to remove the defects or deficiencies in the services in question.
The medical profession would be covered for providing either deficient service (negligence) or providing defective goods. Example an ophthalmologist provides a lens which is implanted into a patient's eye- the ophthalmologist, along with the dealer and manufacturer would be liable to the patient if the patient suffers due to defect in manufacture of the lens implanted since the ophthalmologist, by implication, would be guaranteeing that the lens implanted was of a standard quality.
Representation in the Consumer Disputes Redressal Forum can be done by the complainant himself, through a representative or an advocate. Recently (April 8, 1996) the Supreme Court has put a bar on a medical practitioner to register as an advocate with the Bar Council, thus preventing a medical practitioner from practising law. This decision however, will not prevent a medical practitioner, qualified in law, from undertaking to appear for another medical practitioner in a representative capacity. Similarly the medical practitioner could be appear in person, through a representative who has a working knowledge of the law, or through an advocate specifically engaged to represent the medical practitioner in the forum where the complaint has been filed. If an advocate is appearing for the medical practitioner he, (the advocate) would file a vakalatnama (authority to appear) on behalf of the medical practitioner. If a person, other then an advocate is chosen to appear for the medical practitioner, the practitioner is required to give a Special Power of Attorney to the person appearing on his behalf, by giving this authority on a Rs. 20 stamp paper in the presence of a Notary or a Magistrate. Special Executive Magistrates (S.E.M.) do not have the authority to attest power of attorney. If the medical practitioner decides to appear in person no formality is required except to inform the forum. However, if at a later stage, the medical practitioner decides to appoint another person or an advocate to appear for him, the forum will grant him the privilege.
The medical practitioner against whom a complaint has been filed does not need to appear personally before the forum. His representative, or an advocate can appear. However, it is advisable for the medical practitioner to be present, if only to learn the procedure and help the person appearing on his behalf on facts of his case. If an emergency prevents the medical practitioner from attending, another person who knows all facts can be present at the date given for hearing.
The daily board of complaints to be heard is displayed on the outside of the room where complaints are adjudicated. A specific time is generally allotted to each complaint and it is advisable to be present before the time mentioned. Alternately the registrar may be consulted about the daily board.
During appearance at a forum it is best to wear a formal dress. When the matter (complaint) is called out the medical practitioner and his representative should proceed before members of the forum in a dignified manner and refrain from making any comments. A question from any forum member should be answered to the point without showing any sign of agitation or distress. Remember, members on the panel are only performing a duty to listen to both sides and then pass an order in the complaint .They are not complainants and have nothing against the medical practitioner personally.
The Complaint
Every action under the Consumer Protection Act begins with an aggrieved patient lodging a complaint in writing with the Consumer Forum alleging that the goods bought by him suffer from one or more defect, or the services hired or availed of suffer from deficiency in any respect. There are three forums where a complaint can be lodged depending upon the compensation claimed. A complaint must be lodged with the District Forum if the amount of money claimed is less than Rs. Five lakhs; if the claim is between five and twenty lakhs a complaint must be filed with the State Commission. The National Commission entertains a complaint when a claim exceeds Rs Twenty Lakhs. Every state has one State Commission and several District Forums. The city of Mumbai has two District Forums and the State Commission.
A medical practitioner/hospital/nursing home will generally be liable for deficient services which has resulted in harm to the complainant. Hospitals/nursing homes would in addition be liable if they have charged in excess than the price displayed in the information sheet. Services are given to a person who hires or avails of such service for consideration which has been paid in full or promised or partly paid or partly promised. Also hiring or availing of services under any system of deferred payment is covered. Similarly services may have been hired by a beneficiary for consideration paid or promised with the approval of the person hiring the service.
The complaint is received by the medical practitioner (called the opponent or the opposite party) by registered post. It is important for the receiver of the complaint (a relation of the medical practitioner, if the doctor is not home) to clearly note the date of receipt .It has been experienced occasionally, that the date for first appearance at the forum has actually passed when a copy of the complaint is received. The reason for this is that the dispatch of the complaint from the forum is close to the date of appearance and if postal delay takes place the complaint is not received on time for the medical practitioner or his representative to attend the forum on the given date. Non-appearance at the first date is not fatal (in the legal sense) to the opposite party (the medical practitioner) but should be avoided.
