Indian
Medical Association Vs. V.P. Shantha & Ors [1995] INSC 669 (13 November 1995)
Agrawal, S.C. (J) Agrawal, S.C. (J) Kuldip Singh (J) Hansaria B.L.
(J) S.C. Agrawal, J. :
CITATION:
1996 AIR 550 1995 SCC (6) 651 JT 1995 (8) 119 1995 SCALE (6)273
ACT:
HEAD NOTE:
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'].
In Dr.
A.S. Chandra v. Union of India, (1992) 1 Andhra Law Times 713, a Division Bench
of Andhra Pradesh High Court has held that service rendered for consideration
by private medical practitioners, private hospitals and nursing homes must be
construed as 'service' for the purpose of Section 2(1)(d) of the Act and the
persons availing such services are 'consumers' within the meaning of Section
2(1)(d) of the Act.
In Dr.C.S.
Subramanian v. Kumarasamy & Anr., (1994) 1 MLJ 438, a Division Bench of the
Madras High Court has, however, taken a different view. It has been held that
the 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 a hospital by
way of diagnosis and treatment, both medical and surgical, cannot be considered
to be a `consumer' within the meaning of Section 2(1)(d) of the Act; but the
medical practitioners or hospitals undertaking and providing paramedical
services of all kinds and categories cannot claim similar immunity from the
provisions of the Act and that they would fall, to the extent of such para-medical
services rendered by them, within the definition of `service' and a person
availing of such service would be a `consumer' within the meaning of the Act. C.A.Nos.
4664- 65/94 and Civil Appeal arising out of SLP(C) No. 21775/94 filed by the
complainants and Civil Appeals arising out of SLP(C) Nos. 18445-73/94 filed by
the Union of India are directed against the said judgment of the Madras High
Court.
The
National Commission by its judgment and order dated December 15, 1989 in First Appeal No.2 of 1989 has held that persons who
avail themselves of the facility of medical treatment in Government hospitals
are not "consumers" and the said facility offered in the Government
hospitals cannot be regarded as service "hired" for "consideration".
It has been held that the payment of direct or indirect taxes by the public
does not constitute "constitute "consideration" paid for hiring
the services rendered in the Government hospitals. It has also been held that
contribution made by a Government employee in the Central Government Health
Scheme or such other similar Scheme 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 judgment dated April 21, 1992
was followed by the National Commission in its judgment dated November 16, 1992
in First Appeal No. 97 of 1991 [Dr. Sr. Louie & Anr. v. Smt. Kannolil Pathumma
& Anr.]. SLP No. 351/93 has been filed by Josgiri Hospital and Nursing Home against the said
judgment of the National Commission.
By
judgment dated May 3,
1993 in O.P.No. 93/92,
the National Commission has held that since the treatment that was given to the
complainant's deceased husband in the nursing home belonging to the opposite
party was totally free of any charge, it did not constitute `service' as
defined under the Act and the complainant was not entitled to seek any relief
under the Act. C.A.No. 254/94 has been filed by the complainant against the
said judgment of the National Commission.
Writ
Petition No. 16 of 1994 has been filed under Article 32 of the Constitution by
Cosmopolitan Hospital (P) Ltd., and Dr. K. Venogopolan Nair [petitioners in
SLP(C) Nos. 6885 and 6950/92] wherein the said petitioners have assailed the
validity of the provisions of the Act, insofar as they are held to be
applicable to the medical profession, as being violative of Articles 14 and
19(1)(g) of the Constitution.
Shri K.Parasaran,
Shri Harish Salve, Shri A.M. Singhvi, Shri Krishnamani and Shri S.Balakrishnan
have addressed the court on behalf of the medical profession and the hospitals
and Shri Rajeev Dhavan has presented the case of the complainants. Before we
proceed to deal with their contentions we would briefly take note of the
background and the scheme of the Act.
On April 9, 1985, the General Assembly of the United
Nations, by Consumer Protection Resolution No. 39/248, adopted the guidelines
to provide a framework for Governments, particularly those of developing
countries, to use in elaborating and strengthening consumer protection policies
and legislation. The objectives of the said guidelines include assisting
countries in achieving or maintaining adequate protection for their population
as consumers and encouraging high levels of ethical conduct for those engaged
in the production and distribution of goods and services to the consumers. The
legitimate needs which the guidelines are intended to meet include the
protection of consumers from hazards to their health and safety and
availability of effective consumer redress. Keeping in view the said
guidelines, the 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 those contained in Section 115
CPC in relation to a consumer dispute pending before or decided by a District
Forum [Section 17(b)] and the National Commission has similar revisional
jurisdiction in respect of a consumer dispute pending before or decided by a
State Commission.
