Date : 13th November,1995
Bench : Agarwal , S.C. (J)
Kuldip Singh (J)
Hansaria B . L . (J)
The special leave petition and the Writ petition was filed in this case raise a common question as to whether and if so, in what circumstanceswhat , circumstances, a medical practitioner can be regarded as rendering ‘service’ under Section 2(1)(oo) of the Consumer Protection Act,1986. The interesting question that arose in this case was whether the medical profession (doctors, hospitals, nursing homes etc.) fall within the purview of the Consumer Protection Act. To file a claim under the Act, a person has to be a ‘consumer’, that is, a person who buys goods or hires or avails the of services.
Issues raised :
The Supreme Court bench consisting of Justices Kuldip Singh, S. C. Agarwal and B . L. Hansaria , were under:
Whether a medical practitioner can be regarded as rendering ‘service’ as defined under Section 2 (1) (o) of the Consumer Protection Act, 1986?
Whether the services rendered at a hospital or nursing home can be regarded as ‘ service’ as defined in the Act?
The term “ service” is defined by S. 2(1)(o) of the act o mean service of any description which is made available to the potential users. The term includes, but is not limited to, the insurance, transport, processing, supply construction , entertainment, amusement or purveying of news or any other information. However, the term does not include the rendering of any services free of charge, or the rendering of any service under a contract of personal service. Simply stated, the question isif of vital importance , because if the answer is in the affirmative , the patient would be regarded as a ‘ consumer’ and would be entitled to file a claim against the doctor in a consumer court.
The argument advanced by the medical profession before the Supreme Court can be summed up as under:
Doctors render professional services under a ‘ contract of services’, whose which term is expressly excluded fromform the definition of ‘service’ as given above.
Doctors are already subject to possible disciplinary action of the Indian Medical Council and State Medical Councils.
Negligent doctors are also liable under the law of torts and under the Indian Penal Code.
Consumer court judgesjudge are not trained in medical science, and hence, may not be able to do full justice in medical cases.
If the sword of the consumer litigation hangs over a doctor, he would not be able to discharge his medical obligations efficiently.
Consumer cases against doctors are usually given a lot of publicity in the media, thus putting an unnecessary strain on the doctors.
Often, false and frivolous complaints are filed against doctors and hospitals – sometimes, promoted and/or encouraged by a rival doctor or hospital.
The Supreme Court rejected the above contention and held that doctors, hospitals and nursing homes do render a ‘service’ as defined in the Act and they would therefore be liable under the Consumer Protection Act – unless such service is rendered free of cost, and as that is expressly excluded by the Act. Advocates representing the medical profession strongly argued that a physician or a surgeon is always chosen because of his personal skill, qualification , reputation and the faith which a patient has in him. Since the contract of personal service is not defined in the Act, the patient cannot be said to have availed of any service. Therefore, he is He is therefore not a ‘consumer’ and cannot file a claim under the Act. While rejecting this Supreme court drew a fine line of distinction between a contract of personal service and a contract for personal service. The court admitted that the relationship between a doctor and his patient is a contract in the eyes of law.
The court observed that this was a contractwas contract for personal services. What was excluded by the definition is a contract of personal services, as for instance, a master-servant relationship between two persons. The proposition laid down by the court in this case may be summed up as under:
1. Service rendered to a patient by a doctor by the way of consultation, diagnosis and treatment, both medicine and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act- except where the doctor renders service free of charge.
2 . The fact that medical practitioners are subject to the disciplinary control of the Medical council of India and/or State Medical Councils would not exclude the services rendered by them form the ambit of the Act.
3 . In absence of a relationship of master and servant between the patient and a doctor the services rendered by him to a patient cannot be regarded as service rendered under contract of personal service. Such service is a service rendered under a ‘contract for personal service’ which is not excluded under above definition.
4 . The expression ‘contract of personal service’ as used in the Act would cover contracts for employment of servants and include employment of medical officers for rendering medical service to the employer. The service rendered by a medicalby medical officer to the employer fallsfall under scope of contract of employment and would be outside the purview of the act.
5 . Service rendered free of charge by a doctor attached to a hospital or a nursing home where such services are rendered free of charge to everybody, would not be “ service” as defined. The payment of a token amount for registration purposespurpose only at the hospital or nursing home would not affect after the position, and the patients in such a hospital or nursing home and cannot be called ‘consumers’.
6. Services rendered by hospitalshospital and nursing homeshome where charges are required to be paid by all persons, would fall within the purview of the expression ‘service’ as defined in act, as such hospitals and nursing homes are covered by the Act.
7. If patients are charged fees in hospitals or nursing homes which also havehad free wards for the poorfor poor, all the patients whether paying or non-paying are consumers and can file claims under the act.
8. Services rendered by a medical practitioner or hospital or nursing home cannot be services rendered free of charge just because a personbecause person availing the service has taken insurance policy and is rendered by the insurance company.
9 . Similarly, when the employer bears the expenses of medical treatment of his employee, the service rendered to such an employee cannot be said to be free of charge, and would therefore constitute ‘service’ under the Act.
The judgment included the medicalincluded medical profession has been brought under the Section 2(1) (o) of CPA, 1986. The judgement concedes the summary procedure prescribed by the CPA would suit only glaring cases of negligence and in complaintscomplaint involving complicated issues requiring recording of the evidence of experts, the complaint can be approached to the civil courts. As a result of this judgement , all private and government hospitals and the doctors employed by them and the independent medical/dental practitioners except primary health centres, birth control measures, anti malaria drive and other such welfare activities can be sued under the CPA.