Madras High Court
Dr. C.S. Subramanian And Others vs Kumarasamy And Others on 17 February, 1994
Equivalent citations: (1994)IMLJ438
Bench: A.R. Lakshmanan, Doraiswamy Raju
JUDGMENT Raju, J.
1. The above writ petitions involve for determination certain common and identical issues currently in controversy in the medical circles and consumer litigation relating to the applicability or otherwise of the provisions of the Consumer Protection Act, 1986 (Central Act 68 of 1986), (hereinafter referred to as "the Act"), to facilities made available by hospitals providing medical care and members of medical profession treating a patient, in the realm of diagnosis and treatment.
2. A brief reference to the stage and circumstances of the case which led to the filing of the above writ petitions individually would be necessary to appreciate the nature of the grievance sought to be vindicated by the parties on either side. Writ Petition No. 1953 of 1992 as the amended prayer stands, has been filed by two medical practitioners (husband and wife) for a writ of prohibition, prohibiting the respondents from exercising their jurisdiction against the medical practitioners on the basis of the complaint filed by the fourth respondent in C. P. O. No. 244 of 1991 on the file of the third respondent-District Consumer Redressal Forum. The fourth respondent claims to have approached the petitioners for treatment for stomach pain, that an operation was performed on him, that on account of giving I. V. drips and injections on the right hand continuously for three days, three fingers of the right hand have got to be amputated and skin grafting was also necessitated due to the alleged negligence and careless treatment by the petitioners and, therefore, staked a claim for being compensated in a sum of Rs. 99,500. The plea of the petitioners in this writ petition is that section 2(1)(o) of the Act cannot be claimed to include the service rendered by a private medical practitioner, that a medical practitioner cannot be condemned for negligence in view of the decision in Roe v. Ministry of Health [1954] 2 QB 66, that no medical practitioner can be an insurer for effecting a cure and if at all the only remedy of a person aggrieved on account of alleged negligence is the remedy under the general laws.
3. Writ Petition No. 5386 of 1992 was filed by a medical practitioner for a writ of declaration, declaring that section 2(1)(o) of the Act will not include the services of a medical practitioner and as such not amenable to the jurisdiction of the Consumer Protection Forum and clauses (b) and (c) of section 10, clause (b) of section 16 and clause (b) of section 20 of the Act are invalid. The petitioner who claims to possess MS, DLO, FACS and a practising ENT surgeon of 27 years standing treated the third respondent on being referred to him by a private hospital and after diagnosing his ailment performed an operation under general anaesthesia, that the third respondent was duly discharged and though asked by the petitioner to come for review the third respondent did not turn up and that the petitioner cannot be attributed with any negligence at all in the performance of the operation. The third respondent filed O. P. No. 48 of 1992 before the second respondent claiming a sum of Rs. 1,28,000 as compensation for the alleged lack of care while doing the first operation to remove the foreign body granuloma said to be resulting in the second operation and sufferings and expenditure. The plea of the petitioner is that mistaken diagnosis is not negligence, that doctor/surgeon cannot be held guilty of negligence in the absence of strict proof, that the proceedings before the Forum are summary in nature, that the constitution of the Forum is bad, that having regard to the decisions in J. N. Shrivastava v. Rambiharilal, , Chattand v. Bell 18 DLR and Roe v. Ministry of Health [1954] 2 All ER 131, the job of the doctors should be approached from that standpoint of the professional, that no medical practitioner is an insurer for effecting a cure nor should courts condemn an honest exercise of judgment even though the other practitioner or specialist disagrees with the professional diagnosis or treatment, that if at all the claims have got to be agitated before ordinary courts and that the provisions of the Act under challenge are violative of articles 14, 19(1)(g) and 21 of the Constitution of India.
4. Writ Petitions Nos. 3824 and 3825 of 1993 have been filed by one and the same medical practitioner (a) for a writ of prohibition, prohibiting the National Consumer Disputes Redressal Commission, New Delhi, from proceeding with O. P. No. 16 of 1993 filed by the third respondent against the petitioner and the private hospital concerned, claiming jointly and severally compensation to the tune of Rs. 20 lakhs; and (b) for a writ of declaration, declaring that section 2(1)(o) of the Act will not include the services of medical practitioner, and as such the petitioner not amenable to the jurisdiction of the Consumer Protection Forum and clauses (b) and (c) of section 10 and clause (b) of section 16, clause (b) of section 20 of the Act are invalid. The grievance of the claimant before the forum is that the petitioner performed the surgery laminectomy L4-L5 and foraminatomy L4-L5 and due to alleged deficiencies in the services rendered by the petitioner and the hospital the third respondent was put to physical and mental agony apart from monetary loss. The petitioner who claims to be a Professor of Neurosurgery, Madras Medical College and Neuro Surgeon, General Hospital, with a standing of 21 years is a consultant at the hospital in question and would contend that there was no negligence on his part in performing his job and that the services rendered by a private doctor/surgeon will not fall within section 2(1)(o) of the Act. In other respects, the petitioner has raised all and every one of the pleas raised by the petitioner in W. P. No. 5386 of 1992.