[Section
21(b)]. Further, there is a provision for appeal to this Court from an order
made by the National Commission on a complaint or on an appeal against the
order of a State Commission. [Section 23]. By virtue of the definition of
complainant in Section 2(1)(c), the Act affords protection to the consumer
against unfair trade practice or a restricitive trade practice adopted by any
trader, defect in the goods bought or agreed to be bought by the consumer,
deficiency in the service hired or availed of or agreed to be hired or availed
of by the consumer, charging by a trader price in excess of the price fixed by
or under any law for the time being in force or displayed on the goods or any
package containing such goods and offering for sale to public, goods which will
be hazardous to life and safety when used, in contravention of the provisions
of any law for the time being in force requiring traders to display information
in regard to the contents, manner and effect of use of such goods. The
expression "complainant", as defined in Section 2(1)(b), is
comprehensive to enable the consumer as well as any voluntary consumer
association registered under the Companies Act, 1956 or under any other law for
the time being in force, or the Central Government or any State Government or one
or more consumers where there are numerous consumers having the same interest,
to file a complaint before the appropriate Consumer Disputes Redressal Agency
and the consumer dispute raised in such complaint is settled by the said agency
in accordance with the procedure laid down in Section 13 of the Act which
prescribes that the District Forum [as well as the State Commission and the
National Commission] shall have the same power as are vested in a civil court
under the Code of Civil Procedure in respect of summoning and enforcing
attendance of any defendant or witness and examining the witness on oath;
discovery
and production of any document or other material object producible as evidence;
the reception of evidence on affidavits; the requisitioning of the report of
the concerned analysis or test from the appropriate 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 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 service 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.
Explanation. - Omitted" "Section 2(1)
(o) : "service" means service of any description which is made
available to the potential users and 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, but
does not include rendering of any service free of charge or under a contract of
personal service;" The words "or avails of" after the word
"hires" in Section 2(1)(d)(ii) and the words "housing
construction" in Section 2(1)(o) were inserted by the Act 50 of 1993.
The
definition of `service' in Section 2(1)(o) of the Act can be split up 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 of other
energy, board or lodging or both housing construction, entertainment, amusement
or the purveying of news or other information. The exclusionary part excludes
rendering of any service free of charge or under a contract of personal
service.
The
definition of `service' as contained in Section 2(1)(o) of the Act has been
construed by this Court in Lucknow Development Authority v. M.K. Gupta, 1994
(1) SCC 243. After pointing out that the said definition is in three parts, the
Court has observed :
"The
main clause itself is very wide. It applies to any service made available to
potential users. The words `any ' and `potential' are significant. Both are of
wide amplitude. The word `any' dictionarily means; one or some or all', In
Black's Law Dictionary it is explained thus, "word `any' has a diversity
of meaning and may be employed to indicate `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 proceeded on complete misapprehension of the purpose of Act and even
its explicit language. In fact the Act requires provider of service to be more
objective and caretaking." (p.256) Referring to the inclusive part of the
definition it was said :
"The
inclusive clause succeeded in widening its scope but not exhausting the
services which could be covered in earlier part. so any service except when it
is free of charge or under a constraint of personal service is included in
it." [p.257] In that case the Court was dealing with the question whether
housing construction could be regarded as service under Section 2(1)(o) of the
Act. While the matter was pending in this Court, "housing
construction" was inserted in the inclusive part by Ordinance No. 24 of
1993. Holding that housing activity is a service and was covered by the main
part of the definition, the Court observed :
".....
the entire purpose of widening the definition is to include in it not only day
to day buying and selling activity undertaken by a common man but even such
activities which are otherwise not commercial in nature yet they partake of a
character in which some benefit is conferred on the consumer." [p.256] In
the present case the inclusive part of the definition of "service" is
not applicable and we are required to deal with the questions falling for
consideration in the light of the main part and the exclusionary part of the
definition. The exclusionary part will require consideration only if it is
found that in the matter of consultation, diagnosis and treatment a medical
practitioner or a hospital/nursing home renders a service falling within the
main part of the definition contained in Section 2(1) (o) of the Act. We have,
therefore, to determine whether medical practitioners and hospitals/nursing
homes can be regarded as rendering a "service" as contemplated in the
main part of Section 2(1)(o). This determination has to be made in the light of
the aforementioned observations in Lucknow Development Authority (supra). We
will first examine this question in relation to medical practitioners.
It has
been contended that in law there is a distinction between a profession and an
occupation and that while a person engaged in an occupation renders service
which falls within the ambit of Section 2(1)(o) the service rendered by a
person belonging to a profession 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 vary from time to time. The word `profession' used to be
confined to the three learned professions, the Church, Medicine and Law. It has
now, I think, a wider meaning". [See : Commissioners of Inland Revenue v. Maxse,
1919 1 K.B. 647 at p.657].
According
to Rupert M. Jackson and John L.Powell the occupations which are regarded as
professions have four characteristice, viz.,
i) the
nature of the work which is skilled and specialized and a substantial part is
mental rather than manual;
ii) commitment
to moral principles which go beyond the general duty of honesty and a wider
duty to community which may transcend the duty to a particular client or patient;
iii) professional
association which regulates admission and seeks to uphold the standards of the
profession through professional codes on matters of conduct and ethics; and
iv) high
status in the community.
