9911796707
TMI Blog1995 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... hra 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 descr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduction 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 profe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceed 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... termining 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 bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 practit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 laims 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 malp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tandards 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 abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
