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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 M E N T

P.P. NAOLEKAR, J.:

1. The appellant was insured with the respondent-Employees'

State Insurance Corporation (for short "the Corporation") with

Insurance No. 913644. The employee's/appellant's contribution

towards the insurance scheme under the Employees' State

Insurance Act, 1948 (hereinafter referred to as "the ESI Act")

was being deducted regularly from his salary and deposited by his

employer with the Corporation. In 1993, the appellant's wife was

admitted in the ESI dispensary at Sonepat for her treatment for

diabetes. However, the condition of his wife continued to

deteriorate. As alleged by the appellant, there were instances

when the doctors were not available even during emergencies.

Later, the appellant got his wife medically examined in a private

hospital. The tests done revealed that his wife had been

diagnosed incorrectly in the ESI dispensary; and that the

deterioration in the condition of the appellant's wife was a direct

result of the wrong diagnosis. The appellant filed a complaint

under the Consumer Protection Act, 1986 (hereinafter referred

to as "the CP Act") before the District Consumer Disputes

Redressal Forum seeking (i) compensation towards mental agony,

harassment, physical torture, pains, sufferings and monetary loss

for the negligence of the authorities; (ii) direction for removal

of, and improvement in, the deficiencies; and (iii) direction for

payment of interest on the amount of reimbursement bills. The

Corporation through its officers entered appearance and raised

certain preliminary objections, namely, (i) that the complaint

filed is not maintainable in the District Consumer Forum and is

liable to be dismissed as the wife of the complainant was treated

in the ESI dispensary, Sonepat, which is a government dispensary

and the complainant cannot be treated as a consumer; and (ii)

that the complainant is not a consumer within the definition of

`consumer' in the CP Act and he is not entitled to file a complaint

against the ESI dispensary. It was also contended that the

facility of medical treatment in government hospital cannot be

regarded as a `service' hired for consideration, apart from the

other defences raised in the written statement.

2. The District Consumer Forum relied on the ratio of Birbal

Singh v. ESI Corporation, 1993 II CPJ 1028, wherein on a

complaint filed for compensation for being aggrieved by poor

medical attention received by the late wife of the complainant at

an ESI hospital, the Haryana State Commission had held that the

complainants did not come within the ambit of the definition of

`consumer' under the CP Act because of the gratuitous nature of

the medical services provided. On this basis, the District Forum

held that the services rendered by the ESI dispensary are

gratuitous in nature and, therefore, out of the purview of the CP

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Act. Appeal was preferred to the Haryana State Consumer

Disputes Redressal Commission and it was urged by the appellant

that ESI is a scheme of insurance and hence the service

rendered by the Corporation was not gratuitous. The State

Commission relying on the judgment in Birbal Singh (supra) and

Indian Medical Association v. V.P. Shantha and Others, (1995)

6 SCC 651 held that free medical services were not covered by

the CP Act and upheld the judgment of the District Forum.

Appellant preferred a revision before the National Consumer

Disputes Redressal Commission, but the same was also dismissed

in limine. Hence, this appeal by special leave.

3. By second counter affidavit filed in August, 2000, the

respondent-Corporation have also raised the question of the

jurisdiction of a consumer forum. The respondent contended

that by virtue of Section 75 of the ESI Act, the dispute raised

by the appellant is covered and is to be decided by the Employees'

Insurance Court established under Section 74 of the ESI Act

and it being a special Act the jurisdiction of the consumer forum

is ousted.

4. From the decisions rendered by the District Forum, the

State Commission and the National Commission, and the questions

raised by the appellant and the respondent, the question that

falls for our consideration is two-fold:

1. Whether the service rendered by an ESI hospital is

gratuitous or not, and consequently whether it falls within

the ambit of `service' as defined in the Consumer

Protection Act, 1986?

2. Whether Section 74 read with Section 75 of the

Employees' State Insurance Act, 1948 ousts the jurisdiction

of the consumer forum as regards the issues involved for

consideration?