The
learned authors have stated that during the twentieth century an increasing
number of occupations have been seeking and achieving "professional"
status and that this has led inevitably to some blurring of the features which
traditional distinguish the professions from other occupations. In the context
of the law relating to Professional Negligence the learned authors have
accorded professional status to seven specific occupations, namely,
(i)
architects, engineers and quantity surveyors,
(ii) surveyors,
(iii) accountants,
(iv) solicitors,
(v) barristers,
(vi) medical
practitioners and
(vii) insurance
brokers.
[See :
Jackson & Powell on Professional Negligence, paras 1-01 and 1-03, 3rd
Ed.1.].
In the
matter of professional liability professions differ from other occupations for
the reason that professions operate in spheres where success cannot be achieved
in every case and very often success or failure depends upon factors beyond the
professional man's control.
In
devising a rational approach to professional liabilty which must provide proper
protection to the consumer while allowing for the factors mentioned above, the
approach of the courts is to require that professional men should possess a
certain minimum degree of competence and that they should exercise reasonable
care in the discharge of their duties. In general, a professional man owes to
his client a duty in tort as well as in contract to exercise reasonable care in
giving advice or performing services. [See : Jackson & 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 solace to the person who has suffered due to their
negligence and the right of such person to seek redress is not affected.
Referring
to the changing position with regard to the relationship between the medical
practitioners and the patients in the United Kingdom, it has been said :
"Where,
then, does the doctor stand today in relation to society? To some extent, he is
a servant of the public, a public which is widely (though not always well)
informed on medical matters. Society is conditioned to distrust paternalism and
the modern medical practitioner has little wish to be paternalistic. The new
talk is of `producers and consumers' and the concept that `he who pays the
piper calls the tune' is established both within the profession and in its
relationships with patients. The competent patient's inalienable rights to
understand his treatment and to accept or refuse it are now well established."
(pp.16-17) "Consumerism is now firmly established in medical practice -
and this has been encouraged on a wide scale by government in the United Kingdom through the introduction of
`charters'. Complaint is central to this ethos - and the notion that blame must
be attributed, and compensated, has a high priority." (p.192) [Mason &
McCall Smith Law and Medical Ethics,4th Edn.] In Arizona v. Maricopa County Medical Society, 457 US
332 = 73 L.Ed. (2d) 48, two Arizona county medical societies formed two
foundations for medical care to promote fee-for- service medicine and to
provide the community with a competitive alternative to existing health
insurance plans and by agreement amongst the doctors established the schedule
of maximum fees that participating doctors agreed to accept as payment in full
for services performed for patients insured under plans. It was held that the
maximum fee agreement, as price fixing agreements, are perse unlawful under the
Sherman Act. It was observed :
"Nor
does the fact doctors - rather than non-professionals - are the parties to the
price fixing agreements support the respondents' position. ... The respondents
claim for relief from the per se rule is simply that the doctors' agreement not
to charge certain insureds more than a fixed price facilitates the successful
marketing of an attractive insurance plan. But the claim that the price
restraint will make it easier for customers to pay 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) has been
used in the same sense as `avails of' as would be evident from the words `when
such services are availed of' in the latter part of Section 2(1)(d)(ii). By
inserting the words `or avails of' after the word `hires' in Section
2(1)(d)(ii) by the Amendment Act of 1993, Parliament has clearly indicated that
the word `hires' has been used in the same sense as `avails of'. The said
amendment only clarifies what was implicit earlier. The word `use' also means
`to avail oneself of'.
[See :
Black's Law Dictionary, 6th Edn., at p. 1541]. The word `user' in the
expression `which is made available to potential users' in the definition of
`service' in Section 2(1)(o) has to be construed having regard to the definition
of `consumer' in Section 2(1)(d)(ii) and, if so construed, it means `availing
of services'. From the use of the word `potential users' it cannot, therefore,
be inferred that the services rendered by medical practitioners are not
contemplated by Parliament to be covered within the expression `service' as
contained in Section 2(1)(o).
