Topic: Indian Medical Association vs V.P. Shantha

Indian Medical Association vs V.P. Shantha
Equivalent citations: 1996 AIR 550, 1995 SCC (6) 651 - Bench: Agrawal, S.C., Kuldip Singh (J), Hansaria B.L. (J) - Citation: 1996 AIR 550 1995 SCC (6) 651 - JT 1995 (8) 119 1995 SCALE (6)273 - Date Of Judgment: 13/11/1995

JUDGMENT:

S.C. Agrawal, J. :

Leave granted in SLP (C) Nos. 18497/93 and 21755/94. Delay condoned    and leave granted in SLP (C)    Nos. 18445- 73/94.

These appeals, special leave petitions and the    Writ Petition raise    a common question, viz., whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986    (hereinafter referred to as 'the Act']. Connected with this question is the question whether the service rendered at a hospital/nursing home can be regarded as 'service' under Section 2(1)(o) of the Act. These questions     have been considered by various High Courts as well     as by    the National Consumer Disputes Redressal Commission [hereinafter referred to     as 'the National Commission'].

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.

Re: Indian Medical Association vs V.P. Shantha

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.