5. Writ Petition No. 15337 of 1993 has been filed by a private hospital owned and run by a medical practitioner and W. P. No. 15338 of 1993 has been filed by the said doctor in his individual capacity, praying for writs of prohibition, prohibiting the State Consumer Disputes Redressal Commission from proceeding with O. P. No. 295 of 1993 filed by the second respondent claiming a compensation of Rs. 9 lakhs for the death of the son of the second respondent. The medical practitioner claims to be a leading ENT specialist attracting patients not only in this country but also from outside India and that the second respondent brought his son Master Harish Reddy to have treatment for continuous left ear discharge of five years duration and hearing defect in the left ear. A left mastoidectomy and tympano plasty operation was said to have been performed and in the course of operation, the patient appears to have developed cardiac problems. While contending that section 2(1)(o) of the Act would not be attracted to the case of services rendered by a medical practitioner to a patient coming for treatment it is claimed that the Forum has no jurisdiction to entertain or proceed with the claim petition. It is also contended that the favourable treatment meted out to the Government doctors by excluding them from the purview of the Act would be in violation of article 14 resulting in invidious discrimination between the Government doctors and private doctors. It is also claimed that eminent doctors often have to undertake risky operations in the interests of patients themselves and a constant fear of threat of a litigation under the Act is likely to serve as a disincentive and thereby affect public interest only. According to this petitioner, though Parliament has chosen to include the housing construction while promulgating Ordinance 24 of 1993 notwithstanding the serious doubts raised about the inclusion of medical profession under the Act, there was no effort to specifically include them and, therefore, it should be considered that the intention of Parliament was not to include the same as part of the definition under section 2(1)(o) of the Act. While claiming that the Forum cannot be said to be the body competent to decide about the professional standards and the exigencies of a situation in the course of treatment of a patient, it is stated that the inclusion of medical profession within the purview of the Act would be against the public interest, arbitrary and violative of article 14 of the Constitution of India. It is also the claim of the petitioner that the Medical Council of India is the Forum competent to decide the question of shortfalls in the standard of treatment of a patient by a doctor and that the availability of two Forums for the same grievance is violative of article 14 of the Constitution of India. Reliance is also placed on section 24A introduced by the Ordinance 24 of 1993 to claim that the complaint filed in May, 1993, after a delay of nearly two years ought to have been dismissed.
6. Writ Petition No. 4209 of 1992 has been filed by a medical practitioner at Thirunelveli, for a writ of declaration, declaring that clause (o) of section 2(1) of the Act does not include the service rendered by a medical practitioner and consequently medical practitioners are not amenable before the Consumer Protection Forum. The fourth respondent is said to have filed before the third respondent, a claim under the Act, claiming a compensation of Rs. 95,000 for the alleged permanent disability of the left and He claims to be a dermatologist and a retired professor in the said discipline. In W. P. No. 16823 of 1992 a medical practitioner at Madras and another have filed the above writ petition for a writ of declaration, declaring that the provisions of the Consumer Protection Act, particularly sections 10, 13(3), 13(4), 13(5), 16(1)(b) to 20(1)(b) and 27 as unconstitutional and consequently forbear the fourth respondent-Forum from proceeding further with O. P. No. 396 of 1992 filed by respondents Nos. 1 to 3, claiming a compensation of Rs. 79,750 on account of the alleged callous, indifferent and negligent treatment said to have been given by the first petitioner. Writ Petition No. 2526 of 1992 has been filed by a doctor practising at Mannargudi, for a writ of prohibition, prohibiting respondents Nos. 2 and 3 from proceeding with the order passed in C. D. O. P. No. 91 of 1991 on the file of the second respondent and A. P. No. 227 of 1991 on the file of the third respondent. The second respondent-District Forum has awarded a compensation of Rs. 10,500 under section 14(1)(a) and an imprisonment of one year rigorous imprisonment in default of payment thereof for the alleged negligence in the treatment given by the writ petitioner resulting in the death of the wife of the complainant. Writ Petition No. 19498 of 1992 has been filed by a private hospital at Nungambakkam and a medical practitioner for a writ of declaration, declaring that the definition of service in section 2(1)(o) will not include services rendered by a medical practitioner and as such the petitioners are not amenable to the jurisdiction of the Consumer Forum. It is seen that O. P. No. 281 of 1992 has been filed against the writ petitioners claiming a compensation of Rs. 15,841.80 on various accounts for the alleged negligence in the treatment given to the third respondent herein. Writ Petition No. 14713 of 1991 has been filed by a medical practitioner at Chidambaram for a writ of certiorari to call for the records relating to the complaint in O. P. No. 25 of 1991, dated July 29, 1991, on the file of the District Forum at Thanjavur, made by the first respondent claiming a damage of Rs. 99,500 for the alleged negligent treatment accorded to the first respondent. In W. P. No. 13366 of 1992 the petitioner, a medical practitioner at Arakkonam, has filed the said writ petition for a writ of declaration that the services of the medical practitioner are not subject to the forums under the Act. The third respondent appears to have filed O. P. No. 247 of 1992 claiming a compensation of Rs. 7 lakhs due to the death of his wife on account of the alleged negligence in the treatment accorded to his wife.
