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TMI Blog1995 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... pitals. In our opinion, on case is made out that the Act suffers from the vice of arbitrariness or unreasonableness so as to be violative of Articles 14 and 19(1)(g) of the Constitution. There is, therefore, no merit in the Writ Petition and it has to be dismissed. - C.A. 688 OF 1993 - - - Dated:- 13-11-1995 - KULDIP SINGH, AGRAWAL, S.C. AND HANSARIA B.L., JJ. JUDGMENT: S.C. AGRAWAL, J. : Leave granted in SLP (C) Nos. 18497/93 and 21755/94. Delay condoned and leave granted in SLP (C) Nos. 18445- 73/94. These appeals, special leave petitions and the Writ Petition raise a common question, viz., whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act']. Connected with this question is the question whether the service rendered at a hospital/nursing home can be regarded as 'service' under Section 2(1)(o) of the Act. These questions have been considered by various High Courts as well as by the National Consumer Disputes Redressal Commission [hereinafter referred to as 'the National Commission'] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not make him a consumer within the meaning of the Act. Civil Appeal arising out of SLP(C) No.18497/93 has been filed by Consumer Unity Trust Society, a recognised consumer association, against this judgment of the National Commission. By judgment dated April 21, 1992 in First Appeal Nos. 48 and 94 of 1991, the National Commission has held that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression `service' as defined in Section 2(1)(o) of the Act and that 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. It has also been 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. C.A. Nos. 688/93 and 689/93 filed by the Indian Medical Association and SLP (C) Nos. 6885 and 6950/92 filed by M/s Cosmopolitan Hospital are directed against the said judgment of the National Commission. The said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act was enacted by Parliament to provide for the better protection of the interests of consumers and for that purpose to make provision for the establishment of consumers councils and other authorities for the settlement of consumers' disputes and for matters connected therewith. The Act sets up a three-tier structure for the redressal of consumer grievances. At the lowest level, i.e., the District level, is the Consumer Disputes Redressal Forum known as `the District Forum'; at the next higher level, i.e., the State level, is the Consumer Disputes Redressal Commission known as `the State Commission' and at the highest level is the National Commission. [Section 9]. The jurisdiction of these three Consumer Disputes Redressal Agencies is based on the pecuniary limit of the claim made by the complainant. An appellees to the State Commission against an order made by the District Forum [Section 15] and an appeal lies to the National Commission against an order made by the State Commission on a complaint filed before it or in an appeal against the order passed by the District Forum. [Section 19]. The State Commission can exercise revisional powers on grounds similar to tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate laboratory or from any other relevant source; issuing of any commission for the examination of any witness; and any other matter which may be prescribed. Section 14 makes provisions for the nature of reliefs that can be granted to the complainant on such a complaint. The provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. [Section 3]. In this group of cases we are not concerned with goods and we are only concerned with rendering of services. Since the Act gives protection to the consumer in respect of service rendered to him, the expression service in the Act has to be construed keeping in view the definition of consumer in the Act. It is, therefore, necessary to set out the definition of the expression `consumer' contained in Section 2(1)(d) insofar as it relates to services and the definition of the expression `service' contained in Section 2(1)(o) of the Act. The said provisions are as follows : Section 2(1)(d) consumer means any person who, - (i) omitted (ii) hires [or avails of] any services for a consideration which has been paid or promised or partly paid and partly pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `all' or `every' as well as `some' or `one' and its meaning in a given statue depends upon the context and the subject- matter of the statute . The use of the word `any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word `potential' is again very wide. In Oxford Dictionary it is defined as `capable of coming into being, possibility'. In Black's Law Dictionary it is defined existing in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalments or payments on a contract or engagement already made. In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users. [p.255] The contention that the entire objective of the Act is to protect the consumer against malpractices in business was rejected with the observations : The argument proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n does not fall within the ambit of the said provision and, therefore, medical practitioners who belong to the medical profession are not covered by the provisions of the Act. It has been urged that medical practitioners are governed by the provisions of the Indian Medical Council Act, 1956 and the Code of Medical Ethics made by the Medical Council of India, as approved by the Government of India under Section 3 of the Indian Medical Council Act, 1956 which regulates their conduct as members of the medical profession and provides for disciplinary action by the Medical Council of India and/or State Medical Councils against a person for professional misconduct. While expressing his reluctance to propound a comprehensive definition of a `profession', Scrutton L.J. has said `profession',in the present use of language involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the operator, as distinguished from an occupation which is substantially the production or sale or arrangement for the production or sale of commodities. The line of demarcation may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Powell (supra), paras 1-04, 1-05 and 1-56]. Immunity from suit was enjoyed by certain profession on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now even for them the filed is limited to work done in court and to a small category of pre-trial work which is directly related to what transpires in court. [See : Jackson Powell, (supra), para 1-66; Saif Ali v. Sidney Mitchell Co., (1980) 1 A.C. 198; Rees v. Sinclair (1974) 1 N.Z.L.R. 180; Giannarelli v. Wraith (1988) 81 A.L.R. 417]. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care. It would thus appear that medical practitioners, though belonging to the medical profession, are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council of India and/or State Medical Councils is no solac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay does not distinguish the medical profession from any other provider of goods or services. [pp. 348-49, 61-62] We are, therefore, unable to subscribe to the view that merely because medical practitioners belong to the medical profession they are outside the purview of the provisions of the Act and the services rendered by medical practitioners are not covered by Section 2(1)(o) of the Act. Shri Harish Salve, appearing for the Indian Medical Association, has urged that having regard to the expression `which is made available to potential users' contained in Section 2(1)(o) of the Act., medical practitioners are not contemplated by parliament to be covered within the provisions of the Act. He has urged that the said expression is indicative of the kind of service the law contemplates, namely, service of an institutional type which is really a commercial enterprise and open and available to all who seek to avail thereof. In this context, reliance has also been placed on the word 'hires' in sub-clause (ii) of the definition of `consumer' contained in Section 2(1)(d) of the Act. We are unable to uphold this contention. The word `hires' in Section 2(1)(d)(ii) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint filed under the Act. In respect of deficiency in service, the following reliefs can be granted : i) return of the charges paid by the complainant. [Clause c)] ii) payment of such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. [Clause (d)] iii) removal of the defects or deficiencies in the services in question. [Clause (e)] Section 14(1)(d) would, therefore, indicate that the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the opposite party. A determination about deficiency in service for the purpose of Section 2(1)(g) has, therefore, to be made by applying the same test as is applied in an action for damages for negligence. The standard of cara which is required from medical practitioners as laid down by McNair J. in his direction to the jury in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, has been accepted by the House of Lords in a number of cases. [See : Whitehouse v.Jordan, 1981 (1) WLR 246; Maynard v. West Midlands, Regional Health Authority, 1984 (1) WLR 634 ; Sidaway v. Governors of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termination of the complicated questions which arise in respect of claims for negligence in respect of the services rendered by medical practitioners. The provisions with regard to the composition of the District Forum are contained in Section 10 of the Act which provides that the President of the Forum shall be a person who is or who has been or is qualified to be a District Judge and the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience or, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. Similarly, with regard to the composition of the State Commission, it is provided in Section 16 of the Act that the President of the Commission shall be a person who is or who has been a Judge of a High Court appointed by the State Government in consulation with the Chief Justice of the High Court and that the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le the consumer disputes coming up before them for settlement in consonance with the requirement of the Act. To say that the members must have adequate knowledge or experience in the field to which the goods or services, in respect of which the complaint is made, are related would lead to impossible situations. At one time there will be two members in the District Forum and they would have knowledge or experience in two fields which would mean that complaints in respect of goods or services relating to other fields would be beyond the purview of the District Forum. Similarly in the State Commission there may be members having knowledge or experience in fields other than the fields in which the members of the District Forum have knowledge or experience. It would mean that the goods or services in respect of which the District Forum can enteration a complaint will be outside the purview of the State Commission. Same will be the position in respect of the National Commission. Since the goods or services in respect of which complaint can be filed under the Act may relate to number of fields it cannot be expected that the members of the Consumer Disputes Redressal Agencies must have exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal competence the merits of lay decision making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers. Moreover, there is a further safeguard of an appeal against the order made by the District Forum to the State Commission and against the order made by the State Commission to the National Commission and a further appeal to this Court against the order made by the National Commission. It cannot, therefore, be said that the composition of the Consumer Disputes Redressal Agencies is such as to render them unsuitable for adjudicating on issues arising in a complaint regarding deficiency in service rendered by a medical partitioner. As regards the procedure to be followed by these agencies in the matter of determination of the issues coming up for consideration it may be stated that under Section 13(2)(b), it is provided that the District Forum shall proceed to settle the consumer disputes (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed which by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression `service'as defined in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the services rendered by his employee in pursuance of a contract of employment. By affixing the adjective `personal' to the word service the nature of the contracts which are excluded is not altered. The said adjective only emphasizes that what is sought to be excluded is personal service only. The expression contract of personal service in the exclusionary part of Section 2(1)(o) must, therefore, 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 . It is no doubt true that the relationship between a medical practitioner and a patient carries within it certain degree of mutual confidence and trust and, therefore, the services rendered by the medical practitioner can be regarded as services 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 but is a contract for services and the service rendered by the medical practitioner to his patient under such a contract is not covered by the exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1) (o) of the Act. The question for our consideration is whether the service rendered to patients fee of charge by the doctors and hospitals in category (iii) is excluded by virtue of the exclusionary clause in Section 2(1) (o) of the Act. In our opinion the question has to be answered in the negative. In this context it is necessary to bear in mind that the Act has been enacted to provide for the protection of the