The complaint is accompanied by a memorandum from the forum listing the name of the complainant and the opposite party/parties and asking for both to present on a certain day at a particular time. The memorandum also asks the opposite party to file his version against the allegations made in the complaint by the given date. This is called the written statement and is the physician's version of events.
It is important to go through the complaint in detail. Note every fact given by the complainant. Often complaints are written by the patient or a relation and contain much useless matter. Most complaints stress on mental hardship or mental torture, giving little factual material. Often fantastic compensation is demanded for mental torture. The medical practitioner should not be unduly perturbed by such demands. These demands are of little legal consequence when the quantum of damages are calculated. Often accompanying the complaint are documents called exhibits. These may consist of bills, prescriptions, notes about the disease or the operation performed and other relevant material which the complainant is supposed to annex with the complaint. Each exhibit should be scrutinized thoroughly since these exhibits are a part of the evidence which the complainant will rely upon to prove his case against the medical practitioner (opposite party). If the medical practitioner omits or fails to take any action to represent his case within the time given by the forum, the forum will proceed to settle the dispute on the basis of evidence brought to its notice by the complainant and the medical practitioner will then be liable to pay damages which may be awarded to the complainant.
The Written Statement
(The version of the opposite party, or opponent, viz. the medical practitioner)
The notice which the medical practitioner receives has the following statement: NOW THEREFORE TAKE NOTICE that you are directed to file your version on the above complaint if any ( with three sets of spare copies) within 30 (thirty) days from the receipt of this notice. A copy of your version be served on the complainant at the address given above.
TAKE FURTHER NOTICE that the complaint is listed for hearing on ------- at-------- at the above address.
The written statement is a document offered to the forum by the opposite party (medical practitioner) in response to the complaint filed by the complainant. This document is his defense to the charge made against him by the complainant. The medical practitioner needs to deal with every fact alleged in the complaint and also to state any new fact which is in his favor and such legal objections to defeat the claim of the complainant. If the medical practitioner fails to file his version (written statement) the forum would be at liberty to pass an order on the basis of the evidence presented to it by the complainant. If the time allowed by the notice of the forum is short, the medical practitioner may request time for filing his version. Such time is generally allowed by the forum.
Before proceeding to draft the written statement, it is always necessary to examine the complaint carefully and see whether all particulars are given in it to enable the medical practitioner to understand all details of the claim made in the complaint. If the complaint is vague, the medical practitioner should make an application that the complainant furnish more details before he files his written statement.
A question arises when more than one medical practitioner has been named in the complaint as the opposite party. A joint defense may be filed, if they have the same defense to the complaint. If their defenses are different , they should file different written statements. If the defenses are not only different but conflicting not only the written statements should be different but the representatives appearing for the medical practitioners should also be different.
Drafting a written statement is a legal exercise. Suffice it to say that every fact of the complaint should be replied to by the medical practitioner in the same order alleged in the complaint either by admitting or denying the allegation or, when the medical practitioner has no knowledge of the fact alleged simply by refusing to admit it. A fact alleged in the complaint can be replied by totally and categorically denying the allegation made in the complaint or admitting the allegation in the complaint but destroying its effect by alleging affirmatively facts of his own or raising an objection in point of law. All defenses which are permissible should be taken at the first instance for the medical practitioner may not be allowed to advance it at a later stage, particularly if it involves a question of fact. There should be no general denial of facts alleged in the complaint but the denial should be specific to each fact alleged. The medical practitioner may consult a person with some legal background or an advocate before filing his written statement.
The written statement should be accompanied by documents called exhibits which are annexed to the written statement and numbered consecutively. These exhibits may be in the form of case notes, nursing charts, reports of laboratories and references to the literature which the medical practitioner will rely upon during his defense.
The written statement should be accompanied by an affidavit from the medical practitioner stating that all statements made in the written statement are true to his knowledge. If an advocate is representing the physician the affidavit is in a modified form.
If the medical practitioner feels that the complaint against him is frivolous or vexatious he should make a prayer in the written statement that the complaint be dismissed. and also pray that the forum direct the complainant to pay him cost up to Rs. 10,000.
Three copies of the written statement should be submitted to the District Forum or to the State Commission since three members consisting of the President and two other members adjudicate a complaint (six copies are required to be submitted to the National Commission- since six members, viz. the President and five members adjudicate a complaint). One copy should be sent to the complainant by registered post and if there is more than one complainant one copy should be sent to each complainant. One copy should be kept for the medical practitioner and one spare copy should be available for reference.