7. Writ Petition No. 4432 of 1992 has been filed by a medical practitioner at Anna Nagar, Madras-40, for a writ of declaration as in W. P. No. 13366 of 1992 and it is seen that respondents Nos. 4 and 5 have filed O. P. No. 229 of 1991 before the Madras District Forum claiming a compensation of Rs. 95,000 for the alleged negligent treatment said to have been given to the wife of the fifth respondent resulting in her untimely death. Writ Petition No. 5275 of 1992 has been filed by a medical practitioner at Periyakulam, Madurai District, for a writ of declaration, in the teeth of a claim filed by the fourth respondent before the District Forum claiming a compensation of Rs. 73,000 for the alleged negligence in the treatment accorded to her by the writ petitioner. Writ Petition No. 14673 of 1992 has been filed by a medical practitioner at Madurai, in the wake of a complaint made by the third respondent against the petitioner and two others claiming a compensation of Rs. 95,000 for the alleged negligent treatment said to have been accorded to the complainant's son while treating his ailment in C. P. A. O. P. No. 161 of 1992 before the Madurai District Forum. Writ Petition No. 17284 of 1992 has been filed by a medical practitioner at Erode, praying for a writ of prohibition, prohibiting the respondents from proceeding with O. P. No. 319 of 1992 filed before the State Forum by the third respondent claiming by way of damages a sum of Rs. 5 lakhs on account of the death of his son due to the alleged negligent treatment accorded to his son. Writ Petition No. 2521 of 1993 has been filed by a private mission hospital at Madurai and a medical practitioner in the teeth of a petition filed by respondents Nos. 3 and 4, claiming a compensation of Rs. 5,27,612 for the death of their daughter due to the alleged negligent medical treatment given to her by the petitioners. Writ Petition No. 5624 of 1992, has been filed by a private hospital at Theni, for a writ of prohibition, prohibiting the first respondent from proceeding with the trial of C. P. A. O. P. No. 256 of 1991 on the file of the District Forum at Madurai, claiming a compensation of Rs. 95,000 for the alleged negligent and defective sterilisation performed on the second respondent. The grievance of the complaint is that against total immunity from pregnancy she conceived again.
8. Writ Petition No. 20474 of 1993 has been filed by a chief cardiovascular and thoracic surgeon at Madras and three other medical practitioners for a writ of declaration, declaring that section 2(1)(o) of the Consumer Protection Act, 1986, will not include the services of a medical practitioner and they are not amenable to the jurisdiction of the Forums under the Act and clauses (b) and (c) of section 10, clause (b) of section 16 and clause (b) of section 20 are invalid. The petitioners have come to this court in view of O. P. No. 206 of 1993 filed by the fourth respondent herein before the National Commission claiming a compensation of Rs. 20,00,000 for the death of his minor son due to the alleged negligence in the treatment and operation of his son. Writ Petition No. 7038 of 1993 has been filed by a medical practitioner at Udumalpet, Coimbatore district for a writ of declaration, declaring that the provisions of section 19(1)(b) and (c), section 13(3)(4) and (5), section 14(1)(d) section 16(1)(d), section 20(1)(d) and section 27 of the Consumer Protection Act, 1986, are unconstitutional and unenforceable in the context of the filing of O. P. No. 227 of 1993 by respondents Nos. 3 and 4, before the second respondent District Forum claiming a compensation of Rs. 95,000 for the alleged deficiency in service rendered by the petitioner resulting in the termination of the pregnancy relating to a healthy male child, against the petitioner and another.
9. Writ Petition No. 21494 of 1993 has been filed by a medical institution represented by its proprietor who is a medical practitioner himself for a writ of prohibition, prohibiting the respondents the Government of India, the State and the District Consumer Forum in the city of Madras from entertaining under the Consumer Protection Act, any complaint against the doctors. It is seen that the husband of a patient who was treated in the petitioner-institution has filed O. P. No. 29 of 1993 before the State Forum, claiming a compensation of Rs. 10 lakhs on account of the death of the patient who was herself a doctor in Government service in Andhra Pradesh due to the alleged negligent treatment said to have been accorded to the patient. The petitioner claims apart from his proficiency and expertise in the field that the Forums constituted under the Act at best have only a statutory status and cannot be considered to have constitutional authority to transgress the constitutional and valuable fundamental rights of the petitioners. It is also claimed that a quasi-judicial body appointed by the executive wing of the Government cannot claim to have jurisdiction to abridge the constitutional rights. Section 2(1)(g) and (o) of the Act are said to be violative of article 14 of the Constitution of India. It is also contended that only a strictly judicial process and a body that it is properly and fairly constituted alone could if at all be vested with the ominous power to tarnish the image, name and skill of the petitioner and the forums under the Act cannot be allowed to be such things.
10. Writ Petition No. 283 of 1993 has been filed for a writ of declaration and Writ Petition No. 284 of 1993 has been filed for a writ of prohibition by one and the same medical practitioner at Madras and W. Ps. Nos. 285 and 286 of 1993 have been filed by another medical practitioner, Madras, for the same reliefs in the teeth of the claim made in O. Ps. Nos. 280 and 374 of 1992 respectively. The claim in O. P. No. 280 of 1992 has been filed against the petitioners in W. Ps. Nos. 283 and 284 of 1993 claiming a compensation of Rs. 71,26,000 on account of the death of a patient, treated by the petitioner/doctor who happened to be the husband of the fourth respondent and the father of respondents 5 and 6 due to the alleged deficiency and negligence in treatment given to the deceased. The complaint in O. P. No. 374 of 1992 has been filed against the petitioner in W. Ps. Nos. 285 and 286 of 1993 claiming a compensation of Rs. 2,70,000 on various accounts on the ground of the alleged deficiency and negligent treatment meted out to the fourth respondent in this writ petition.
11. Writ Petitions Nos. 3826 and 3827 of 1993 have been filed for a writ of declaration and for a writ of prohibition, prohibiting the State Consumers Forum from proceeding with O. P. No. 439 of 1992 filed by respondents Nos. 3 to 7 claiming a compensation of Rs. 2,00,000 and the refund of Rs. 35,000 due to the alleged defective services rendered negligently while treating the father of respondents Nos. 4 to 7 and the husband of respondent No. 3 resulting in the death of the patient. Writ Petition No. 5149 of 1993 has been filed by Kasthurbai Hospital, Gandhigram, for a writ of certiorarified mandamus to call for and quash the order dated December 26, 1991, in O. P. No. 33 of 1991 and, consequently, forbear the District Forum at Sivaganga from proceeding with the original petition filed by the third respondent claiming a compensation of Rs. 86,000 on account of the deficiency and defective sterilisation effected as a consequence of which the third respondent had given birth to a male child. In the said order dated December 26, 1991, the District Forum has overruled the preliminary objection raised rejecting the plea of lack of territorial jurisdiction.