5. It is contended by Shri Dayan Krishnan, the learned counsel

for the appellant, that in the case of Indian Medical Association

(supra) although it was held that the free medical service was not

covered under the CP Act, the very same judgment in conclusion

No. (11) in para 55 includes any medical service given under the

scheme of insurance within the scope of the CP Act and,

therefore, the claim made by the appellant squarely falls within

the jurisdiction of the consumer forum, the appellant being a

consumer and the respondent's dispensary having rendered a

service to him for consideration.

6. At this stage, it would be appropriate to refer to certain

statutory provisions of the Consumer Protection Act, 1986.

`Consumer' is defined in clause (d) and `service' in clause (o) of

Section 2(1) of the CP Act as under:

"2. Definitions.- (1) In this Act, unless the context

otherwise requires, -

xxx xxx xxx

(d) "consumer" means any person who, -

(i) buys any goods for consideration which has

been paid or promised or partly paid and partly

promised, or under any system of deferred

payment and includes any user of such goods

other than the person who buys such goods for

consideration paid or promised or partly paid or

partly promised, or under any system of

deferred payment, when such use is made with

the approval of such person, but does not include

a person who obtains such goods for resale or for

any commercial purpose; or

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(ii) hires or avails of any services for a

consideration which has been paid or promised or

partly paid and partly promised, or under any

system of deferred payment and includes any

beneficiary of such services other than the

person who hires or avails of the services for

consideration paid or promised, or partly paid and

partly promised, or under any system of

deferred payment, when such services are

availed of with the approval of the first

mentioned person but does not include a person

who avails of such services for any commercial

purpose;

Explanation.- For the purposes of this

clause, "commercial purpose" does not include use

by a person of goods bought and used by him and

services availed by him exclusively for the

purposes of earning his livelihood by means of

self-employment;"

xxx xxx xxx

"(o) "Service" means service of any description which

is made available to potential users and includes, but

not limited to, the provision of facilities in connection

with banking, financing, insurance, transport,

processing, supply of electrical or other energy, board

or lodging or both, housing construction,

entertainment, amusement or the purveying of news or

other information, but does not include the rendering

of any service free of charge or under a contract of

personal service;"

7. The definition of `consumer' in the CP Act is apparently

wide enough and encompasses within its fold not only the goods

but also the services, bought or hired, for consideration. Such

consideration may be paid or promised or partly paid or partly

promised under any system of deferred payment and includes any

beneficiary of such person other than the person who hires the

service for consideration. The Act being a beneficial legislation,

aims to protect the interests of a consumer as understood in the

business parlance. The important characteristics of goods and

services under the Act are that they are supplied at a price to

cover the costs and generate profit or income for the seller of

goods or provider of services. The comprehensive definition aims

at covering every man who pays money as the price or cost of

goods and services. However, by virtue of the definition, the

person who obtains goods for resale or for any commercial

purpose is excluded, but the services hired for consideration

even for commercial purposes are not excluded. The term

`service' unambiguously indicates in the definition that the

definition is not restrictive and includes within its ambit such

services as well which are specified therein. However, a service

hired or availed, which does not cost anything or can be said free

of charge, or under a contract of personal service, is not included

within the meaning of `service' for the purposes of the CP Act.

8. A 3-Judge Bench of this Court in Indian Medical

Association (supra) has extensively considered the provisions of

the CP Act and particularly what shall be a `service' within the

meaning of Section 2(1)(o) of the said Act. The Court was

considering whether the service rendered by the doctors would

fall within the purview of the CP Act, it being a service rendered

for the charges; and whether the patients, who are treated by

the doctors, are `consumers' as defined in Section 2(1)(d) of the

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CP Act. The Court said that the definition of `service' in

