof the ESI Act, all employees in a factory or establishment where
\nthe Act applies are required to be insured under the insurance
\nscheme.  Section 39 speaks of the contribution which is required
\nto be paid to the Corporation for the insurance scheme which
\nshall comprise the contribution payable by the employer and the
\ncontribution payable by the employee.  The contribution is
\nrequired to be paid at such rates as may be prescribed by the
\nCentral Government.  By virtue of Section 40, the principal
\nemployer is liable to pay the contributions, both the employer’s
\ncontribution and the employee’s contribution, in the first instance
\nof the employees directly employed by him or by or through an
\nimmediate employer.  Sub-section (2) of Section 40 authorises
\nthe principal employer to recover the contribution made for the
\nemployee by deducting the same from the wages of the employee.
\nChapter V of the ESI Act deals with benefits.   Sub-section (1)
\nof Section 46 falling within this Chapter contemplates that the
\ninsured persons, their dependents and the persons mentioned
\nunder the Section shall be entitled to the various benefits
\nreferred to in clauses (a) to (f).   Clause (e) reads: “medical
\ntreatment for an attendance on insured persons (hereinafter
\nreferred to as medical benefit)”. Section 56 is a specific Section
\nwhich has reference to the medical benefits available to an
\ninsured person or to his family member whose condition requires
\nmedical treatment and attendance and they shall be entitled to
\nreceive medical benefit.  Under Section 59, the Corporation is
\ncalled upon with the approval of the State Government to
\nestablish and maintain in a State such hospitals, dispensaries and
\nother medical and surgical services as it may think fit for the
\nbenefit of insured persons and,  where such medical benefit is
\nextended, to their families.\n<\/p>\n
13.\t   On a plain reading of the aforesaid provisions of the ESI
\nAct, it is apparent that the Corporation is required to maintain
\nand establish the hospitals and dispensaries and to provide
\nmedical and surgical services.  Service rendered in the hospital to
\nthe insured person or his family member for medical treatment is
\nnot free, in the sense that the expense incurred for the service
\nrendered in the hospital would be borne from the contributions
\nmade to the insurance scheme by the employer and the employee
\nand, therefore, the principle enunciated in conclusion No. (11) in
\npara 55 in the case of Indian Medical Association (supra) will
\nsquarely apply to the facts of the present case, where the
\nappellant has availed the services under the insurance policy
\nwhich is compulsory under the statute.  Wherever the charges
\nfor medical treatment are borne under the insurance policy, it
\nwould be a service rendered within the ambit of Section 2(1)(o)
\nof the  CP Act.   It cannot be said to be a free service rendered
\nby the ESI hospital\/dispensary.\n<\/p>\n
14.\t  The service rendered by the medical practitioners of
\nhospitals\/nursing homes run by the ESI Corporation cannot be
\nregarded as a service rendered free of charge.  The person
\navailing of such service under an insurance    scheme of   medical
\ncare, whereunder the charges for consultation, diagnosis and
\nmedical treatment are borne by the insurer, such service would
\nfall within the ambit of `service’  as defined in Section 2(1)(o) of
\nthe CP Act.  We are of the opinion that the service provided by
\nthe ESI hospital\/dispensary falls within the ambit of `service’ as
\ndefined in Section 2(1)(o) of the CP Act.   ESI scheme is an
\ninsurance scheme and it contributes for the service rendered by
\nthe ESI hospitals\/dispensaries, of medical care in its
\nhospitals\/dispensaries, and as such service given in the ESI
\nhospitals\/dispensaries to a member of the Scheme or his family
\ncannot be treated as gratuitous.\n<\/p>\n
15.\t   We shall now proceed to consider the second question
\nraised by Shri Vijay K. Mehta, the learned counsel for the
\nrespondent that by virtue of Section 74 read with Section 75,
\nand particularly Section 75(e), of the ESI Act, the claim made by
\nthe appellant would exclusively fall for decision within the
\njurisdiction of the Employees’ Insurance Court and that being the
\nposition the consumer forum has no jurisdiction to adjudicate
\nupon the issue.\n<\/p>\n