12. Writ Petition No. 5171 of 1992 was filed by a body registered as the Family Planning Association of India, Dindigul Branch, for a writ of certiorarified mandamus to call for and quash the proceedings of the second respondent relating to the interim order dated February 26, 1992, in C. D. No. 98 of 1991 and to forbear from proceeding further with the said C. D. filed by the third respondent before the District Forum at Dindigul, claiming a compensation of Rs. 25,000 on account of the alleged defective sterilisation process performed on the third respondent. The petitioners in both these writ petitions claim that they performed the sterilisation operations in furtherance of the implementation of the programme of the Government of India for family planning and they have not received any consideration from them by charging any fee for the family planning operations. In other respects, it is contended that the provisions of the Act have no relevance or application to the cases of the nature in question.
13. Shri K. Parasaran, learned senior counsel, spear-headed the attack on behalf of the petitioners. The learned senior counsel contended that on a proper interpretation of the provisions of the Act in the light of the objects and reasons as also the scheme underlying the provisions therein, it could not be legitimately held that the services of a medical practitioner or those rendered in a hospital are comprehended within the scope of the Act or that the medical practitioner or the hospitals could be held to be amenable to the jurisdiction of the various Consumer Disputes Redressal Forums created under the Act. It is also the contention of learned senior counsel that a patient who undergoes treatment under a medical practitioner or in a hospital providing medical treatment cannot be considered to be a consumer or the treatment given to a patient, service within the meaning of the Act and that the provisions of section 2(1)(c), (f), (g) and (o) of the Act have got to be understood and construed in the context of unfair trade practice only. In substance, the claim is that professional services of the nature rendered by a medical practitioner or for that matter a hospital is outside the purview of the Act and the Forums constituted thereunder. The competency of the Forums constituted to decide complaints involving substantial money claims and the professional career and reputation of a medical practitioner is challenged on the ground (a) that the constituent members are neither qualified nor eligible or possessed of the required calibre to decide such complicated and technical issues of high standards; (b) the absence of specific norms or guidelines in the matter of selection and appointment of the members of the Forum; (c) the summary nature of the proceedings to be conducted and the constraints based upon duration of time and the nature of the evidence that could be led before such forums; (d) the manner of adjudication of the issues according to the opinion of the majority of the members constituting the Forum, and the lack of judicial experience and judicious approach and conscience in the members other than its President, and consequently as being violative of article 14 of the Constitution of India. The provisions in section 13(3) of the Act to the extent it attempts to exclude the principles of natural justice are said to be violative of article 14 of the Constitution of India. Section 27 of the Act is equally said to be violative of articles 14, 19(1)(g) and 21 of the Constitution of India, in so far as it confers sweeping, unguided, arbitrary powers of imposing fine or sentence of imprisonment. The further contention on behalf of the petitioners is that though the Act purports to include "service of any description" it really aims at ordinary and obvious things and the same becomes amply clear from the debates on the Bill before both Houses of Parliament also.
14. Mr. Habibullah Badsha, learned senior counsel, appearing for some of the writ petitioners contended that the treatment given by a doctor who is a medical practitioner would not come within the purview of "service" as defined under section 2(1)(o) of the Act and if it is considered to comprehend medical practitioner also, then section 2(1)(o) of the Act should be declared unconstitutional and invalid. It is the further contention of learned senior counsel that, any rate, it would stand excluded as amounting to service under a contract of personal service and falling within the exclusion clause in section 2(1)(o) of the Act. The provisions relating to the constitution of the Forums at District, State and National levels are said to be arbitrary, unreasonable and ultra vires article 14 of the Constitution of India for want of proper or sufficient guidelines, and section 27 of the Act without any sufficient procedure or guidelines is said to suffer from the same vice and consequently the Forums under the Act cannot be held to possess the power to punish for offences.
15. Mr. R. Gandhi, learned senior counsel appearing for some of the petitioners, contended, apart from adopting the submissions of the other learned counsel, that the constitution of the Forum with a majority of non-judicial personnel or personnel without legal training to adjudicate upon disputes of substantial nature involving serious rights of parties to life and liberty constitutes violation of the provisions of articles 14 and 21 and also the Directive Principles of State Policy of the Constitution of India. It is also contended that proper procedure established by law is a right secured under article 21 to any one whose liberty and life are deprived and that arbitrariness is writ large on the face of the procedure prescribed in section 13 of the Act and that, therefore, is should be declared that a medical practitioner cannot be made answerable for any claims under the Act before the Forums constituted under the Act.