Section 2(1)(o) can be split into three parts: the main part, the

inclusionary part and the exclusionary part. The main part is

explanatory in nature and defines service to mean service of any

description which is made available to the potential users. The

inclusionary part expressly includes the provision of facilities in

connection with banking, financing, insurance, transport,

processing, supply of electrical or other energy, board or lodging

or both, housing construction, entertainment, amusement or the

purveying of news or other information, whereas the exclusionary

part excludes rendering of any service free of charge or under a

contract of personal service. The exclusionary part in Section

2(1)(o) excludes from the main part service rendered (i) free of

charge; or (ii) under a contract of personal service. The

expression 'contract of personal service' in the exclusionary part

of Section 2(1)(o) must be construed as excluding the services

rendered by an employee to his employer under the contract of

personal service from the ambit of the expression `service'.

There is a distinction between a 'contract of service' and a

`contract for service'. A `contract for service' implies a

contract whereby one party undertakes to render service e.g.

professional or technical service, to or for another in the

performance of which he is not subject to detailed direction and

control and exercises professional or technical skill and uses his

own knowledge and discretion, whereas a `contract of service'

implies relationship of master and servant and involves an

obligation to obey orders in the work to be performed and as to

its mode and manner of performance. A contract of service is

excluded for consideration from the ambit of definition of

`service' in the CP Act, whereas a contract for service is

included. As regards service rendered free of charge under

Section 2(1)(o), the Court held that the medical practitioners,

government hospitals/nursing homes and private hospitals/nursing

homes, who render service without any charge whatsoever to

every person availing of the service would not fall within the

ambit of `service' under Section 2(1)(o) of the Act. The payment

of a token amount for registration purposes only would, however,

not alter the position in respect of such doctors and hospitals,

but the service rendered for which charges are required to be

paid by everybody availing the service would fall within the

purview of the expression `service' as defined in Section 2(1)(o)

of the Act. The Court held that the relationship between a

medical practitioner and a patient carries within it a certain

degree of mutual confidence and trust and, therefore, the

service rendered by the medical practitioners can be regarded as

a service of personal nature, but since there is no relationship of

master and servant between the doctor and the patient the

contract between the medical practitioner and his patient cannot

be treated as a contract of personal service and it is a contract

for service and the service rendered by the medical practitioner

to his patient under such contract is not covered by the

exclusionary part of the definition of `service' contained in

Section 2(1)(o) of the CP Act. In paragraph 55 of the judgment,

the Court summarized its conclusions. We are really concerned in

this case with conclusions Nos. (9), (10), (11) and (12). Conclusion

No. (9) is in regard to the service rendered at a government

hospital/health center/dispensary where no charges whatsoever

are made from any person and they are given free service, which

would not be a service under Section 2(1)(o) of the CP Act.

Conclusion No. (10) lays down that where the service is rendered

at a government hospital/health center/dispensary on payment of

charges and also rendered free of charge, then it would fall

within the ambit of the expression `service'. Conclusion No. (11)

says that if a patient or his relation availed of the service of a

medical practitioner or hospital/nursing home where the charges

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for consultation, diagnosis and medical treatment are borne by

the insurance company, then such service would fall within the

ambit of service. Similarly, under conclusion No. (12), where as a

part of the conditions of service the employer bears the

expenses of medical treatment of an employee and his family

members dependent on him, then the service rendered by a

medical practitioner or a hospital/nursing home would not be

treated to be free of charge and would constitute `service' under

Section 2(1)(o).

9. In the case of Laxman Thamappa Kotgiri v. G.M. Central

Railway & Ors., 2005 (1) Scale 600, where an employee of the

railways had filed a complaint on the ground that his wife had

been negligently treated at a hospital of the Central Railway as a

result of which she had died, the State Commission concluded

that since the hospital had been set up to treat railway

employees predominantly and the service provided was free of

charge it did not come within the definition of `service' under the

CP Act and hence the complaint was not maintainable. On appeal

to the National Commission, the judgment of the State

Commission was upheld and the appeal filed by the employee was

rejected. Thereafter, appeal was preferred to this Court.