interests of consumers in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985. These guidelines refer to achieving or maintaining adequate protection for their population as consumers and encouraging high levels of ethic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government hospitals may not be commercial in that sense but on the overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently. We are of the view that in such a situation the persons belonging to poor class who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the paying class . We are, therefore, of opinion that service rendered by the doctors and hospitals falling in category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression service as defined in Section 2(1) (o) of the Act. We are further of the view that persons who are rendered free service are the beneficiaries and as such come within the definition of consumer under Section 2(1) (d) of the Act. In respect of the hospitals/nursing homes (Government and non-Government) falling in category (i), i.e., where services are rendered free of charge to everybody availing the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service thogh rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer. Adverting to the individual doctors employed and serving in the hospitals, we are of the view that such doctors working in the hospitals/nursing homes/dispensaries/whether Government or private - belonging to categories (ii) and (iii) above would be covered by the definition of service under the Act and as such are amenable to the provisions of the Act along with the management of the hospital, etc. jointly and severally. There may, however, be a case where a person has taken an insurance policy for medi-care whereunder all the charges for consultation, diagnosis and medical treatment are borne by the insurance company. In such a case the person receiving the treatment is a beneficiary of the service which has been rendered to him by the medical practitioner, the payment for which would be made by the insurance company under the insurance policy. The rendering of such service by the medical practitioner cannot be said to be free of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brought about in the substantive law governing claims for compensation on the ground of negligence and the principles which apply to determination of such a claim before the civil court would equally apply to consumer disputes before the Consumer Disputes Redressal Agencies under the Act. The Act only provides an inexpensive and a speedy remedy for adjudication of such claims. An analytical study of tort litigation in India during the period from 1975 to 1985 made by Prof. Galanter reveals that a total number of 416 tort cases were decided by the High Courts and this Court, as reported in the All India Reporter, out of which 360 cases related to claims under the Motor Vehicles Act and cases relating to medical malpractice were only three in number. [See : Upendra Baxi and Thomes Paul, Mass Disasters and Multinational Liability, The Bhopal Case, PP. 214-218]. One of the factors inhibiting such claims is the requirement regarding court fee that must be paid by the plaintiff in an action for damages on the ground of negligence. Since no court fee is required to be paid on a complaint filed under the Act it would be possible for persons who have suffered injury due to deficiency in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation of the Victims of Medical Accidents, would say that it is unacceptably difficult. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all but the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not. It is difficult to single out any one cause for what increase there has been in the volume of medical negligence actions in the United Kingdom. A common explanation is that there are, quite simply, more medical accidents occurring - whether this be due to increased pressure on hospital facilities, to falling standards of professional competence or, more probably, to the ever-increasing complexity of therapeutic and diagnostic methods. [p. 191] A patient who has been injured by an act of medical negligence has suffered in a way which is recognised by the law - and by the public at large as deserving co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of 'service' as defined in Section 2(1) (o) of the Act. (5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be service as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position. (6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression 'service' as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position. (7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforementioned the judgment of the National Commission dated April 21, 1992 in First Appeal No. 48 of 1991 [M/s Cosmopolitan Hospitals Anr. v. Smt. Vasantha P. Nair] and the judgment dated November 16, 1992 in First Appeal No. 97 of 1991 [Dr. Sr. Louie Anr. v. Smt. Kannolil Pathumma Anr.] holding that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression 'service' as defined in Section 2(1) (o) of the Act and that 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, must be upheld and Civil Appeal Nos. 688/93 and 689/93 and S.L.P. (Civil) Nos. 6885/92, 6950/92 and 351/93 filed against the said judgment have to be dismissed. The National Commission in its judgment dated May 3, 1993 in O.P. No. 93/92 has held that since the treatment that was given to the deceased husband of the complainant in the nursing home belonging to the opposite party was totally free of any charge it does not contitute 'service' as defin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) (o) of the Act. The said Writ Petitions were dismissed by the High Court having regard to the decision of the National Commission in Cosmopolitan Hospital (supra) and the pendency of appeal against the said decision before this Court. Since the decision of the National Commission in Cosmopolitan Hospital (supra) is being upheld by us, S.L.P. (Civil) Nos. 21348-21349/93 have to be dismissed. Writ Petition (Civil) No. 16/94 has been filed by the Cosmopolitan Hospital (P) Ltd. and Dr. K. Venugopalan Nair who have also filed S.L.P. (Civil) Nos. 6885/92 and 6950/92 against the judgment of the National Commission dated April 21, 1992. In the Writ Petition, the said writ petitioners have sought a declaration that the provisions of the Act are not applicable to alleged deficiency in medical service and that if the said provisions are held to be applicable to the medical profession and hospitals the same may be declared as unconstitutional as being violative of Articles 14 and 19(1)(g) of the Constitution. As regards the first part of the prayer regarding the applicabilty of the provisions of the Act to the alleged deficiency in medical service, we have already considered the matter and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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