MEDICAL PROFESSION AND CONSUMER PROTECTION ACT

( By Dr. Jagdish Singh )

Selected Provisions of The Consumer Protection Act, 1986 Explained

Any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of the 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.

Comments
Deficiency/negligence means fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance of the medical service rendered by a hospital and /or member of the medical profession.

Person includes -

• a firm whether registered or not;
  
• a Hindu undivided family;
  
• a co-operative society
  
• every other association of persons whether registered under the Societies Registration Act, 1860 or not.

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 of 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.

Although medical profession has not been included under the term "service" but in many of the decided cases medical services have been deemed to be included in the definition of service in view of the expression ; ‘service means service of any description.’

Charge means -

Fee / payments with element of profit making motive involved. As Government hospitals/certain charitable hospitals do not charge fees, hence such services rendered are exempted from this Act. In certain situations where hospitals are charging nominal stamp fees, contributions are made by Govt.employees to the CGHS , payments are made for cottage wards, diagnostic tests are done under auto-finance scheme, such services do not have any element of profit motive. Hence the persons availing of these services are not consumers and the services rendered do not fall under the Act, as there is no consideration paid for hiring of such services.

The second category of "service" exempt under this Act are those services which are rendered under a contract of personal service.

It has been held by the National Consumer Disputes Redressal Commission ( National Commission) on April 21,1992 in the case of Cosmopolitan Hospitals and Anr. v. Vasantha P. Nair [ 1 (1992) CPJ 302 (NC) ] that the medical treatment rendered to a patient by a private doctor or clinic for consideration is clearly a service falling within the ambit of section 2 (1) (o) of the Consumer Protection Act. It is not a contract of personal service but a contract to render professional service. It is now well settled that hospital authorities rendering service for consideration are liable to the patient for injury caused by him by the negligence or other fault of the doctors, surgeons, nurses, anesthetists and other members of the hospital in the course of their work. The liability of the hospital authorities extends to the faults of doctors and other employees whether their employment is permanent or temporary or casual, paid or honorary, whole or part-time as happens in the case of visiting physicians/surgeons. CONSUMER DISPUTES REDRESSAL AGENCIES

Redressal Forums have been established at three different levels :-

• "District Forum" by State Government. At least one in each district or in certain cases one District Forum may cover 2 or more districts.
  
  
  
• "State Commission" by State Government.
  
• "National Commission" (National Consumer Disputes Redressal Commission ) by Central Government.

District Forum

This shall consist of :

1. a person who is, or has been, or is qualified to be a District Judge, its President
   
2. two other members shall be persons of ability, integrity and standing and have adequate knowledge or experience or have shown capacity, in dealing with problems relating to economics, law, commerce,accountancy, industry, public affairs or administration,one of whom shall be a woman.

The District Forum shall have jurisdiction to entertain complaints where the value of services and compensation claimed does not exceed Rupees Five Lakhs.

Manner in which complaint shall be made

A complaint may be filed with a District Forum by -

1. the consumer to whom such service is provided or is agreed to be provided;
   
2. any recognised consumer association, whether the consumer to whom the service is provided or is agreed to be provided is a member of such association or not ;
   
3. one or more consumers, where there are numerous consumers having the same interest, with the permission of the district forum, on behalf of or for the benefit of all consumers so interested ;
   
4. The Central or the State Government.

The District Forum shall on receipt of a complaint -

1. refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum ;
   
2. Where the opposite party, on receipt of a copy of the complaint, denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,

(i) On the basis of evidence brought to his notice by the complainant and the opposite party, where the opposite 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 ;
(iii) Where the complainant or his authorised agent fails to appear before the District Forum on such day, the District Forum may in its discretion either dismiss the complaint in default or if a substantial portion of the evidence of the complainant has already been recorded, decide it on merits. Where the opposite party or its authorised agent fails to appear on the day of hearing, the District Forum may decide the complaint ex-parte.
(iv) Where any party to a complaint to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to perform any other act necessary to the further progress of the complaint, for which time has been allowed, the District Forum may notwithstanding such default :-

1. If the parties are present, proceed to decide the complaint forthwith ; or
   
2. if the parties or any of them is absent, proceed as mentioned above in (b)(iii) ;

(v) The District Forum may, on such terms as it may think fit at any stage, adjourn the hearing of the complaint but not more than one adjournment shall ordinarily be given and the complaint should be decided within 90 days from the date of notice received by the opposite party where complaint does not require analysis or testing of the goods and within 150 days if it requires analysis or testing of the goods.

Findings of the District Forum

If, after the proceedings, the District Forum is satisfied 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 do one or more of the following things :

1. To return to the complainant the charges paid.
   
2. 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.
   