Allowing the appeal, this Court in paras 6 and 7 has held as under:

"6. There is no dispute that the Hospital in question

has been set up for the purpose of granting medical

treatment to the Railway employees and their

dependents. Apart from the nominal charges which

are taken from such an employee, this facility is part

of the service conditions of the Railway employees.

V.P. Shantha's case has made a distinction between

non-Governmental hospital/nursing home where no

charge whatsoever was made from any person availing

of the service and all patients are given free service

(vide para 55(6) at page 681) and services rendered at

Government Hospital/Health Centre/Dispensary where

no charge whatsoever is made from any person availing

of the services and all patients are given free service

(vide para 55(9)) on the hand and service rendered to

an employee and his family members by a medical

practitioner or a hospital/nursing home which are

given as part of the conditions of service to the

employee and where the employer bears expenses of

the medical treatment of the employee and his family

members, (paragraph 55(12) on the other. In the first

two circumstances, it would not be free service within

the definition of the Sec. 2(1)(o) of the Act. In the

third circumstance it would be.

7. Since it is not in dispute that the medical

treatment in the said Hospital is given to employees

like the appellant and his family members is part of

the conditions of service of the appellant and that the

Hospital is run and subsidised by the appellants

employer, namely, the Union of India, the appellant's

case would fall within the parameters laid down in

paragraph 55(12) of the judgment in V.P. Shantha's

case and not within the parameters of either para

55(6) or para 55(9) of the said case."

10. Further, the appellant has brought to our notice a judgment

of this Court in the case of Regional Provident Fund

Commissioner v. Shiv Kumar Joshi, (2000) 1 SCC 98, wherein the

Employees' Provident Fund Scheme, 1952, framed under Section 5

of the Employees' Provident Fund Act came for consideration of

the Court and the Court held in para 11 as under:

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" \005

A perusal of the Scheme unambiguously shows that it

is for consideration which is applicable to all those

factories and establishments covered under the Act

and the Scheme who are required to become a member

of the fund under the Scheme. \005 The contribution of

the employee has to be equal to the contribution

payable by the employer in respect of such employee.

The words "in respect of" are significant as they

indicate the liability of the employer to pay his part of

the contribution in consideration of the employee

working with him. But for the employment of the

employee there is no obligation upon the employer to

pay his part of the contribution to the Scheme. The

administrative charges, as required to be paid under

Para 30 of the Scheme are also paid for consideration

of the employee being the member of the Scheme and

for the services rendered under the Scheme. It is

immaterial as to whether such charges are deducted

actually from the wages of the employee or paid by his

employer in respect of the member-employee of the

Scheme working for such employer. \005 It cannot be

held that even though the employee is a member of

the Scheme, yet the employer would only be deemed

to be a consumer for having made payments of the

administrative charges. \005.."

11. It is contended by the learned counsel for the appellant

that the appellant is a member of the insurance scheme applicable

in the establishment where he is serving and, therefore, the

insurance policy which takes care of the medical treatment of the

appellant as well as his dependents which is given in the ESI

hospital/dispensary would be a service falling within the purview

of Section 2(1)(o) of the CP Act. To appreciate this contention of

the learned counsel, it would be necessary to consider the

insurance scheme which is applicable in the establishment under

various provisions of the ESI Act.

12. It is an admitted fact that the appellant's wife was given

treatment in the ESI dispensary at Sonepat. Under Section 38

of the ESI Act, all employees in a factory or establishment where

the Act applies are required to be insured under the insurance

scheme. Section 39 speaks of the contribution which is required

to be paid to the Corporation for the insurance scheme which

shall comprise the contribution payable by the employer and the

contribution payable by the employee. The contribution is

required to be paid at such rates as may be prescribed by the

Central Government. By virtue of Section 40, the principal

employer is liable to pay the contributions, both the employer's

contribution and the employee's contribution, in the first instance

of the employees directly employed by him or by or through an

immediate employer. Sub-section (2) of Section 40 authorises

the principal employer to recover the contribution made for the

employee by deducting the same from the wages of the employee.