16.\t   Relevant portions of Sections 74 and 75 of the ESI Act
\nare reproduced below:\n<\/p>\n
“74.  Constitution of Employees’ Insurance Court.-
\n(1) The State Government shall, by notification in the
\nOfficial Gazette, constitute an Employees’ Insurance
\nCourt of such local area as may be specified in the
\nnotification.\n<\/p>\n
xxx\t\t\t\txxx\t\t\t\t\txxx”\n<\/p>\n
“75. Matters to be decided by Employees’ Insurance
\nCourt.- (1) If any question or dispute arises as to  <\/p>\n
(a) whether any person is an employee within the
\nmeaning of this Act or whether he is liable to pay
\nthe employee’s contribution, or<\/p>\n
(b) the rate of wages or average daily wages of
\nan employee for the purpose of this Act, or<\/p>\n
(c) the rate of contribution payable by the
\nprincipal employer in respect of any employee, or<\/p>\n
(d) the person who is or was the principal
\nemployer in respect of any employee, or<\/p>\n
(e) the right of any person to any benefit and as
\nto the amount and duration thereof, or<\/p>\n
(ee) any direction issued by the Corporation
\nunder Section 55-A on a review of any payment
\nof dependants’ benefits, or,<\/p>\n
(f) [Omitted], or<\/p>\n
(g) any other matter which is in dispute between
\na principal employer and the Corporation, or
\nbetween a principal employer and an immediate
\nemployer, or between a person and the
\nCorporation or between an employee and a
\nprincipal or immediate employer, in respect of
\nany contribution or benefit or other dues payable
\nor recoverable under this Act, or any other
\nmatter required to be or which may be decided
\nby the Employees’ Insurance Court under this
\nAct,  <\/p>\n
such question or dispute subject to the provisions of
\nsub-section (2-A) shall be decided by the Employees’
\nInsurance Court in accordance with the provisions of
\nthis  Act.\n<\/p>\n
(2) Subject to the provisions of sub-section (2-
\nA), the following claims shall be decided by the
\nEmployees’ Insurance Court, namely, –\n<\/p>\n
(a) claim for the recovery of contributions from
\nthe principal employer;\n<\/p>\n
(b) claim by a principal employer to recover
\ncontributions from any immediate employer;\n<\/p>\n
(c) (Omitted);\n<\/p>\n
(d) claim against a principal employer under
\nSection 68;\n<\/p>\n
(e) claim under Section 70 for the recovery of
\nthe value or amount of the benefits received by
\na person when he is not lawfully entitled thereto;
\nand<\/p>\n
(f) any claim for the recovery of any benefit
\nadmissible under this Act.\n<\/p>\n
xxx\t\t\t\t\txxx\t\t\t\txxx<\/p>\n
\t(3).\tNo Civil Court shall have jurisdiction to
\ndecide or deal with any question or dispute as
\naforesaid or to adjudicate on any liability which by or
\nunder this Act is to be decided by a medical board, or
\nby a medical appeal tribunal or by the Employees’
\nInsurance Court.”\n<\/p>\n
17.\t   It has been held in numerous cases of this Court that the
\njurisdiction of a consumer forum has to be construed liberally so
\nas to bring many cases under it for their speedy disposal.  In the
\ncase of M\/s. Spring Meadows Hospital and Another v. Harjol
\nAhluwalia and Another, AIR<\/a> 1998 SC 1801, it was held that the
\nCP Act creates a framework for speedy disposal of consumer
\ndisputes and an attempt has been made to remove the existing
\nevils of the ordinary court system.  The Act being a beneficial
\nlegislation should receive a liberal construction.  In State of
\nKarnataka v. Vishwabarathi House Building Co-op. Society and
\nOthers, AIR<\/a> 2003 SC 1043, the Court speaking on the
\njurisdiction of the consumer fora held that the provisions of the
\nsaid Act are required to be interpreted as broadly as possible and
\nthe fora under the CP Act have jurisdiction to entertain a
\ncomplaint despite the fact that other fora\/courts would also have
\njurisdiction to adjudicate upon the lis.  These judgments have
\nbeen cited with approval in paras 16 and 17 of the judgment in
\nSecretary, Thirumurugan Cooperative Agricultural Credit
\nSociety v. M. Lalitha and Others,<\/a>  (2004) 1 SCC 305.  The trend
\nof the decisions of this Court is that the jurisdiction of the
\nconsumer forum should not and would not be curtailed unless
\nthere is an express provision prohibiting the consumer forum to
\ntake up the matter which falls within the jurisdiction of civil
\ncourt or any other forum as established under some enactment.
