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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.