Chapter V of the ESI Act deals with benefits. Sub-section (1)

of Section 46 falling within this Chapter contemplates that the

insured persons, their dependents and the persons mentioned

under the Section shall be entitled to the various benefits

referred to in clauses (a) to (f). Clause (e) reads: "medical

treatment for an attendance on insured persons (hereinafter

referred to as medical benefit)". Section 56 is a specific Section

which has reference to the medical benefits available to an

insured person or to his family member whose condition requires

medical treatment and attendance and they shall be entitled to

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receive medical benefit. Under Section 59, the Corporation is

called upon with the approval of the State Government to

establish and maintain in a State such hospitals, dispensaries and

other medical and surgical services as it may think fit for the

benefit of insured persons and, where such medical benefit is

extended, to their families.

13. On a plain reading of the aforesaid provisions of the ESI

Act, it is apparent that the Corporation is 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 expense incurred for the service

rendered in the hospital would be borne from the contributions

made to the insurance scheme by the employer and the employee

and, therefore, the principle enunciated in conclusion No. (11) in

para 55 in the case of Indian Medical Association (supra) 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 the CP Act. It cannot be said to be a free service rendered

by the ESI hospital/dispensary.

14. The service rendered by the medical practitioners of

hospitals/nursing homes run by the ESI Corporation cannot be

regarded as a service rendered free of charge. The person

availing of such service under an insurance scheme of medical

care, whereunder the charges for consultation, diagnosis and

medical treatment are borne by the insurer, such service would

fall within the ambit of `service' as defined in Section 2(1)(o) of

the CP Act. We are of the opinion that the service provided by

the ESI hospital/dispensary falls within the ambit of `service' as

defined in Section 2(1)(o) of the CP Act. ESI scheme is an

insurance scheme and it contributes for the service rendered by

the ESI hospitals/dispensaries, of medical care in its

hospitals/dispensaries, and as such service given in the ESI

hospitals/dispensaries to a member of the Scheme or his family

cannot be treated as gratuitous.

15. We shall now proceed to consider the second question

raised by Shri Vijay K. Mehta, the learned counsel for the

respondent that by virtue of Section 74 read with Section 75,

and particularly Section 75(e), of the ESI Act, the claim made by

the appellant would exclusively fall for decision within the

jurisdiction of the Employees' Insurance Court and that being the

position the consumer forum has no jurisdiction to adjudicate

upon the issue.

16. Relevant portions of Sections 74 and 75 of the ESI Act

are reproduced below:

"74. Constitution of Employees' Insurance Court.-

(1) The State Government shall, by notification in the

Official Gazette, constitute an Employees' Insurance

Court of such local area as may be specified in the

notification.

xxx xxx xxx"

"75. Matters to be decided by Employees' Insurance

Court.- (1) If any question or dispute arises as to \026

(a) whether any person is an employee within the

meaning of this Act or whether he is liable to pay

the employee's contribution, or

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(b) the rate of wages or average daily wages of

an employee for the purpose of this Act, or

(c) the rate of contribution payable by the

principal employer in respect of any employee, or

(d) the person who is or was the principal

employer in respect of any employee, or

(e) the right of any person to any benefit and as

to the amount and duration thereof, or

(ee) any direction issued by the Corporation

under Section 55-A on a review of any payment

of dependants' benefits, or,

(f) [Omitted], or

(g) any other matter which is in dispute between

a principal employer and the Corporation, or

between a principal employer and an immediate

employer, or between a person and the

Corporation or between an employee and a

principal or immediate employer, in respect of

any contribution or benefit or other dues payable

or recoverable under this Act, or any other

matter required to be or which may be decided

by the Employees' Insurance Court under this

Act,

such question or dispute subject to the provisions of

sub-section (2-A) shall be decided by the Employees'

Insurance Court in accordance with the provisions of

this Act.