16. Mrs. Nalini Chidambaram, learned senior counsel appearing for the petitioner, in W. Ps. Nos. 15337 and 15338 of 1993 contended that a patient vis-a-vis a medical practitioner is not a consumer within the meaning of section 2(1)(d)(ii) of the Act and that the treatment accorded by a doctor will not amount to service within the meaning of section 2(1)(o) of the Act. Argued learned counsel further that the constitution of the forum and its procedure would go to sufficiently indicate that it was not the intention of the Legislature to put professional persons to test or trial before the forums constituted under the Act. It is also contended that it would be against public interest to bring medical practitioners within the purview of the Act since the decisions relating to the nature of treatment, the drugs to be administered, the operations to be performed, etc., should be within the discretion of the professional himself and such decisions should not be left for others to be decided failing which the doctors would be driven to the necessity of defensive treatment involving unnecessary expenditure, time and tension to the patients concerned and that it would not be in the interests of either the patient, or the doctor or the profession as a whole. The exclusion of Government doctors or medical practitioners in Government hospitals and such institutions would constitute hostile discrimination and violative of article 14 of the Constitution of India. Finally, it was contended that in spite of the public controversy as also conflicting claims before various forums openly going on in the country, the fact that the State which had occasion to clarify the position has not done so even while promulgating Ordinance No. 24 of 1993 should be a pointer to the fact that the object of the State was not to subject the medical practitioners to the jurisdiction of the forums constituted under the Act.
17. Mr. M. Veluswami, learned counsel for the petitioner in W. Ps. Nos. 5149 and 5171 of 1992 contended that respective petitioners are service oriented institutions carrying on the objectives of the Central Government in implementing the family planning schemes and that necessary incentives under the scheme are given to the patient as well as the promoters like the petitioners only by the Central Government. Argued learned counsel further, since the petitioners have rendered only free service in furtherance of a contract of personal service and no charge or fee was collected from the patient for the treatment or operation performed the petitioners would at any rate be outside the purview of section 2(1)(o) of the Act. Mr. C. Ramakrishnan, learned senior counsel appearing for the petitioner in W. P. No. 21494 of 1993 contended that the provisions of the Act and the rules made thereunder, if applied to a medical practitioner, and if construed to cover a medical practitioner treating a patient it would have the effect of overriding the fundamental rights secured to a doctor under articles 14, 19(1)(g) and 21 of the Constitution of India. It is the submission of learned counsel that the fundamental rights of the petitioners secured under the Constitution of India cannot be taken away or truncated or abridged except by another recognised constitutional functionary and that too except in accordance with the valid procedure established by law and the provisions of the Act constitute serious inroads into the fundamental rights of the petitioner to carry on his profession. Learned senior counsel further contended on the basis of his encounters and experience in the conduct of the case before the State forum in this case, that suitable safeguards and devices should be thought of and incorporated to ensure a better atmosphere so that better justice could be rendered. The grievance in this regard varies from the uniform view or consensus always said to be expressed by these forums, entertaining for trial mechanically or automatically even cases where the required prima facie case was conspicuously absent about the deficiency or negligence in the services rendered and the need for screening complaints, ill-treatment of witnesses, who are professionals, want of opportunity to the opposite parties to take preliminary objections and the need to render decision on the lack of prima facie case on the very pleadings not warranting further trial on merits, proper prescription of the form of trial on par with the one prevailing in ordinary courts, summary procedure to defend also lending proof of lack of judicially acceptable standards and norms in the conduct of cases and so on. That apart, all learned counsel uniformly espoused a grievance about the nature and extent of liability to which a medical practitioner can be subjected on the alleged ground of negligence or deficiency in the treatment of a patient and the resultant discriminatory treatment in the matter of trial and disposal of a claim or complaint merely depending upon the choice of the claimant, since section 3 declares 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.
18. Per contra S. Veeraraghavan, Additional Central Government Standing Counsel, contended that the decision of the National Forum in Cosmopolitan Hospital v. Smt. Vasantha P. Nair [1992] 1 CPR 820; [1992] 3 Comp LJ 80, the decisions in Dr. (Mrs.) Omana Eapen v. Consumer Dispute Redressal Commission for Kerala State (O. P. No. 10911 of 1991, decided on October 6, 1993 (Ker)), Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, and Dr. A. S. Chandra v. Union of India [1992] 1 ALT 713, and the decision of a learned single judge of this court since reported as Dr. A. Indira Narayanan v. Government of India [1994] 1 MLJ 24; [1996] 86 Comp Cas 740 squarely answer all the issues raised on behalf of the petitioners, against them and that he would adopt the ratio of those decisions as submissions on his behalf. Placing reliance upon an article published in AIR 1993 Journal 181, learned counsel contended that being a socio-economic welfare legislation, the provisions require to be liberally construed having regard to the speedy justice aimed as the goal without much expenditure for litigation in the shape of heavy court fee on the claim.
19. Mr. V. Prakash, learned counsel for the respondent, submitted that the enactment in question does not directly affect the practice of the medical profession, that the medical practitioners have no right to be negligent in the discharge of their duties and consequently the alleged violation of article 19(1)(g) of the Constitution has no merit. As for the grievance made about the constitution of the forum, learned counsel submitted that the provision of two tiers of appeal sufficiently takes care of the position and serves as a sufficient safeguard. It was also contended by learned counsel that the different aspects under the two different enactments cannot be compared to plead a case of discrimination for purposes of article 14 of the Constitution of India, that the procedure laid down in section 13(1) and (2) sufficiently conforms to the requirements of the principles of natural justice, that vexatious claims that may be filed could be sufficiently dealt with under section 26 of the Act, that the duty to give reasons and the provision of appeal or scope for judicial review under articles 226 and 227 of the Constitution of India serves as sufficient safeguard against any arbitrariness or unreasonableness and that no one party to a proceeding has any right to a prolonged trial and it could not be said that after the enactment in question professionals have been hit hard or their position stood worsened. For all the reasons, learned counsel contends that the exclusion of the medical practitioners from the purview of the Act would otherwise lead to infringement of the rights of citizen/patients secured under article 21 of the Constitution of India.
