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IMA vs VPShantha
LL.B. Case study list
University of Mumbai
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Indian Medical Association V.P
1996 AIR 550
Factual History Or Background:-
Consumer Protection Act was enacted in 1986 as to protect consumer. The Consumer Protection Bill, 1986 seeks to provide for better protection of the interests of consumers and for the purpose, to make provision for the establishment of Consumer councils and other authorities for the settlement of consumer disputes and for matter connected therewith. It seeks, inter alia, to promote and protect the rights of consumers such as-
Ø The right to be protected against marketing of goods which are hazardous to life and property;
Ø The right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
Ø The right to be assured, wherever possible, access to an authority of goods at competitive prices;
Ø The right to be heard and to be assured that consumers interests will receive due consideration at appropriate forums;
Ø The right to seek redressal against unfair trade practices or unscrupulous exploitation of consumers; and
Ø The right to consumer education.
As there were increasing case relating to Doctor (Medical) Negligence, and it was ambiguous that whether medical services are services under COPRA, 1986 or not and whether hospital or doctor or medical practitioner is in the ambit of COPRA, 1986 or not. Also, there were different contrasting and conflicting decisions and rationale regarding this issue were given by various High Courts and other lower courts. Many a Special Leave Petition were filed in the Supreme Court against decisions and judgments of subordinate courts. Supreme Court faced very big flow of SLPs coming in. Hence, in this PIL, a writ was filed in Supreme Court under Article 32 of Constitution of India, to decide upon Scope and Jurisdiction of the Consumer Protection Act, 1986. Some of the cases and SLPs, which
have contrasting and dissimilar decisions, are A. Chandra v. Union of India, Dr.C. Subramanian v. Kumarasamy & Anr., Dr. Sr. Louie & Anr. v. Smt. Kannolil Pathumma & Anr., Cosmopolitan Hospital (P) Ltd., and Dr. K. Venogopolan Nair.
Statues Referred:-
Section 2(1) (d) of Consumer Protection Act, 1986, which defines “Consumer” of service as a person who 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 services 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; but does not include a person who avails of such services of any commercial purpose.
Section 2(1) (o) of Consumer Protection Act, 1986, which defines “service” as service of any description which is made available to 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 the rendering of any service free of charge or under a contract of personal service.
Section 2(1) (g) of Consumer Protection Act, 1986, states that "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.
Section 14 (1) (d) of Consumer Protection Act, 1986,deals with “Finding of District Forum”, If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
This argument was ignored by referring a case Dharangdhara Chemical Works Ltd. v State of Saurashtra, which distinguishes between Contract of service and Contact for service. Mere fiduciary relationship does not give effect to and since there is no master servant relationship between Doctor and Patient, it will not result into Contract of Service.
v Other argument which was raised by respondent was that “service” does not include any such term medical service, so medical service are not in the purview of the Act.
This argument was rejected as definition of service is not limited but it is a having three parts i. Main part, inclusionary part, exclusionary part. Though main part does not include medical services but inclusionary part of the definition have wider scope and covers medical services.
Hence, It was held by the Court that medical services will be treated as services as in accordance with Section 2(1) (o) of the Act, hereinafter the potential user will be said consumer of medical services.
v Second issue which was raised questioned hospitals and nursing homes are in the scope of the Act. There were made three broad categories under which nature services of doctors/hospital can be determined:-
a. Services rendered free of charge to everybody.
b. Charges paid by all users.
c. Charges are required to be paid by all person except those, who cannot afford (services are rendered free)
There is no difficulty in finding out liability in first two categories as when services are rendered free of charge there is no service rendered as according to Section 2(1) (o) of the Act hence excluded by virtue of exclusionary clause of the Section. Also token money will be treated as no consideration paid. But it will not include those independent doctors who are rendering service free of charge. And in second category if a person is paying consideration it will come under jurisdiction of the Act as medical services are services and consideration is paid to avail them.
It was opined by Hon’ble Judge that since patients, who are availing services free of charge, belonging to third category are beneficiary as patients who are paying consideration in that category are, actually, paying for non-paying patients too. So being beneficiary they are under scope of the Act. Hence are treated as consumer under Section 2(1) (d) of the Act.
Judgment:-
- Medical Services are treated as in ambit of “services” under Section 2(1) (o) of the Act.
· It is not contract of personal service as there is absence of master servant relationship.
· Contract of service in Section 2(1) (o) cannot be confined to contracts for employment of domestic servants only. The services rendered to employer are not covered under the Act.
Medical Services rendered by hospital/nursing home free of charge are not in the purview of Section 2(1) (o) of the Act.
Medical Services rendered by independent Doctor free of charge are under Section 2(1) (o) of the jurisdiction of the Act.
Medical Services rendered against payment of consideration are in the scope of the Act.
A medical service where payment of consideration is paid by third party is treated as in the ambit of the Act.
Hospital in which some person are charged and some are exempted from charging because of their inability of affording such services will be treated as consumer under of Section 2(1) (d) of the Act.
Critical Analysis:-
- This case gave effect to consumers who were suffering from medical negligence and including medical services in the ambit of Consumer Protection Act, 1986 enabled consumer to get more speedy and cheap justice. As this is the main aim of the Act.
IMA vs VPShantha
Course: LL.B. Case study list
University: University of Mumbai
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