(2) Subject to the provisions of sub-section (2-

A), the following claims shall be decided by the

Employees' Insurance Court, namely, -

(a) claim for the recovery of contributions from

the principal employer;

(b) claim by a principal employer to recover

contributions from any immediate employer;

(c) (Omitted);

(d) claim against a principal employer under

Section 68;

(e) claim under Section 70 for the recovery of

the value or amount of the benefits received by

a person when he is not lawfully entitled thereto;

and

(f) any claim for the recovery of any benefit

admissible under this Act.

xxx xxx xxx

(3). No Civil Court shall have jurisdiction to

decide or deal with any question or dispute as

aforesaid or to adjudicate on any liability which by or

under this Act is to be decided by a medical board, or

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by a medical appeal tribunal or by the Employees'

Insurance Court."

17. It has been held in numerous cases of this Court that the

jurisdiction of a consumer forum has to be construed liberally so

as to bring many cases under it for their speedy disposal. In the

case of M/s. Spring Meadows Hospital and Another v. Harjol

Ahluwalia and Another, AIR 1998 SC 1801, it was held that the

CP Act creates a framework for speedy disposal of consumer

disputes and an attempt has been made to remove the existing

evils of the ordinary court system. The Act being a beneficial

legislation should receive a liberal construction. In State of

Karnataka v. Vishwabarathi House Building Co-op. Society and

Others, AIR 2003 SC 1043, the Court speaking on the

jurisdiction of the consumer fora held that the provisions of the

said Act are required to be interpreted as broadly as possible and

the fora under the CP Act have jurisdiction to entertain a

complaint despite the fact that other fora/courts would also have

jurisdiction to adjudicate upon the lis. These judgments have

been cited with approval in paras 16 and 17 of the judgment in

Secretary, Thirumurugan Cooperative Agricultural Credit

Society v. M. Lalitha and Others, (2004) 1 SCC 305. The trend

of the decisions of this Court is that the jurisdiction of the

consumer forum should not and would not be curtailed unless

there is an express provision prohibiting the consumer forum to

take up the matter which falls within the jurisdiction of civil

court or any other forum as established under some enactment.

The Court had gone to the extent of saying that if two different

fora have jurisdiction to entertain the dispute in regard to the

same subject, the jurisdiction of the consumer forum would not

be barred and the power of the consumer forum to adjudicate

upon the dispute could not be negated.

18. The submission of the learned counsel for the respondent

is that the claim made by the appellant before the consumer

forum raises a dispute in regard to damages for negligence of

doctors in the ESI hospital/dispensary and would tantamount to

claiming benefit and the amount under the ESI Act provisions and

would fall within clause (e) of Section 75(1) and, therefore, it is

the Employees' Insurance Court alone which has the jurisdiction

to decide it. We are afraid that we cannot agree with the

submission made by the learned counsel. Section 75 provides for

the subjects on which the jurisdiction shall be exercised by the

Employees' Insurance Court. Clause (e) of Section 75(1) gives

power to the Employees' Insurance Court to adjudicate upon the

dispute of the right of any person to any benefit and as to the

amount and duration thereof. The benefit which has been

referred to, has a reference to the benefits under the Act, i.e.,

the ESI Act. The Employees' State Insurance (Central) Rules,

1950 (hereinafter referred to as "the Rules") have been framed

in exercise of the powers under Section 95 of the ESI Act. Rule

56 provides for maternity benefits, Rule 57 for disablement

benefits, Rule 58 for dependents' benefits, Rule 60 for medical

benefits to insured person who ceases to be in an insurable

employment on account of permanent disablement and Rule 61 for

medical benefits to retired insured persons. Thus, these are the

benefits which are provided under the Rules to the employees and

the ex-employees for which claim can be made in the Employees'

Insurance Court. The appellant's claim has no relation to any of

the benefits which are provided in the Rules for which the claim

can be made in the Employees' Insurance Court. The appellant's

claim is for damages for the negligence on the part of the ESI

hospital/dispensary and the doctors working therein.