20. Mr. K. Chandru, learned counsel for the complainant/respondent in W. P. No. 13366 of 1992, etc., contended that the Act was necessitated to provide expeditious and speedy remedies, that judicial powers are not the exclusive privilege of the courts only and different forums can be created for different purposes to adjudicate disputes of special categories or types, that there is nothing wrong or illegal in the manner of constitution of the forums and the method of their functioning and the procedure laid down to regulate such proceedings, that the remedies made available by way of appeal, revision and judicial review are sufficient safeguards in themselves and that no exception could be taken to the various provisions in the Act which according to learned counsel are akin to the Monopolies and Restrictive Trade Practices Act, 1969. While contending that the inclusive definition of service takes into its fold the medical practitioner and services rendered to a patient, learned counsel also stated that the same cannot be treated as contract of personal service and that the accountability of even professionals like medical practitioners is not only desirable but was well known even during the olden days as indicated in Artha Sastra of Kautilya. On the above, it is contended that the Act in question is a revolutionary move in an attempt to rewrite traditional concepts and the same ought not to be frozen even at the threshold and consequently there are no merits in the contentions raised on behalf of the petitioners.
21. Mr. Kabir, learned counsel for the second respondent in W. P. No. 5624 of 1992 contended that the procedure envisaged under section 13 of the Act is judicial in nature, that the rule of audi alteram partem has its own exceptions and deviations and post-decisional hearing has also been recognised to be a proper safeguard, that the several decisions so far rendered by some of the forums would show that they are being dealt with objectively and on sound and proper lines and basis and there is no justification in the apprehensions and fears of possible abuse expressed by learned counsel on behalf of the petitioners. Apart from relying upon the inclusive nature of the definition of service under the Act, learned counsel also endeavoured to impress upon the need for a liberal construction keeping in view the fact that it is a welfare-oriented beneficial legislation. Submissions have also been made regarding the standard of duty and care expected of medial practitioners in the treatment of patients.
22. Mr. Chinnaswami, learned senior counsel, contended that courts must always presume in favour of the constitutionality of the statutes, that the provisions of section 13 sufficiently satisfied the requirements of the principles of natural justice and that in any event, the procedure laid down therein must be considered to be the procedure established by law and, therefore, there is no scope for further scrutiny of its constitutional validity as such vis-a-vis article 21 of the Constitution of India.
23. Mr. Sriram Panchu, learned counsel for the fourth respondent in W. P. No. 285 of 1993, contended that the legislation in question being a beneficial oriented one, aims at removing the difficulties faced by common litigants in the form of high litigation expenses and procedural wrangles so as to enable them to have earlier access to and also to secure quick justice and that no exception could be taken to the speedy disposal contemplated under the Act. It is also the submission of learned counsel that the definition of service is very wide and all comprehensive and that the decision of the National Forum on this aspect squarely governs this case against the petitioners. Further, it is claimed that the provisions of section 13 itself pave the way for observing an elaborate procedure and that as a matter of fact, the forums are adopting the normal procedures of courts and that the internal checks in the form of appeals and judicial review under articles 226 and 227 of the Constitution of India ensure fairness and that it is a matter of record that the forums do not hustle matters to finalise the proceedings within 90 days. Argued learned counsel further that carelessness and sheer negligence is on the increase and, therefore, members of the public need effective and expeditious remedies. While contending that non-judicial persons appointed as members are possessing knowledge of life and experience in matters of public life relating to people and society and that the valuable experiment that is being carried out under the Act deserve to be appreciated and approved. Finally, it was contended that the medical profession had no self-regulations for disciplining themselves and no one can claim reputation to be a fundamental right and a strict enforcement of the provisions would help the medical practitioners also to act with great care and caution resulting in the saving of more lives of citizens. As for the plea based on the possibility of increase in defensive type of medicine, on account of the Act, it is contended that as a legal concept defensive medicine does not make sense and that by itself could not protect a doctor from a claim in negligence by carrying out an unnecessary test or procedure.
24. Miss Nappinnai, learned counsel for the fourth respondent in W. P. No. 4432 of 1992 contended that modernisation of the judicial procedures and forums are the need of the hour and that there is every justification to liberally construe the provisions of the Act so as to cover the medical practitioners failing which the very object of the legislation would stand defeated.
25. Learned counsel for the petitioners, in the course of their reply, contended that a welfare legislation must hold the scales of balance evenly and not to the disadvantage of one side and that there is absolutely no safeguard for the medical practitioners who are often obliged to handle risky situations over which there could be no effective human control. The difference between contract for service or contract of service is said to be of no significance for the problem under consideration. It was also submitted that giving up of cases where risk is involved would only have an adverse impact on the welfare of a patient and the scope for developments and innovations will stand completely retarded.