3. To remove the deficiency in the services in question.
   
4. To provide for adequate costs to parties.

Appeal against orders of the Dist. Forum

Any person aggrieved by an order made by the District Forum may appeal against such order to the State Commission within a period of 30 days from the date of the order. The State Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period.

State Commission

It shall consist of -

1. a person who is or has been a Judge of a High Court , who shall be its President ;
   
2. two other members ( as for District Forum).

Jurisdiction of the State Commission The State Commissioo entertain -

1. Complaints where the value of services and compensation claimed exceeds rupees 5 lakhs but does not exceed rupees 20 lakhs;
   
2. appeals against the orders of any District Forum within the state ;
   
3. revision petitions against the District Forum.

Procedure to be followed by State Commission

Same as for District Forum.

Procedure for hearing appeals

The State Commission may, on such terms as it may think fit and at any stage, adjourn the hearing of appeal, but not more than one adjournment shall ordinarily be given and the appeal should be decided within 90 days from the first date of hearing.

Appeals against orders of State Commission

Any person aggrieved by an order made by the State Commission may appeal against such order to the National Commission within a period of 30 days. The National Commission may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period

National Commission

This shall consist of -

1. a person who is or has been a Judge of the Supreme Court, who shall be its President. (No appointment under this clause shall be made except after consultation with the Chief Justice of India) .
   
2. 4 other members ( qualifications : As for District Forum /State Commission ).

Jurisdiction of the National Commission

The National Commission shall have jurisdiction - (a) to entertain (i) complaints where the value of services and compensation claimed exceeds rupees 20 lakhs ; and (ii) appeals against the orders of any State Commission.
(b) to entertain revision petition against the State Commission.

Procedure to be followed by the National Commission

A complaint containing the following particulars shall be presented by the complainant in person or by his agent to the National Commission or be sent by registered post, addressed to the National Commission :-

1. the name, description and the address of the complainant;
   
2. the name, description and address of the opposite party or parties, as the case may be, so far as they can be ascertained ;
   
3. the facts relating to the complaint and when and where it arose ;
   
4. documents in support of the allegations contained in the complaint ;
   
5. the relief which the complainant claims.

The remaining procedure and the procedure for hearing the appeal is similar to that for State Commission.

Appeal against orders of the National Commission

Any person, aggrieved by an order made by the National Commission, may appeal against such order to the Supreme Court within a period of 30 days from the date of the order.

The Supreme Court may entertain an appeal after 30 days if it is satisfied that there was sufficient cause for not filing it within that period.

Limitation Period

The District Forum , the State Commission or the National Commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.

In case there are sufficient grounds for not filing the complaint within such period, extension may be granted.

Dismissal of frivolous or vexatious complaints

Where a complaint instituted before the District Forum, the State Commission or the National Commission, as the case may be, is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding 10,000 rupees, as may be specified in the order.

Penalties

Where a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such person or complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than 2,000 rupees but which may extend to 10,000 rupees or with both. In exceptional circumstances the penalties may be reduced further.

CONSUMER PROTECTION COUNCILS

The Act provides for the establishment of - (1) The Central Consumer Protection Council ( The Central Council).
(2) The State Consumer Protection Council ( The State Council).

Objectives of the Council shall be

To promote and protect the rights of the consumers such as ,

1. the right to be protected against the marketing of services which are hazardous to life and property ;
   
2. the right to be informed about the quality, quantity, potency, purity, standard and price of services so as to protect the consumer against unfair trade practices ;
   
3. the right to be assured, whenever possible, access to a variety of services at competitive prices ;
   
4. the right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate forums ;
   
5. the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers ; and
   
6. the right to consumer education.

The Central Council shall consist of 150 members. The Minister In Charge of the Consumer Affairs in the Central Government shall be its Chairman. The State Council shall be chaired by Minister Incharge of Consumer Affairs in the State Government.

The resolution passed by these Councils shall be recommendatory in nature.

THE FUTURE

Recently, the Central Consumer Protection Council sought some amendments in the Consumer Protection Act to cover the existing lacunas. One of the sweeping changes proposed was to bring in medical and health services offered by the government within the ambit of Consumer Protection Act. Minister of State for Civil Supplies Shri Kamaluddin Ahmed said in the Lok Sabha on April 10,1992, that entire goods and services, including health services are proposed to be brought under the Consumer Protection Act , 1986 and these will be brought before the Parliament in the next session. But on the issue of bringing in medical and health services offered by the Government under the umbrella of C.P. Act, Shri Sathi Nair, Joint Secretary in the Consumer Affairs Ministry said : " We are not publishing this amendment through immediately because the Health Ministry says its hospitals are already overcrowded, and lack in infrastructure, finance and drugs. It may bring the services to a grinding halt". The Consumer Protection ( Amendment ) Act, 1993 has since been passed by the Parliament in the Monsoon Session, without bringing into its ambit Govt. health services.