Shri Harish
Salve has also placed reliance on the definition of the expression `deficiency'
as contained in Section 2(1)(g) of the Act which provides as follows :
"Section
2(1)(g) : "deficiency" means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is required
to be maintained by or under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service;" The submission of Shri Salve is that under
the said clause the deficiency with regard to fault, imperfection, shortcoming
or inadequacy in respect of service has to be ascertained on the basis of
certain norms relating to quality, nature and manner of performance and that
medical services rendered by a medical practitioner cannot be judged on the
basis of any fixed norms and, therefore, a medical practitioner cannot be said
to have been covered by the expression "service" as defined in
Section 2(1)(o). We are unable to agree. While construing the scope of the
provisions of the Act in the context of deficiency in service it would be
relevant to take note of the provisions contained in Section 14 of the Act
which indicate the reliefs that can be granted on a complaint 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 Bethlem Royal Hospital, 1985 AC 871]. In Bolam
(supra) McNair J has said :
"But
where you get a situation which involves the use of some special skill or
competence, then the test as to whether there has been negligence or not is not
the test of the man on the top of a Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary skilled man
exercising and professing to have that special skill. A man need not possess
the highest expert skill; it is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent man exercising that
particular art." [p.586] In an action for negligence in tort against a
surgeon this Court, in Laxman Balakrishna Joshi v. Trimbak Bapu Godbole & Anr.,
1969 (1) SCR 206, has held :
"The
duties which a doctor owes to his patieint are clear. A person who holds
himself out ready to give medical advice and treatment impliedly undertakes
that he is possessed of skill and knowledge for the purpose. Such a person when
consulted by a patient owes him certain duties, viz., a duty of care in
deciding whether to undertake the case, a duty of care in deciding what
treatment to give or a duty of care in the administration of that treatment. A
breach of any of those duties gives a right of action for negligence to the
patient. The practitioner must bring to his task a reasonable degree of skill
and knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law require. [p.213] It is,
therefore, not possible to hold that in view of the definition of
"deficiency" as contained in Section 2(1)(9) medical partitioners
must be treated to be excluded from the ambit of the Act and the service
rendered by them is not convered under Section 2(1)(o).
Another
contention that has been urged by learned counsel appearing for the medical
profession to exclude medical practitioners from the ambit of the Act is that
the composition of the District Forum, the State Commission and the national
Commission is such that they cannot fully appreciate the complex issues which
may arise for determination and further that the procedure that is followed by
these bodies for determination of issues before them is not suitable for the
determination 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, commerce, accountancy, industry, public affairs or
administration, and one of them shall be a woman. The composition of the
National Commission is governed by Section 20 of the Act which provides that
the President of the Commission shall be a person who is or who has been a
Judge of the Supreme Court to be appointed by the Central Government after consulation
with the Chief Justice of India and four other 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,
commerce, accountancy, industry, public affairs or administration and one of
them shall be a woman. It will thus be seen that the President of the District
Forum is required to be a person who is or who has been or is qualified to be a
District Judge and the President of the State Commission is required to be a
person who is or who has been the judge of the High Court and the President of
the national Commission is required to be a person who is or who has been a
Judge of the Supreme Court, which means that all the Consumer Disputes Redressal
Agencies are headed by a person who is well versed in law and has considerable
judicial or legal experience. It has, however, been submitted that in case there
is difference of opinion, the opinion of the majority is to prevail and,
therefore, the President may be out-voted by the other membrs and that there is
no requirement that the membrs should have adequate knowledge or experience in
dealing with problems relating to medicine. It is no doubt true that the
decisions of the District Forum as well as the State Commission and the
National Commission have to be taken by majority and it may be possible in some
cases that the President may be in minority. But the presence of a person well
versed in law as the President will have a bearing on the deliberations of
these Agencies and their decisions. As regards the absence of a requirement
about a member having adequate knowledge or experience in dealing with the problems
relating to medicine it may be stated that the persons to be chosen as members
are required to have knowledge and experience in dealing with problems relaing
to various fields connected with the object and purpose of the Act, viz.,
protection and interests of the consumers. The said knowledge and experience
would enable them to handle 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 experties in
the field to which the goods or services in respect of which complaint is
filed, are related. It will be for the parties to place the necessary material
and the knowledge and experience which the members will have in the fields
indicated in the Act would enable them to arrive at their findings on the basis
of that material. It cannot, therefore, be said that since the members of the
Consumer Disputes Redressal Agencies are not required to have knowledge and
experience in medicine, they are not in a position to deal with issues which
may arise before them in proceedings arising out of complaints about the
deficiency in service rendered by medical partitioners.
Discussing
the role of lay persons in decision making, Prof. White has referred to two
divergent views. One view holds that lay adjudicators are superior to
professional judges in the application of general standars of conduct, in their
notions of reasonableness, fairness and good faith and that they act as `an
antidote against excessive technicality' and `some guarantee that the law does
not diverge too far from reality'. The other view, however, is that since they
are not experts, lay decision makers present a very real danger that the
dispute may not be resolved in accordance with the prescribed rules of law and
the adjudication of claims may be based on whether the claimant is seen as
deserving rather than on the legal rules of entitlement. Prof. White has
indicated his preference for a Tribunal composed of a lawyer, as Chairman, and two
lay members. Such a Tribunal, according to Prof. White, would present an
opportunity to develop a model of adjudication that combines the merits of lay
decision making with legal competence and participation of lay membrs would
lead to general public confidence in the fairness of the process and widen the
social experience represented by the decision makers. Prof. White says that
apart from their breadth of experience, the key role of lay members would be in
ensuring that procedures do not become too full of mystery and ensure that
litigants before them are not reduced to passive spectators in a process
designed to resolve their disputes.
[See :
Prof. Robin C.A. White : The Administration of Justice, 2nd Edition, P. 345].