26. We are not obliged in these cases to embark upon an enquiry into or authoritatively or exhaustively decide as to the nature and categories of lapses or cases of negligence or deficiency in the performance of a medical practitioner which render him liable for payment of compensation or damages to the patient concerned or his representatives. But, at the same time, it becomes necessary to advert to the statement of law on the subject, generally, to appreciate the grievances expressed by learned counsel appearing for the parties on either side, in vindicating their respective cause both for and against the need or desirability of subjecting medical practitioners and their professional ventures to the jurisdiction of the forums created under the Consumer Protection Act, 1986. It is by now well settled that there is no absolute or total immunity to a medical practitioner from liability for his negligence which may be determined by the rules of tort, contract or equity. Breach of duty on the part of a medical practitioner may arise on account of breach of the implied contractual duty to exercise reasonable skill and care and breach of duty of care owed by a medical practitioner to his patient whether or not there is any contract between them. The test as to whether there has been negligence or not, in a situation which involves the use of some special skill or competence, is the exercise of the ordinary skill of an ordinary competent man exercising and professing to have that special skill. The true test for establishing negligence in diagnosis or treatment, medicinal or surgical, on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Every person who enters a learned profession undertakes to bring to the exercise of it a reasonable and proper degree of care and skill but not that he will use the highest possible degree of skill or ensure cure or success of the venture. Instead one can be presumed to have undertaken to bring a fair, reasonable and competent degree of skill alone. Imposing of liability on hospitals and doctors for everything that happens to go wrong was held to mean doing disservice even to the community at large, and that the conditions in which hospitals and doctors have to work cannot be completely lost sight of. The profession of medicine, perhaps, is a field where results are not expected to be or could be guaranteed since a great deal of medical treatment, even if administered with all due skill and care involves some degree of risk and on occasions the medical treatment involves making a choice between competing risks. It would be all the more so in the case of a surgeon performing an operation which involves multifarious difficulties presented by the particular circumstances of case, the condition of the patient and the whole set of problems arising out of the risk to which he is being exposed, difficulties of the surgeon's choice between risks and the paramount need of his discretion being unfettered if he thinks it right to take one risk to avoid another.
27. Medicine is an inexact science and it is unlikely that a responsible doctor would intend to give an assurance to achieve a particular result. Not every one of mere error of judgment can be castigated as negligence in a legal sense but, it is only such errors which a reasonably competent professional man, acting with ordinary care, might commit. Errors in treatment can take a multitude of forms and for variety of reasons such as accidental medical injuries which are a consequence of the progress of the disease under treatment, diagnostic error which could only have been avoided by hindsight, unavoidable complication however carefully and competently the procedure was carried out, infections arising under circumstances which made them difficult to avoid, complications of drug therapy carried out in accordance with the instructions of the drug manufacturer. The authorities who run a hospital, be they local authorities, Government or any other corporation are in law under the self same duty as the humblest doctor and since they must use reasonable care and skill to cure a patient of his ailment and are bound to act through staff they employ they are just as liable for the negligence as is any one else who employs others to do his duties for him. That is also because even if they are not servants, they are to be treated as agents with the only exception in the case of such staff selected and employed by the patient himself. There is very little difference between the obligations undertaken by a medical practitioner in private practice and those imposed on his colleagues and counterparts working in the hospitals run and administered either by the Government or local authorities or philanthropic bodies. All medical practitioners thus owe a duty to their patients to exercise reasonable care in carrying out their professional skills of diagnosis, advice, treatment or surgery.
28. Courts also cannot speculate upon medical matters or come to conclusions or diagnoses which are not supported by some expert evidence on the basis of which courts must also be in a position to understand the position before arriving at a conclusion on the question of liability of a medical practitioner for damages for negligence. The expert evidence also has an explanatory or didactic function of explaining the technical issues as fully as possible in a language comprehensible to lay men, viz., the nature of patients' original condition, the manner of diagnosis and the nature of treatment given, the consequences of the treatment and how those consequences flowed from the treatment given. Further, the court should also have the assistance in deciding whether the acts of omission of the defendant really constituted negligence by explaining the current state of knowledge at the time when the patient was treated, the approved practice of different schools of thought currently in vogue and the experience and skill usually displayed by the medical practitioner with the particular specialisation of the defendant, though ultimately it is for courts only to decide on the totality of the evidence, the issue before the court being a mixed question of fact and law. That is because, at times the treatment may involve also diagnosing a relatively uncommon case of a patient or a disease and no exception could be taken to the action of the medical practitioner, if the method of cure adopted is found acceptable to a widely respected body of professionals. That apart, medicine has not also yet reached a stage and may be it never will, when the adoption of a particular procedure either medicinal or surgical will produce a certain positive result. Having regard to all these peculiar situations in the field of medical treatment and the further fact that a claim for compensation against a medical practitioner not only involves mere financial loss but the very professional reputation and the future career would be at stake accompanied by his professional incompetency, allegations of negligence against a medical practitioner should be considered as very serious and the standard of proof of fault also should be of a high degree of probabilities.
29. Learned counsel appearing on either side adverted to a volume of case law, but we do not consider it necessary to refer to those decisions and, in our view, it would suffice to refer to only such of those decisions which are directly in point. On behalf of the petitioners, the decisions in Kiran Bedi v. Committee of Inquiry, and Delhi Transport Corporation v. D. T. C. Mazdoor Congress , were cited to highlight the submission that the right to life, a basic human right assured under article 21 of the Constitution of India, comprehends something more than mere animal existence, i.e., the dignity of the individual and it does not only mean physical existence, but includes basic human dignity and personal reputation. It was also emphasised in the decision in Frances Coralie Mullin v. Union Territory of Delhi, AIR 1981 SC 746; [1982] 52 Comp Cas 554 (SC) that it is for the court to decide in exercise of its constitutional power of judicial review whether the deprivation of life or personal liberty in a given case is by procedure which is reasonable, fair and just. The decision in State of West Bengal v. Anwar Ali Sarkar, , was relied upon in support of the submission that in the absence of a valid classification of claims or cases the mere object of speedier trial of cases or claims by itself would provide no basis of valid classification justifying differential treatment. Special emphasis was laid on para 93 of the decision which is as hereunder (at page 104) :
"Tested in the light of these considerations, I am of the opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of article 14 and is therefore bad. When the forth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to may mind is the most important of all. We find men accused of heinous crimes called upon to answer for their lives and liberties. We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim. It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of Government, whether the process can be scientifically classified and labelled or whether it is an experiment in speedier trials made for the good of society at large. It matters not how lofty and laudable the motives are. The question with which I charge myself is, can fair-minded, reasonable, unbiased and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that. On that short and simple ground I would decide this case and hold the Act bad."
