Consumer Protection Act Pertaining to Medical Service: An Analytical Approach
Abstract
Practice of medicine is as ancient as the existence of human race. In the earlier era Physician was treated as next to God. Gradually, his social status reduced from next to God to a friend, philosopher and guide and then to a respectable professional and today to a service provider to health consumers. Changes in the status of physician also affect the nature of punishment awarded to them if any wrong done by them. Nature of punishment changed from Crime to tort. Even though today also criminal law and traditional civil law applicable to the medical negligence cases, but most of the cases of medical negligence filed before Consumer Protection Act, which is more liberal law for patient as well doctor also. Consumer Protection has its deep roots in the rich soil of Indian civilisation, which dates back to 3200 B.C. In ancient India, human values were appreciated and ethical practices were considered of great importance. The rulers felt that the welfare of their subjects was the primary area of concern. They showed keen interest in regulating the social conditions and the economic life of the people, by establishing many trade restrictions to protect the interests of consumer.
References
Indian Medical Association v. V.P. Shantha AIR 1996 SC 550.
Dr. A.S. Chandra v. Union of India(1992) 1 A L T 713.
Dr. G. Singh, The law of consumer protection in India justice within reach p. 190,( Deep and Deep Publications , new Delhi )
(1994) 2 CTJ 294
National Commission judgment and order dated December 15, 1989 in first Appeal No.2 of 1989.
Judgment dated April 21, 1992in First Appeal Nos 48 and 94 of 1991.
1992(NCDRC)
Birbal singh and Others v. ESI Corporation and Others, 1993(2) CPJ 1028.
Sowbhagya Prasad v. State of Karnataka I(1994) CPJ 402(Kar.SCDRC).
Premchand Sharma v.The Director, CGHS, 1992(2) CPR 51(DEL SCDRC).
Harbhaian Singh v. Dayanand Medical College and Hospital and ANR.1996(3) CPJ.
R.K. Bag, Law of Medical Negligence and Compensation, 34( 2nd ed., 2001).
Indian Medical Association v. V.P. Shantha AIR 1996 SC 550
G.Singh , Law of Consumer Protection in India, p.95
Sachin Aggarwal v.Dr.Ashok Arora., 1993(1) CPJ113.
Section 1(4) of the Consumer Protection Act 1986
Section 2(7) of the sale of Goods Act defines ‗Goods‘ to mean every kind of movable property other than actionable claims and money, and includes stocks and shares, growing crops grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
Dr V.K. Agarwal ,Consumer Protection Law And Practice , p. 213 (4th Ed 2000).
According to clause (o) of Section 2(1) of the Act ―Service means -
a) Service of any description which is made available to potential users and
b) 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
c) Does not include the rendering of any service free of charge or under a contract of personal service.‖
U. P. A. E. Vikas parishad (housing and Development Board) v. Garima Shukla and others (1991) CPJ1 (NC)
K. Neelambaran V. Post Master Urukunnu And Others (1991) CPJ 666.
Union of India v. Nilesh Agarwal (1991) CPJ 203(NC 1994(1) SCC 243
(1994) SCC (1) 243
The main part is explanatory in nature. The inclusionary part expressly includes the services provided by 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. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.
The word ‗any‘ used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word ‗potential ‘is also very wide. It means existing in possibility but not in act. It expected to come into existence at some future time, though not now existing. Thus service is not only extended to actual users but those who are capable of using it are covered in the definition.
Section 2(1) (d) of the consumer protection act 1986.
Commentary On Consumer Protection Act available at http://ncdrc.nic.in/bare_acts/1_1_2.htm last seen on 27-06-2018.
E.g.1) A goes to a doctor to get himself treated for a fracture. Here A is hiring the services of the doctor. Thus he is a consumer. Similarly A passenger getting railway reservation after payment is hiring service for consideration.
A presented before the Sub-Registrar a document claim-ing it to be a will for registration who sent it to the Collector of Stamps for action. The matter remains pending for about six years. In the meantime A filed a complaint under the Consumer Protection Act alleging harassment by the Sub-Registrar and Collector and prayed for compensation. The National Commission held the view that A was not a ―consumer‖ under the CPA. Because there was no hiring of services by the complainant for consideration and because a Government official doing his duty as functionary of the State under law could not be said to be rendering a service to the complainant.[S.P. Goel v. Collector of Stamps (1995) III CPR 684 (SC)].
Spring Meadows hospital case, (1998) 4 SCC 39. In this it was held that When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the child would also become a consumer being beneficiary of such services. Likewise in Nirmala R. Parab and another v. Dr. Kalpana Desai and others, 1998(3) CPJ 527(Mah.SCDRC) it was held that if the parents are looking after a married daughter who is in a vegetative state and they spend for her medical treatment, their claim for compensation would be accepted even if the husband has not filed the case
According to Section 2(1) (g) of the Consumer Protection Act 1986, 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.
Dr. Paramjitsingh Grewal v. Charanjitsinghchawla (NCDRC , 2006).
According to Clause (b) of Section 2(1) of the consumer Protection Act complainant means—
i. a consumer; or
ii. any voluntary consumer association registered under the Companies Act, 1956 (1of 1956)or under any other law for the time being in force; or
iii. the Central Government or any State Government iv. one or more consumers, where there are numerous consumers having the same interest; v. in case of death of a consumer, his legal heir or representative; who or which makes a complaint
Definition of complaint is provided under section 2(1)(C) of the Consumer Protection Act 1986.