In the
matter of constituion of the District Forum, the State Commission and the
National Commission the Act combines with legal 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 allegations contained in the complaint, or (ii) on the basis of
evidence brought to its notice by the complainant where the opposite party
omits or fails to take any action to represent his case within the time given
by the Forum. In Section 13(4) of the Act it is further provided that the
District Forum shall have the same powers as are vested in the civil court
under the Code of Civil procedure while trying a suit in respect of the
following matters:
"(i)
the summoning and enforcing attendance of any defendant or witness and
examining the witness on oath;
(ii) the
discovery and production of any document or other material object producible as
evidence;
(iii) the
reception of evidence on affidavits;
(iv) the
requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source;
(v) issuing
of any commission for the examination of any witness and (vi) any other matter
which may be prescribed." The same provisions apply to proceedings before
the State Commission and the National Commission. It has been urged that
proceedings involving negligence in the matter of rendering services by a
medical parctitioner would arise complicated questions requiring evidence of
experts to be recorded and that the procedure which is followed for
determination of consumer disputes under the Act is summary in nature involving
trial on the basis of affidavits and is not suitable for determination of
complicated questions. It is no doubt true that sometimes complicate questions
requiring recording of evidence of expets may arise in a complaint about
deficiency in service based on the ground of negligence in rendering medical
services by a medical parctitioner; but this would not be so in all complaints
about deficiency in rendering services by a medical practitioner. There may be
cases which do not raise such complicated questions and the deficiency in
service may be due to obvious faults which can be easily established such as
removal of the wrong limb or the performance of an operation on the wrong
patient or giving injection of a drug to which the patient is allergic without
looking into the out patient card containing the warning [as in Chinkeow v.
Government of Malaysia, (1967) 1 WLR 813 P.C.] or use of wrong gas during the
course of an anesthetic or leaving inside the patient swabs or other items 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 Section 2(1)(0) of the Act.
Keeping
in view the wide amplitude of the definition of `service' in the main part of
Section 2(1)(o) as construed by this Court in Lucknow Development Authority
(supra), we find no plausible reason to cut down the width of that part so as
to exclude the services rendered by a medical practitioner from the ambit of
the main part of Section 2(1)(o).
We may
now proceed to consider the exclusionary part of the definition to see whether
such service is excluded by the said part. The exclusionary part excludes from
the main part service rendered (i) free of charge; or (ii) under a contract of
personal service.
Shri
Salve has urged that the relationship between a medical practitioner and the
patient is of trust and confidence and, therefore, it is in the nature of a
contract of personal service and the service rendered by the medical
practitioner to the patient is not `service' under Section 2(1)(o) of the Act.
This contention of Shri Salve ignores the well recognised distinction between a
`contract of service' and a `contract for services'. [See : Halsbury's Laws of
England, 4th Edn., Vol. 16, para 501; Dharangadhara Chemical Works Ltd. v.
State of Saurashtra, 1957 SCR 152 at p. 157]. A `contract for services' implies
a contract whereby one party undertakes to render services e.g.
professional
or technical services, to or for another in the performance of which he is not
subject to detailed direction and control but exercises professional or
technical skill and uses his own knowledge and discretion. [See : Oxford
Companion to Law, P. 1134]. 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. [See : Stroud's
Judicial Dictionary, 5th Edn., P. 540; Simmons v. Heath Laundry Co. (1910) 1
K.B. 543; and Dharangadhara Chemical Works (supra) at p. 159]. We entertain no
doubt that Parliamentary draftsman was aware of this well accepted distinction
between "contract of service" and "contract for services"
and has deliberately chosen the expression `contract of service' instead of the
expression `contract for services', in the exclusionary part of the definition
of `service' in Section 2(1)(o). The reason being that an employer cannot be
regarded as a consumer in respect 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
exclusionary part of the definition of `service' contained in Section 2(1)(o)
of the Act.
Shri
Rajeev Dhavan has, however, submitted that the expression `contract of personal
service' contained in Section 2(1)(o) of the Act has to be confined to
employment of domestic servants only. We do not find any merit in this
submission. The expression `personal service' has a well known legal
connotation and has been construed in the context of the right to seek
enforcement of such a contract under the Specific Relief Act. For that purpose
a contract of personal service has been held to cover a civil servant, the
managing agents of a company and a professor in the University. [See : The High
Commissioner for India v. I.M.Lall, (1948) L.R. 75 I.A.
225; Ram Kissendas Dhanuka v. Satya Charan Law, (1949) L.R. 77 I.A. 128; and
Dr. S.B. Dutt v. University of Delhi, 1959 SCR 1236]. There can be a contract of personal
service if there is relationship of master and servant between a doctor and the
person availing his services and in that event the services rendered by the
doctor to his employer would be excluded from the purview of the expression
`service' under Section 2(1)(o) of the Act by virtue of the exclusionary clause
in the said definition.