\nThe Court had gone to the extent of saying that if two different
\nfora have jurisdiction to entertain the dispute in regard to the
\nsame subject, the jurisdiction of the consumer forum would not
\nbe barred  and the power of the consumer forum to adjudicate
\nupon the dispute could not be negated.\n<\/p>\n
18.\t    The submission of the learned counsel for the respondent
\nis that the claim made by the appellant before the consumer
\nforum raises a dispute in regard to damages for negligence of
\ndoctors in the ESI hospital\/dispensary and would tantamount to
\nclaiming benefit and the amount under the ESI Act provisions and
\nwould fall within clause (e) of Section 75(1) and, therefore, it is
\nthe Employees’ Insurance Court alone which has the jurisdiction
\nto decide it.  We are afraid that we cannot agree with the
\nsubmission made by the learned counsel.   Section 75 provides for
\nthe subjects on which the jurisdiction shall be exercised by the
\nEmployees’ Insurance Court.  Clause (e) of Section 75(1) gives
\npower to the Employees’ Insurance Court to adjudicate upon the
\ndispute  of the right of any person to any benefit and as to the
\namount and duration thereof.  The benefit which has been
\nreferred to, has a reference to the benefits under the Act, i.e.,
\nthe ESI Act.   The Employees’ State Insurance (Central) Rules,
\n1950 (hereinafter referred to as “the Rules”) have been framed
\nin exercise of the powers under Section 95 of the ESI Act.  Rule
\n56 provides for maternity benefits, Rule 57 for disablement
\nbenefits, Rule 58 for dependents’ benefits, Rule 60 for medical
\nbenefits to insured person who ceases to be in an insurable
\nemployment on account of permanent disablement and Rule 61 for
\nmedical benefits to retired insured persons.   Thus, these are the
\nbenefits which are provided under the Rules to the employees and
\nthe ex-employees for which claim can be made in the Employees’
\nInsurance Court.  The appellant’s claim has no relation to any of
\nthe benefits which are provided in the Rules for which the claim
\ncan  be made in the Employees’ Insurance Court.  The appellant’s
\nclaim is for damages for the negligence on the part of the ESI
\nhospital\/dispensary and the doctors working  therein.\n<\/p>\n
19.\t   A bare perusal of the provisions of clauses (a) to (g) of
\nSection 75(1) clearly shows that it does not include claim for
\ndamages for medical negligence, like the present case which we
\nare dealing with.   Although the question does not directly arise
\nbefore us, we shall consider what in the ordinary course shall
\nconstitute negligence.\n<\/p>\n
20.\t  This Court has considered the principles of the law on
\nnegligence in Jacob Mathew v. State of Punjab and Another,<\/a>
\n(2005) 6 SCC 1.  The jurisprudential concept of negligence defies
\nany precise definition.  Eminent jurists and leading judgments
\nhave assigned various meanings to negligence.  The concept as has
\nbeen acceptable to Indian jurisprudential thought is well-stated
\nin the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by
\nJustice G.P. Singh).  It is stated (at pp. 441-442) :\n<\/p>\n
“Negligence is the breach of a duty caused by the
\nomission to do something which a reasonable man,
\nguided by those considerations which ordinarily
\nregulate the conduct of human affairs would do, or
\ndoing something which a prudent and reasonable man
\nwould not do.  Actionable negligence consists in the
\nneglect of the use of ordinary care or skill towards a
\nperson to whom the defendant owes the duty of
\nobserving ordinary care and skill, by which neglect the
\nplaintiff has suffered injury to his person or property
\n.  the definition involves three constituents of
\nnegligence: (1) A legal duty to exercise due care on the
\npart of the party complained of towards the party