Production of Evidence
Part of the evidence by the complainant and the opposite party (medical practitioner) has already been annexed to the complaint and the written statement as exhibits. Further evidence in the form of affidavits by experts in the medical field is permitted. The medical practitioner, should at this stage, approach eminent persons in various specialties to support his case if necessary. It must be remembered that for every modality of treatment there is more than one school of thought. It is not negligence, if the medical practitioner has chosen one method of treatment in preference to the other, provided the one chosen has not fallen into disuse by the profession and the chosen method has not been used negligently resulting in harm to the patient. A sworn affidavit from specialists should be sought to support the line of treatment given by the physician.
Along with the affidavit of experts it is helpful if the literature in the matter is referred, either by annexing articles relating to the matter, or standard textbooks describing the procedure used. Books, periodicals, articles, clipping of the press is not primary evidence (since the author of the book, articles etc. himself is not putting forth the evidence) but only secondary evidence. But the forum will give due weight to the evidence so produced.
Due to the nature of the Consumer Protection Act speedy remedy is but one of the goals. Forums do not encourage the calling of expert witnesses, their examination or cross-examination which entails delay, though the procedure to be adopted by the forum is laid down by the Code of Civil Procedure, 1908. The latter Code is the code adopted by all other courts in India. A medical practitioner can make an application praying to the forum for calling expert witnesses to be personally examined and cross-examined should the medical practitioner deem it essential. If the application has merit the forum will grant him the prayer after listening to the medical practitioner and the complainant. Alternately the medical practitioner may, if the forum refuses such request, make a revision application to a higher tribunal to transfer the complaint to a civil court for detailed recording of evidence. The stage of evidence is complete when both sides have presented their affidavits from experts. The forum also has power to send any samples of medication or other articles used during treatment to an authorized laboratory for the purpose of testing and calling for the report of such tests. Either the complainant or the medical practitioner may make such request for testing.
Arguments
This is the last stage before the forum. The complainant begins his case against the medical practitioner and relates details of his grievance, supported by documentary evidence. The medical practitioner is then given an opportunity to present his version of the story. Since arguments are oral, members of the forum take notes during argument and often ask pertinent questions. It is better for the medical practitioner to supplement oral arguments by giving a written submission of the oral arguments. Three copies of the written submission should be submitted to the District Forum and the State Commission and six copies to the National Commission. Written submission should be supplemented by a copy of case laws cited during oral arguments. The written submission is an additional safeguard if any point has been inadvertently omitted during oral arguments.
The Order
An order is passed by the forum on conclusion of arguments. The order sets out in brief the complaint, the version of the opposite party, the evidence on each side followed by detailed reasons for passing the order. The complaint is either dismissed or the opposite party is ordered to compensate the complainant within a specified time. Rarely is a party to the proceeding ordered to pay costs of the complaint. Non-compliance of the order will make the party against whom the order has been passed punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or fine which shall not be less than two thousand rupees but which may extend up to ten thousand rupees or both although the forums have power to reduce the term of imprisonment or the fine to less than the minimum prescribed in the Act if it is satisfied that the circumstances of the case so require. The presiding officer of the forum signs the order along with the members who adjudicate the complaint The order is sent to the complainant and the opposite party by registered post free of cost The copy received is certified thus obviating the need to make a separate application for a certified copy. It is important to note the date of signing the order and the date of the receipt by post. A party to the proceeding has one month to prefer an appeal from the date of receipt of the order.
Appeal
An appeal is legally, a continuation of the proceedings of the lower tribunal, when, one of the parties to the proceedings, does not agree with the decision given by the lower tribunal and invokes the jurisdiction of a higher tribunal in the hierarchy to quash or reverse the order passed against him. This right of appeal has been given statutorily by the Consumer Protection Act, 1986 to an aggrieved party.
Every final order of the District Forum is appealable to the State Commission. Similarly, every final order of the State Commission is appealable to the National Commission. A final order passed by the National Commission is appealable to the Supreme Court.
A period of one month is allowed to prefer an appeal from a lower tribunal to a higher tribunal in the hierarchy.
