Consumer Protection Act. 1986.

Ss. 2(1)(o), (c), (d), (g) and 14-Scope of 'Service' in the light of the definition 'consumer' and other relevant provisions of the Act-Remedy against malpractice or negligence by Medical Practitioners, hospitals and nursing homes in the process of consultation, diagnosis and treatment-Where such medical services are rendered free of charge to everybody availing the services they do not fall under the definition 'service'-But where charges are required to be paid by everybody or payable by those who could afford and not by those who could not such medical service rendered would constitute 'Service'-Payment of token amount for registration purposes cannot be treated as charges-Payment of charges by insurance company or employer for medical services rendered to insured/employee, such services would still fall under 'service' "contract of service'~ "Contract for service''-Difference between-Services rendered by medical practitioners or hospitals or nursing homes-Deficiency in-To be judged by applying the test of reasonable skill and care as applicable in action for damages for negligence. 

Sections 3 and 13-Procedure followed by the Redressal From--Speedy disposal of complaints-Complicated issues requiring recording of evidence of experts-Complainant can be directed to approach Civil Court.

Sections 3, 10, 13, 16 and 2o--Redressal From-Associating non-legal persons having knowledge in other fields connected with the object of the Act-Decision on the basis of majority view-Technical matters arising in complaint regarding deficiency in service-Such members need not be experts in the subject.

Torts:

Negligence or malpractice by Medical Practitioners-Liable for damages-Can be sued in contract-Failure to take reasonable skill and A care-Not immune from liability on the ground that they are subject to disciplinary control under Medical Council Act.

Constitution of India, 1950 :

Article 265-T characteristics of-Expenses of running a government hospital met from Consolidated Fund which is raised from taxes paid by tax payers-'Free of charge' medical services rendered by the hospital to such tax payers-Held, cannot be treated as paid services. Words & Phrases : "Service'~ "Preferential users'~ "made available' "avails of' "Hires" Meaning of-In the context of Consumer Protection Act, 1986. Divergent views had been expressed on the question whether a medical practitioner can be regarded as rendering 'service' under Section 2(i)(o) of the Consumer Protection Act, 1986, and whether the service rendered at the hospital/nursing home can be regarded as 'service' under the said provision. In Writ Petitions filed under Article 226 of the Constitution, the Madras High Court had held that services rendered to a patient by a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of 'service' under Section 2(1)(o) of the Act and a patient who undergoes treatment under a medical practitioner or in a hospital by way of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a 'consumer' within the meaning of Section 2(1)(d) of the Act but para-medical services rendered by them would be within the definition E of 'service' and a person availing of such service would be a 'consumer'.

In proceedings arising out of complaints filed under the Act the National Consumer Disputes Redressal Commission on the other hand, had held that the activity of providing medical assistance for payment carried on by the hospitals and members of the medical profession falls within the expression of 'service' and in the event of any deficiency in the performance of such service, the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction. The National Commission had also held that the legal representatives of the deceased patients who were undergoing treatment in the hospital are consumers under the Act and are competent to maintain the complaint. The National Commission was, however, of the view that if the treatment given in a nursing home was totally free of charge, it did not constitute 'service' under the Act. As regards Government hospitals the National Commission held that persons who avail themselves of the facility of medical treatment in Government hospitals are not consumers and the said facility cannot be regarded as service 'hired' for 'consideration'. It was also ·held that the contribution made by the Government employee in the Central Government Health Scheme or such other similar scheme does not make him 'consumer' within the meaning of the Act . Appeals were filed by the petitioner in the Writ Petitions against the judgment of the Madras High Court as well as various judgments of the National Commission by the complainants as also the members of medical profession and hospitals. A Writ Petition under Article 32 was also filed by a hospital and a medical practitioner wherein the validity of the provisions of the Act was challenged on the ground that the same were violative of the provisions of Articles 14 and 19(1) (g) of the Constitution.

On behalf of the medical profession and the hospitals, the following contentions were urged :- (i) In law there is distinction between a 'profession' and an 'occupation' and while a person engaged in an occupation renders service which falls within the ambit of Section 2(1)(o) of the Consumer Protection Act the service rendered by a person belonging to a profession does not fall within the ambit of the said expression and therefore medical practitioners who belong to the medical profession are not covered under the provisions of the Act. (ii) In view of the words 'potential user· in Section 2(1) (o) and the word 'hires' in Section 2(1)(d)(ii) medical practitioners are not contemplated by Parliament to be covered by the provisions of the Act. (iii) Having regard to the definition of 'deficiency' in Section 2(1)(g), a medical practitioner is excluded from the definition of 'service' because medical services rendered by a medical practitioner cannot be judged on the basis of any fixed norms. (iv) The relationship between a medical practitioner and the A patient is of trust and confidence and therefore it is in the nature of a contract of personal service and it is excluded from the ambit of 'service' by the exclusionary clause in Section 2(1)(o). The composition of the District Consumer Redressal Forum, the State Consumer Disputes Redressal Commission and the National Commission and the procedure to be followed by these agencies is such that it is not suitable for determination of the complex questions which may arise in respect of claims for negligence in respect of services rendered by medical practitioners. (vi) If the provisions of the Act are so construed as being applicable to the medical profession and hospitals then the same are violative of the provisions of Articles 14 and 19(l)(g) of the Constitution of India. (vii) lf the medical profession is brought within the purview of the Act, the consequences would be huge increase in medical expenditure on account of insurance charges as well as tremendous increase in defensive medicine and that medical practitioners may refuse to attend to medical emergencies and there will be no safeguard against frivolous and vexatious complaints and consequent blackmail.

Refuting the abovesaid contentions, the complainants submitted :- (i) The expression "Contract of personal service" in Section 2(1)(o) is confined to employment of domestic servants only and does not include the employment of a medical officer. (ii) Even though the service rendered at a hospital, being free of charge, does not fall within the ambit of Section 2(1)(o) in so G far as the hospital is concerned, the said service would fall within the ambit of Section 2(1)(o) since it is rendered by a medical officer employed in the hospital who is not rendering the services free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. (iii) Even in Government hospitals/health centres/dispensaries where services are rendered free of charge to all the patients, the provisions of the Act shall apply because the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the tax paid by the tax payers.