\ncomplaining the former’s conduct within the scope of
\nthe duty; (2) breach of the said duty; and (3)
\nconsequential damage.  Cause of action for negligence
\narises only when damage occurs; for, damage is a
\nnecessary ingredient of this tort.”\n<\/p>\n
Cause of action for negligence arises only when damage occurs
\nand thus the claimant has to satisfy the court on the evidence
\nthat three ingredients of negligence, namely, (a) existence of
\nduty to take care; (b) failure to attain that standard of care; and\n<\/p>\n
(c) damage suffered on account of breach of duty, are present
\nfor the defendant to be held liable for negligence.  Therefore,
\nthe claimant has to satisfy these ingredients before he can claim
\ndamages for medical negligence of the doctors and that could not
\nbe a question which could be adjudicated upon by the Employees’
\nInsurance Courts which have been given specific powers of the
\nissues, which they can adjudicate and decide.  Claim for damages
\nfor negligence of the doctors or the ESI hospital\/dispensary is
\nclearly beyond the jurisdictional power of the Employees’
\nInsurance Court.  An Employees’ Insurance Court has  jurisdiction
\nto decide certain claims which fall under sub-section (2) of
\nSection 75 of the ESI Act.  A bare reading of Section 75(2) also
\ndoes not indicate, in any manner, that the claim for damages for
\nnegligence would fall within the purview of the decisions being
\nmade by the Employees’ Insurance Court.\tFurther, it can be
\nseen that any claim arising out of and within the purview of the
\nEmployees’ Insurance Court is expressly barred by virtue of sub-
\nsection (3) to be adjudicated upon by a civil court, but there is no
\nsuch express bar for the consumer forum to exercise the
\njurisdiction even if the subject matter of the claim or dispute
\nfalls within clauses (a) to (g) of sub-section (1) of Section 75 or
\nwhere the jurisdiction to adjudicate upon the claim is vested with
\nthe Employees’ Insurance Court under clauses (a) to (f) of sub-
\nsection (2) of Section 75 if it is a consumer’s dispute falling
\nunder the CP Act.\n<\/p>\n
21.\t     Having considered all these aspects, we are of the view
\nthat the appellant is a consumer within the ambit of Section
\n2(1)(d) of the Consumer Protection Act, 1986 and the medical
\nservice rendered in the ESI hospital\/dispensary by the
\nrespondent Corporation falls within the ambit of Section 2(1)(o)
\nof the Consumer Protection Act and, therefore, the consumer
\nforum has jurisdiction to adjudicate upon the case of the
\nappellant.  We further hold that the jurisdiction of the consumer
\nforum is not ousted by virtue of sub-section (1) or (2) or (3) of
\nSection 75 of the Employees’ State Insurance Act, 1948.\n<\/p>\n
22.\t     For the aforesaid reasons, the appeal is allowed.  The
\nimpugned order is set aside and the matter is remitted back to
\nthe District Consumer Disputes Redressal Forum, Sonepat, for
\ndecision in accordance with law laid down herein.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kishore Lal vs Chairman, Employees State … on 8 May, 2007 Bench: B.N. Agrawal, P.P. Naolekar, Dalveer Bhandari CASE NO.: Appeal (civil) 4965 of 2000 PETITIONER: Kishore Lal RESPONDENT: Chairman, Employees State Insurance Corporation DATE OF JUDGMENT: 08\/05\/2007 BENCH: B.N. AGRAWAL, P.P. NAOLEKAR & DALVEER BHANDARI JUDGMENT: J U D G […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-180808","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKishore Lal vs Chairman, Employees State ... on 8 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kishore-lal-vs-chairman-employees-state-on-8-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kishore Lal vs Chairman, Employees State ... on 8 May, 2007 - 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