LegalCrystal – Blog

WHAT IS MEDICAL NEGLIGENCE?  KINDLY KNOW THE DIFFERENCE BETWEEN CONTRACT OF SERVICE AND CONTRACT FOR SERVICE, AND WHETHER ESI HOSPITALS RENDER FREE SERVICES?  CAN AN EMPLOYEE FILE A CASE AGAINST ESI IN CONSUMER REDRESSAL FORUM FOR DEFICIENCY IN MEDICAL SERVICES?

[The article below is based on citation: 2007(4) AIR Kar R 267 a SUPREME COURT DECISION- judgment delivered by : B.N.AGRAWAL, P.P.NAOLEKAR AND DALVEER BHANDARI]

In the following case , several useful points under Consumer Protection Act are discussed which is a very useful precedent for such future disputes.

This is a case between one Kishori Lal and Chairman, ESI Corporation.

Mr. Kishori lals 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 him, 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 his wife was a direct result of the wrong diagnosis.

Mr. Kishori lal filed a Complaint under the Consumer Protection 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 deficiencies and (iii) direction for payment of interest on the amount of reimbursement bills.

The Employees State Insurance 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  Mr.Kishorilal was treated in the ESI dispensary, Sonepat, which is a government dispensary and he cannot be treated as a Consumer and (ii) that Mr.Kishorilal is not a Consumer within the definition of Consumer in the Consumer Protection 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 defenses raised in the written statement.

And the Corporation contended that by virtue of Section 75 of the ESI Act the dispute raised by Mr.Kishorilal 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.

Dear Readers, just look at the real fight/great ordeal the poor Complainant had!

The District Consumer Forum relied on the decision in Birbal Singh V/s 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 Consumer Protection 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 Consumer Protection Act.

Appeal was preferred by Kishori lal 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 relying on one more citation Indian Medical Association V/s V.P.Shantha and Others,(1995) 6 SCC 651 held that free Medical services were not covered by the Consumer Protection Act and upheld the judgment of the District Forum.

The Appellant Mr. Kishorilal preferred a revision before the National Consumer Disputes Redressal Commission, but the same was also dismissed in limine.

HENCE, this appeal by special leave ( SUPREME COURT) by Mr.Kishorilal:

The Hon’ble Supreme Court felt: From the decisions rendered by the District Forum, the State Commission and the National Commission and the questions raised by the appellant(Mr.Kishori lal) and the respondent(ESI Corporation), the question that falls for our consideration is two fold: 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? 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?

Its about using identical trade name -INFRINGEMENT OF TRADEMARK!

Please be aware WHEN THE GOODS ARE DIFFERENT, END USERS ARE DIFFERENT AND THE CHANNELS OF MARKETING ARE DIFFERENT  IT CANNOT BE ALLEGED THAT THE ONE PARTY USING SAME TRADE NAME HAS INFRINGED THE TRADEMARK OF THE OTHER!

In the instant case justice Nagmohan das of Karnataka High Court has made this point very clear in his judgement [2009(5) AIR Kar R 431]

M/s Paragon Rubber Industries had filed an Original Suit against one M/s Paragon Steels(P) Ltd., stating that M/s Paragon Rubber Industries is a registered partnership firm carrying on its business in the manufacture and sale of footwear and allied products under the registered trademark Paragon. They have exclusive rights over the registered trademark Paragon. And therefore they are entitled to protect the mark from misuse by any other person.  And the said firm, by spending a huge sum of money popularized the registered trademark Paragon and the same has acquired reputation, goodwill and a distinctive character representing the firm’s products.And which they are using since 1975. In the month of December 2006, it came to their notice that Paragon Steels by adopting the word Paragon which is identical to their registered mark had entered into the market to encash the reputation and good will of the trademark. And this act of M/s Paragon Steels amounts to infringement of Trade Mark.

It filed an Original Suit[2035/2007] for a decree of permanent injunction restraining M/s Paragon Steels from infringement with M/s Paragon Rubber Industries trademark, particularly the word Paragon to render true accounts, to pay damages and for other reliefs. And M/s Paragon Rubbers had also filed an Interim Application(IA) No.II for grant of temporary injunction restraining M/s Paragon Steels from using their registered trademark Paragon for sale of the products. Particularly steel rods.