19. A bare perusal of the provisions of clauses (a) to (g) of

Section 75(1) clearly shows that it does not include claim for

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damages for medical negligence, like the present case which we

are dealing with. Although the question does not directly arise

before us, we shall consider what in the ordinary course shall

constitute negligence.

20. This Court has considered the principles of the law on

negligence in Jacob Mathew v. State of Punjab and Another,

(2005) 6 SCC 1. The jurisprudential concept of negligence defies

any precise definition. Eminent jurists and leading judgments

have assigned various meanings to negligence. The concept as has

been acceptable to Indian jurisprudential thought is well-stated

in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by

Justice G.P. Singh). It is stated (at pp. 441-442) :

"Negligence is the breach of a duty caused by the

omission to do something which a reasonable man,

guided by those considerations which ordinarily

regulate the conduct of human affairs would do, or

doing something which a prudent and reasonable man

would not do. Actionable negligence consists in the

neglect of the use of ordinary care or skill towards a

person to whom the defendant owes the duty of

observing ordinary care and skill, by which neglect the

plaintiff has suffered injury to his person or property

\005. the definition involves three constituents of

negligence: (1) A legal duty to exercise due care on the

part of the party complained of towards the party

complaining the former's conduct within the scope of

the duty; (2) breach of the said duty; and (3)

consequential damage. Cause of action for negligence

arises only when damage occurs; for, damage is a

necessary ingredient of this tort."

Cause of action for negligence arises only when damage occurs

and thus the claimant has to satisfy the court on the evidence

that three ingredients of negligence, namely, (a) existence of

duty to take care; (b) failure to attain that standard of care; and

(c) damage suffered on account of breach of duty, are present

for the defendant to be held liable for negligence. Therefore,

the claimant has to satisfy these ingredients before he can claim

damages for medical negligence of the doctors and that could not

be a question which could be adjudicated upon by the Employees'

Insurance Courts which have been given specific powers of the

issues, which they can adjudicate and decide. Claim for damages

for negligence of the doctors or the ESI hospital/dispensary is

clearly beyond the jurisdictional power of the Employees'

Insurance Court. An Employees' Insurance Court has jurisdiction

to decide certain claims which fall under sub-section (2) of

Section 75 of the ESI Act. A bare reading of Section 75(2) also

does not indicate, in any manner, that the claim for damages for

negligence would fall within the purview of the decisions being

made by the Employees' Insurance Court. Further, it can be

seen that any claim arising out of and within the purview of the

Employees' Insurance Court is expressly barred by virtue of sub-

section (3) to be adjudicated upon by a civil court, but there is no

such express bar for the consumer forum to exercise the

jurisdiction even if the subject matter of the claim or dispute

falls within clauses (a) to (g) of sub-section (1) of Section 75 or

where the jurisdiction to adjudicate upon the claim is vested with

the Employees' Insurance Court under clauses (a) to (f) of sub-

section (2) of Section 75 if it is a consumer's dispute falling

under the CP Act.

21. Having considered all these aspects, we are of the view

that the appellant is a consumer within the ambit of Section

2(1)(d) of the Consumer Protection Act, 1986 and the medical

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service rendered in the ESI hospital/dispensary by the

respondent Corporation falls within the ambit of Section 2(1)(o)

of the Consumer Protection Act and, therefore, the consumer

forum has jurisdiction to adjudicate upon the case of the

appellant. We further hold that the jurisdiction of the consumer

forum is not ousted by virtue of sub-section (1) or (2) or (3) of

Section 75 of the Employees' State Insurance Act, 1948.

22. For the aforesaid reasons, the appeal is allowed. The

impugned order is set aside and the matter is remitted back to

the District Consumer Disputes Redressal Forum, Sonepat, for

decision in accordance with law laid down herein.