The
other part of exclusionary clause relates to services rendered "free of
charge". The medical practitioners, Government hospitals/nursing homes and
private hospitals/nursing homes (hereinafter called "doctors and
hospitals") broadly fall in three categories :- i) where services are
rendered free of charge to everybody availing the said services.
ii) where
charges are required to be paid by everybody availing the services and iii)
where charges are required to be paid by persons availing services but certain
categories of persons who cannot afford to pay are rendered service free of
charges.
There
is no difficulty in respect of first two categories.
Doctors
and hospitals who render service without any charge whatsoever to every person
availing 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 not alter the position in respect of such
doctors and hospitals. So far as the second category is concerned, since the
service is rendered on payment basis to all the persons they would clearly fall
within the ambit 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 ethical
conduct for those engaged in the protection and distribution of goods and
services to the consumers". The protection that is envisaged by the Act
is, therefore, protection for consumers as a class. The word "users"
(in plural), in the phrase `potential users' in Section 2(1) (o) of the Act
also gives an indication that consumers as a class are contemplated. The
definition of `complainant' contained in Section 2(b) of the Act which
includes, under clause (ii), any voluntary consumer association, and clauses
(b) and (c) of Section 12 which enable a complaint to be filed by any recognised
consumer association or one or more consumers where there are numerous
consumers, having the same interest, on behalf of or for the benefit of all
consumers so interested, also lend support to the view that the Act seeks to
protect the interests of consumers as a class. To hold otherwise would mean
that the protection of the Act would be available to only those who can afford
to pay and such protection would be denied to those who cannot so afford,
though they are the people who need the protection more. It is difficult to
conceive that the legislature intended to achieve such a result. Another
consequence of adopting a construction, which would restrict the protection of
the Act to persons who can afford to pay for the services availed by them and
deny such protection to those who are not in a position to pay for such
services, would be that the standard and quality of service rendered at an
establishment would cease to be uniform. It would be of a higher standard and
of better quality for persons who are in a position to pay for such service
while the standard and quality of such service would be inferior for person who
cannot afford to pay for such service and who avail the service without
payment. Such a consequence would defeat the object of the Act. All persons who
avail the services by doctors and hospitals in category (iii), are required to
be treated on the same footing irrespective of the fact that some of them pay
for the service and others avail the same free of charge. Most of the doctors
and hospitals work on commercial lines and the expenses incurred for providing
services free of charge to patients who are not in a position to bear the
charges are met out of the income earned by such doctors and hospitals from
services rendered to paying patients. The 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 not 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 service free of charge
because the said medical officer receives amoluments by way of salary for
employment in the hospital. There is no merit in this contention. the medical
officer who is employed in the hospital renders the service on behalf of the
hospital administration and if the service, as rendered by the hospital, does
not fall within the ambit of Section 2(1) (o), being free of charge, the same service
cannot be treated as service under Section 2(1) (o) for the reason that it has
been rendered by a medical officer in the hospital who receives salary for
employment in the hospital.
There
is no direct nexus between the payment of the salary to the medical officer by
the hospital administration and the person to whom service is rendered. The
salary that is paid by the hospital administration to the employee medical
officer cannot be regarded as payment made on behalf of the person availing the
service or for his benefit so as to make the person availing the service a
"consumer" under Section 2(1) (d) in respect of the service rendered
to him. the service rendered by the employee medical officer to such a person
would, therefore, continue to be service rendered free of charge and would be
outside the purview of Section 2(1)(o).
A
contention has also been raised that even in the 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 taxes
paid by the tax payers. We do not agree.
The
essential characteristics of a tax are that (i) it is imposed under statutory
power without the taxpayer's consent and the payment is enforced by law; (ii)
it is an imposition made for public purpose without reference to any special
benefit to be conferred on the payer of the tax' and (iii) it is part of the
common burden, the quantum of imposition upon the tax payer depends generally
upon his capacity to pay. [See : The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar
of Sri Shirur Mutt, 1954 SCR 1005 at pp.1040-41]. The tax paid by the person
availing the service at a Government 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 charge and would, therfore,
fall within the ambit of the expression `service' in Section 2(1) (o) of the
Act. So also there may be cases where as a part of the conditions of service
the employer bears the expense of medical treatment of the employee and his
family members dependent on him. The service rendered to him by a medical
practitioner would not be free of charge and would, therefore, constitute
service under Section 2(1) (o).
Shri
A.M. Singh vi has invited our attention to the following observations of Lord
Denning M.R. in White house v. Jordan & Anr., (1980) 1 All.E.R. 650 :
"Take
heed of what has happened in the United States, 'Medical malpractice' cases there are very worrying,
especially as they are tried by juries who have sympathy for the patient and
none for the doctor, who is insured. The damages are colossal. The doctors
insure but the premiums become very high : and these have to be passed on in
fees to the patients. Experienced practitioners are known to have refused to
treat patients for fear of being accused of negligence. Young men are even
deterred from entering the profession because of the risks involved. In the intersts
of all, we must avoid such consequences in England. Not only must we avoid excessive damages. We must say, and say firmly,
that, in a professional man, an error of judgment is not negligent."