M/s Paragon Steels entered appearance before the Trial Court, filed written statement contending that M/s Paragon Rubber Industries are not the owners of trademark Paragon.  And they are using the word Paragon for the sale of their product, that is twisted steel rods from the year 1983 and M/s Paragon Rubbers have slept over their rights for all these years and as such they are barred by acquiescence.  And further contended that the word Paragon is a dictionary word and they cannot claim exclusive right over the said word.  And the M/s Paragon Rubber is using the mark in respect of the footwear and rubber products.  On the other hand the Paragon Steels are using the word paragon in respect of steel rods and therefore there is no infringement of trade mark as alleged by the Paragon Rubbers.

The Trial Court held that the trademark of Paragon Rubbers is a well known mark and therefore the Paragon Steels by adopting the same have infringed the trademark.  The trial court further held that on account of infringement of trade mark the Paragon Rubbers  are put to irreparable loss and injury.  Consequently the trial court granted temporary injunction as prayed in I.A.II and restrained the Paragon Steels from using the trademark word ”Paragon” till the disposal of the Suit.

Aggreived by the above order of the trial court the Paragon steels approached the Hon’ble High Court in M.F.A.No.11547 of 2008 dt.24/6/2009 for an order to set aside the order of the trial court and for dismissal of the I.A.II.

After hearing both sides and considering the documents produced by both the sides the Hon’ble High Court observed The suit was filed before the trial Court on 12/03/2007.There is no valid registration certificate of the trademark of the M/s Paragon Rubbers as on the date of filing of the suit. The trial Court noticed that the Counsel submitted that the registration of the trademark is renewed and the same will be produced in due process of time.But M/s Paragon Rubbers has not produced any such renewal certificate either before the trial Court or before this Court. The trial court committed mistake in holding that M/s Paragon Rubbers have made out a prima facie case in the absence of any documentary evidence showing they possess valid registration certificate of the trade mark in question as on the date of filing of the suit.Further Section 27 of the Trade Marks Act specifies that no person shall be entitled to institute any proceedings to prevent or to recover damages for the infringement of  unregistered trademark. In the event of trade mark being not renewed, when it becomes due in accordance with the provisions of the Act, the person in whose name the trade mark stood registered, cannot claim that he is the registered trade mark owner.

And held that, goods traded and manufactured under the trade name Paragon by M/s Paragon Rubbers is in respect of rubber products, footwear and its allied parts. On the other hand M/s Paragon Steels are trading and manufacturing twisted steel rods. The goods are different, end users are different and the channels of marketing are different.

M/s Paragon Steels must have sold its goods or offered its services in a manner which has deceived or would likely to deceive the public into thinking that M/s Paragon Steels goods or services are of the M/s Paragon Rubbers. The action of passing off depend upon the proof of volume of sales, extent of advertisement, turnover, misrepresentation by M/s Paragon Steels, malafide intention on the part of M/s Paragon Steels, the confusion to the public and the loss suffered by M/s Paragon Rubbers. At this stage there is no prima facie evidence on record to show M/s Paragon Steels are intentionally misrepresenting, public are confused and that M/s Paragon Rubbers have suffered loss. No hardship or loss will be caused to M/s Paragon Rubbers if temporary injunction is refused, but on the other hand M/s Paragon Steels will be put to great hardship and loss if an injunction order is granted. Hence Miscellaneous First Appeal of M/s Paragon Steels was allowed. Impugned order was setaside I.A.No2 dismissed  with a direction,The trial court to proceed with the matter in accordance with law and as expeditiously as possible without being influenced by any of the observations made in the impugned order. All contentions are left open.

Dear Readers, I have written the above article based on the above citation to make the Court judgements-readers friendly and to make the common man aware of the myriad Court procedures, the stages and turns each fight takes.  For a more detailed reading, readers may go through the above citation in detail.