The Consumer Protection Act, 1986 which came into force on 15th April,1987 is a welfare legislation mainly titling towards the consumer just as the Industrial Disputes Act is loaded in favour of workers. The aims and objects of the Act inter alia are,as given in its Preamble, better protection of the interests of the consumer and for settlement of consumer disputes. It provides for speedy and inexpensive settlement of disputes within a limited time frame, as against civil actions which are costly and take years in coming to a settlement. Provisions of the Act are in addition to and not in derogation of any other law for the time being in force and are compensatory in nature.
The Act envisages a three-tier quasi-judicial machinery , i.e.,District Consumer Disputes Redressal Forum at the district level State Consumer Disputes Redressal Commission of the state level and National Consumer Disputes Redressal Commission at the National level.
Recently, the Act has been amended by the Consumer Protection (Amendment) Act, 1993, w.e.f. 18.6.1993. We shall deal selectively with provisions of the Act which are relevant to the Medical Profession, as they exist as on today. The meaning of legal terms are being restricted to such terms only as concern the Medical Profession.
Complainant means -
(i) a consumer ; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or
(iii) the Central Government or any State Government ;
(iv) one or more consumers, where there are numerous consumers having the same interests ;
who or which makes a complaint.
Complaint means -
Any allegation, in writing made by a complainant that the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect.
Consumer means -
Any "person" who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised 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.
Consideration means fees /payment. Fees may have been fully paid in cash or cheque, or undertaking that it will be paid, which is accepted by the doctor/hospital. The fees may have been given partly (as advance) with the understanding that the remaining bill will be paid subsequently. The payment may be done by the patient himself, or by someone else for the patient, e.g., father for his child, husband for wife, any person for someone.
A person who receives medical treatment in Government hospital or charitable hospital free of cost is not a consumer under the Act.
In case of death of patient who is a consumer, legal heirs (representatives) of the deceased will be considered as "consumer". If the payment has been made by any person who is not a legal heir of the deceased he too will be considered as "consumer."
The three words used above (deficiency, person, service) explained under this act are as follows :
Deficiency means -
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.
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 -
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 ; Ďservice means service of any description.í
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 :-
This shall consist of :
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 -
The District Forum shall on receipt of a complaint -
(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 :-
(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 :
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.
It shall consist of -
Jurisdiction of the State Commission The State Commissioo entertain -
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
This shall consist of -
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 :-
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.
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.
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 ,
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.
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.
|CHARAKíS OATH |
According to this the teacher instructed the disciples in the presence of the sacred fire, Brahmanas and Physicians thus :
" Thou shalt be free from envy, not cause anotherís death, and pray for the welfare of all creatures. Day and night thou shalt not desert a patient, nor commit adultery, be modest in thy attire and appearance, not to be drunkard or sinful, while entering a patientís house, be accompanied by a person known to the patient. The peculiar customs of the patientís household shall not be made public."