An important point to be considered is whether the period of 30 days within which an appeal is to be preferred is to be computed from the date of signing the order, posting of the order or the date of receipt of the order by the parties. There have been different opinions by different forums. However, it is safe to assume that the period of 30 days is to be calculated from the date of receipt of the order by the parties concerned , viz. from the date of knowledge of the order. It is thus important to sign the receipt of the registered letter containing the order and note the date of receipt carefully.
Many forums construe the 30 day period for filing an appeal strictly though the forums have discretion to allow the period of limitation to be exceeded if sufficient cause is shown for the delay in preferring an appeal. The words " sufficient cause " are of wide import and each cause for delay in preferring the appeal varies from case to case. The medical practitioner should, whenever possible file the appeal within the stipulated time since it will require him to convince the forum that "sufficient cause" was outside his control. This requires a separate application to be made along with the memorandum of appeal. It is also open to the other party (respondent) to argue why the application to condone delay in preferring the appeal should not be allowed.
The words "sufficient cause" receive a wide interpretation so as to advance substantial justice. However, when there has been negligence or inaction or want of bona fide on the part of the appellant to prefer the appeal within the prescribed period of thirty days the forum does not condone delay. The forum then demands an explanation for each days delay in preferring the appeal and if the same is not forthcoming the appeal is not admitted at the initial stage without going into the merit of the appeal. Every appeal is to be preferred along with a certified copy of the order passed by the District Forum or by the State Commission. In Maharashtra, both the District Forum and the State Commission post a copy of their order which is certified so there is no need to apply separately for a certified copy. Examples of "sufficient cause" where forums have condoned delay are- delay due to conflicting legal advice, appellant suffering from a sudden illness which then got prolonged, fire which destroyed the home of the appellant. No event or circumstances arising after the expiry of limitation can constitute sufficient cause. Instances when "sufficient cause" has not been condoned include ignorance or mistake of law, negligence of the pleader or his clerk or miscalculation of the period of limitation by the appellant or his advocate.
In preferring an appeal all documents relating to the case must be annexed along with a certified copy of the order passed by the lower tribunal. This must be accompanied by a memorandum of appeal stating the reasons why the order of the lower tribunal should be set aside. Generally the appellate court considers point of law in which the lower court has erred. However, important points of fact are also considered. New evidence is not permitted to be led in appeal except with the permission of the forum. It is thus important for the medical practitioner to lead all possible evidence to support his case in the lower tribunal. The appellant is required to submit four copies of the memorandum of appeal to the State Commission and six copies of the memorandum of appeal to the National Commission. In case of the State Commission three copies are required for members of the forum and one copy is sent by the State Commission to the respondent
On the date of hearing the appeal both appellant and respondent are required to be present. In case the appellant or his authorized representative is not present on the required day the forum may either dismiss the appeal or decide the appeal according to its merit. It is thus important that the medical practitioner or his authorized representative must be present on the date given for hearing of the appeal. If the respondent is absent on the date of hearing of the appeal the court may proceed ex parte and decide the appeal on its merits. The appeal is required to be decided within 90 days from the date of the first hearing though in practice it takes longer. Not more than one adjournment is allowed according to the rules.
It is not always that the appellate court will admit an appeal that has been preferred. Admitting an appeal is discretionary and depends upon the merit of the case. The memorandum of appeal should be drawn up carefully since no point not taken up in the memorandum of appeal will be considered by the forum, though the appellate forum shall not confine itself to the grounds set forth in the memorandum of appeal though the appellate forum will not rest its decision on any other ground than the grounds set forth in the memorandum of appeal unless the party who may be affected thereby has been given at least one opportunity of being heard.
It is important to know the difference between an appeal and revision. An appeal can only be preferred against the final order of the District Forum, the State Commission or the National Commission whereas a revision can be made by an application during the course of the hearing of the complaint or after the final order has been passed. A period of thirty days is allowed to prefer an appeal whereas there is no period of limitation for a revision application. In an appeal the forum looks into points of law as well as the evidence led in the lower tribunal whereas in a revision the question considered is whether the lower tribunal has exercised jurisdiction which it did not have or not exercised jurisdiction which it should have exercised or has exercised jurisdiction illegally or with material irregularity. It should be remembered that an appeal cannot be converted into a revision when the limitation period for preferring the appeal has passed since the forum does not allow a person to do indirectly what he could not do directly.