[p.658] Relying on these observations learned counsel has painted a grim
picture that if medical practitioners are brought within the purview of the Act
the consequence 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 safeguards against frivolous and vexatious complaints and consequent
blackmail. We do not entertain such an apprehension. In the first place, it may
be stated that the aforementioned observations of Lord Denning were made in the
context of substantive law governing actions for damages on the ground of
negligence against medical practitioners.
There
too the last sentence in the said observations that "an error of judgment
is not negligent" has not been approved, in appeal, by the House of Lords.
[See : 1981 (1) All. E.R. 267]. By holding that medical practitioners fall
within the purview of the Act no change is 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
service rendered by medical practitioners or at hospitals/nursing homes to seek
redress.
The
conditions prevailing in India cannot, therefore, be compared with
those in England and in the United States.
As
regards the criticism of the American malpractice litigation by the British
judiciary it has been said :
"Discussion
of these important issues is sometimes clouded by an over-simplistic comparison
between England and American
"malpractice" litigation. Professor Miller noted in 1986 that
malpractice claims were brought in the United States nearly 10 times as often as in England, and that this is due to a complex
combination of factors, including cultural differences, judicial attitudes,
differences in the legal system and the rules about costs. She points to the
deterrent value of malpractice litigation and resent some of the criticisms of
the American system expressed by the British judiciary.
Interestingly,
in 1989 the number of medical negligence claims and the size of medical
malpractice insurance premiums started to fall in New York, California and many other states. It is thought that this is due in
part to legislation in a number of states limiting medical malpractice claims,
an in part to improved patient care as a result of litigation."[Jackson
& Powe] not Professional Liability, 3rd Edn., para 6-25, p. 466] Dealing
with the present state of medical negligence cases in the United Kingdom it has been observed :
"The
legal system, then, is faced with the classic problem of doing justice to both
parties. The fears of the medical profession must be taken into account while
the legitimate claims of the patient cannot be ignored.
Medical
negligence apart, in practice, the courts are increasingly reluctant to
interfere in clinical matters. What was once perceived as a legal threat to
medicine has disappeared a decade later.
While
the court will accept the absolute right of a patient to refuse treatment, they
will, at the same time, refuse to dictate to doctors what treatment they should
give. Indeed, the fear could be that, if anything, the pendulum has swung too
far in favour of therapeutic immunity. "[p. 16] "It would be a
mistake to think of doctors and hospitals as easy targets for the dissatisfied
patient. It is still very difficult to raise an action of medical negligence in
Britain; some, such as the Association 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 compensation. This loss may be continuing
and what may seem like an unduly large award may be little more than that sum
which is required to compensate him for such matters as loss of future earnings
and the future cost of medical or nursing care. To deny a legitimate claim or
to restrict arbitrarily the size of an award would amount to substantial
injustice. After After all, there is no difference in legal theory between the
plaintiff injured through medical negligence and the plaintiff injured in an
industrial or motor accident." [pp. 192-93] [Mason's Law and Medical
Ethics, 4th Edn.] We are, therefore, not persuaded to hold that in view of the
consequences indicated by Lord Denning in Whitehouse v. Jorden (supra) medical
practitioners should be excluded from the purview of the Act.
On the
basis of the above discussion we arrive at the following conclusions:
(1)
Service rendered to a patient by a medical practitioner (except where the
doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of 'service' as defined in
Section 2(1) (o) of the Act.
(2)
The fact that medical practitioners belong to the medical profession and are
subject to the disciplinary control of the Medical Council of India and/or State
Medical Councils constituted under the provisions of the Indian Medical Council
Act would not exclude the services rendered by them from the ambit of the Act.
(3) A
'contract of personal service' has to be distinguished from a 'contract for
personal services'. In the absence of a relationship of master and servant
between the patient and medical practitioner, the service rendered by a medical
practitioner to the patient cannot be regarded as service rendered under a
'contract of personal service'. Such service is service rendered under a
`contract for personal services' and is not covered by exclusionary clause of
the definition of 'service' contained in Section 2(1) (o) of the Act. (4) The
expression 'contract of personal service' in Section 2(1) (o) of the Act cannot
be confined to contracts for employment of domestic servants only and the said
expression would include the employment of a medical officer for the purpose of
rendering medical 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 of the expression 'service' as defined in Section 2(1) (o) of the Act.
(8)
Service rendered at a non-Government hospital/Nursing home where charges are
required to be paid by persons who are in a position to pay and persons who
cannot afford to pay are rendered service free of charge would fall within the
ambit of the expression 'service' as defined in Section 2(1) (o) of the Act
irrespective of the fact that the service is rendered free of charge to persons
who are not in a position to pay for such services. Free service, would also be
"service" and the recipient a "consumer" under the Act.
(9)
Service rendered at a Government hospital/health centre/dispensary where no
charge whatsoever is made from any person availing the services 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.
(10)
Service rendered at a Government hospital/health centre/dispensary where
services are rendered on payment of charges and also rendered free of charge to
other persons availing such services would fall within the ambit of the
expression 'service' as defined in Section 2(1) (o) of the Act irrespective of
the fact that the service is rendered free of charge to persons who do not pay
for such service.
Free
service would also be "service" and the recipient a
"consumer" under the Act.
(11)
Service rendered by a medical practitioner or hospital/nursing home cannot be
regarded as service rendered free of charge, if the person availing the service
has taken an insurance policy for medical care whereunder the charges for
consultation, diagnosis and medical treatment are borne by the insurance
company and such service would fall within the ambit of 'service' as defined in
Section 2(1) (o) of the Act.
(12)
Similarly, 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, the service rendered to such an employee and his family
members by a medical practitioner or a hospital/nursing home would not be free
of charge and would constitute 'service' under Section 2(1) (o) of the Act.
In
view of the conclusions 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 defined in Section 2(1) (o) of the
Act. The Tribunal has not considered the question whether services are rendered
free of charge to all the patients availing services in the said nursing home
or such services are rendered free of charge only to some of the patients and
are rendered on payment of charges to the rest of the patients. Unless it is
found that the services are rendered free of charge to all the patients
availing services at the nursing home, it cannot be held that the said services
do not constitute 'service' as defined in Section 2(1) (o) of the Act. Civil
Appeal No. 254/94 has, therefore, to be allowed and the matter has to be
remitted to the National Commission for consideration in the light of this
judgment.
The
judgment of the Madras High Court in Dr. C.S. Subramaniam v. Kumaraswamy & Anr.
(supra), holding that the services rendered to a patient by a medical
practitioner or a hospital by way of diagnosis and treatment, both medicinal
and surgical, would not come within the definition of 'service' in Section 2(1)
(o) and a patient who undergoes treatment under a medical practitioner or 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 cannot be sustained and Civil Appeals Nos. 4664-65/94 as well as Civil
Appeals arising out of S.L.P.(Civil) Nos. 21775/94 and 18445-73/94 have to be
allowed and the said judgment of the Madras High Court has to be set aside and
the writ petitions disposed of by the said judgment have to be dismissed. The
judgment of the National Commission dated December 15, 1989 in First Appeal No.
2 of 1989 holding that services rendered in Government hospitals are not
covered by the expression 'service' as defined in Section 2(1) (o) of the Act
cannot be upheld in its entirety but can be upheld only to the extent as
indicated in conclusion No. 9. Civil Appeal arising out of S.L.P. (Civil) No.
18497/93 has to be allowed and the complaint has to be remitted to the State
Commission for consideration in the light of this judgment. S.L.P.(Civil) Nos.
21348-21349/93 have been filed against the judgment of the Kerala High Court
dated October 6,1993 in Writ Petitions filed on behalf of the hospitals claiming
that the services rendered by the hospitals do not fall within the ambit of
Section 2(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 found
that the provisions of the Act are applicable to deficiency in service rendered
by medical practitioners and hospitals and for the same reason the said prayer
cannot be allowed. the other prayer sought for in the Writ Petition regarding
the validity of the provisions of the Act is also without any substance. The
ground on which the writ petitioners are seeking to assail the validity of the
provisions of the Act is that the composition of the Consumer Disputes Redressal
Agencies and the procedure to be followed by the said Agencies is such that it
is not suitable for adjudication of the complex issues arising for
consideration. We have already considered this grievance urged on behalf of the
medical profession and have found that the composition of the Consumer Disputes
Redressal Agencies as well as the procedure to be followed by them does not
preclude a proper adjudication of the consumer disputes arsing out of
complaints relating to deficiency in service rendered by medical practitioners
and hospitals. 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.
In the
result Civil Appeals Nos. 688/93 and 689/93, and S.L.P. (Civil) Nos. 6885/92
and 6950/92 are dismissed. The State Commission will deal with the complaints
in the light of this judgment. S.L.P.[Civil] Nos. 351/93 and 21348- 21349/93
and Writ Petition (Civil) Nos. 16/94 are also dismissed. Civil Appeal No.
254/94 is allowed and the judgment of the National Commission dated May 3, 199 is set aside and O.P.No. 93/92 is remitted to the
National Commission for consideration in the light of this judgment.
Civil
Appeals Nos. 4664-65/94 and Civil Appeals arising out of S.L.P. (Civil) Nos.
21755/94 and 18445-73/94 are allowed and the judgment of the Madras High Court
dated February 17, 1994 is set aside and the writ petitions disposed of by the
said judgment of the High Court are dismissed and as a result the Consumer
Disputes Redressal Agencies would deal with the complaint petitions covered by
those writ petitions in the light of this judgment. Civil Appeal arising out of
S.L.P. (Civil) No. 18497/93 is alos allowed and Complaint Case No. 1 of 1988 is
remitted to the State Commission for consideration in the light of this
judgment. No order as to costs.
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