30. Strong reliance was also made upon the decision in Special Courts Bill, 1978, In re, . In the said decision, the apex court considered exhaustively case-laws on the subject pertaining to the power of the Legislature to create and provide for special forums for entertaining an adjudication of a special classes of claims or cases. It was also held that the question as to whether such a provision violates the guarantee of equality secured in article 14 of the Constitution of India, is as important as the question of legislative competency to enact such a provision. While emphasising the need that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and the said differentia must have a rational relation to the object sought to be achieved by the Act. The following principles were also highlighted in the said decision (at page 510) :
"Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
Classification necessarily implies the making of a distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that upon the class are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality.
Whether an enactment providing for special procedure for the trial of certain offences is or is not discriminatory and violative of article 14 must be determined in each case as it arises, for, no general rule applicable to all cases can safely be laid down. A practical assessment of the operation of the law in the particular circumstances is necessary.
A rule of procedure laid down by law comes as much within the purview of article 14 as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for relief and for defence with like protection and without discrimination."
31. While adverting to the aspect of exclusion of the principles of natural justice, special emphasis has been made relying on the decisions in Swadeshi Cotton Mills v. Union of India, and Charan Lal Sahu v. Union of India, . While declaring the position that the courts must make every effort to salvage the cardinal rule of audi alteram partem and ensure reasonable opportunity to a person aggrieved, principles of natural justice were held to be not the creation of article 14 of the Constitution of India, but article 14 was really their constitutional guardian and whenever a legislation expressly or by necessary implication excludes their applications, it requires close scrutiny by the court. In S. P. Sampath Kumar v. Union of India, AIR 1987 SC 386, the apex court while holding that judicial review is a fundamental aspect of the basic structure of our Constitution, it was held that a tribunal or a forum newly constituted to deal with a category of cases to the exclusion of the ordinary courts must preserve the independence of the judiciary and should not give over weightage to the role of non-judicial members constituting such forum.
32. In the decision in Collector of Customs v. Sampathu Chetty, , as also in Special Courts Bill, 1978, In re, , it was held by the apex court that a statute which is otherwise invalid as being unreasonable or discriminatory cannot be saved by its being administered or applied reasonably and that the constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. Relying upon the decisions in Sivagaminatha Moopanar and Sons v. ITO [1955] 28 ITR 601 (Mad); AIR 1956 Mad 1 and Jolly George Varghese v. Bank of Cochin , it was contended that the provisions of section 27 of the Act have a consequence of creating a penal offence and in so far as the said provision provides for the punishment of imprisonment extending to three years with or without penalty it is violative of article 21 of the Constitution of India. The decision in State of Madras v. Balamanavala Reddiar, , is relied upon to contend that in view of the declaration contained in section 3 of the Act 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, the decisions of the forums under the Act cannot be held to be final and a suit against the same cannot be said to be barred even on the principles of res judicata. The decisions reported in Raipur Municipality v. State of M. P., AIR 1970 SC 1923, Dadaji v. Sukhdeobabu, , South Gujarat Roofing Tiles Manufacturer Association v. State of Gujarat , Mahalakshmi Oil Mills v. State of A. P. and State of Karnataka v. Ranganatha Reddy, , were relied upon to justify a restricted construction of the definition contained in section 2(1)(o) of the Act. Reliance has also been placed on the decisions reported in Dwarka Prasad Laxmi Narain v. State of U. P., , Air India v. Nergesh Meerza and Express Newspaper (P.) Ltd. v. Union of India , to substantiate the claim that the absence of guidelines in the matter of appointing the members of the various forums constituted under the Act renders those provisions arbitrary, unreasonable and violative of article 14 of the Constitution of India. The decisions reported in Diplomat Engineers v. Byford Leasing Ltd. [1991] 2 CPR 53 and Special Machines v. Punjab National Bank [1990] 1 Comp LJ 331; [1991] 1 CPR 52, were referred to, to substantiate the claim that the various forums constituted under the Act have summary jurisdiction and in cases where complicated issues are raised they have expressed their disinclination to decide such issues. The decision reported in Subhaschandra N. Pandya v. Shailesh J. Shah [1991] 2 CPR 537 and Y. Meenakshi v. Dr. H. Nandeesh [1991] 2 CPJ 533 were relied upon to show that the treatment by a medical practitioner would constitute contract of personal service and, consequently, stood excluded from the definition of section 2(1)(o) of the Act.
33. Learned counsel appearing for the respondents relied upon the decisions reported in Cosmopolitan Hospital v. Smt. Vasantha P. Nair [1992] 1 CPR 820; [1992] 3 Comp LJ 80 and Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, , Dr. A. S. Chandra v. Union of India [1992] 1 ALT 713 and Dr. A. Indira Narayanan v. Government of India [1996] 86 Comp Cas 740 (Mad) in support of the plea that the definition of service in section 2(1)(o) of the Act must be liberally and widely construed so as to take within its fold the medical practitioner and a hospital undertaking treatment of a patient. Further reliance was placed on the decisions reported in State of Uttar Pradesh v. Chhotey Lal Pandey , Mahindra and Mahindra Ltd. v. Union of India [1979] 49 Comp Cas 419 (SC), ESI Corporation v. High Land Coffee Works of PFX Saldanha and Sons and National Textile Corporation Ltd. v. Sitaram Mills Ltd. [1986] 61 Comp Cas 373 (SC), Lucknow Development Authority v. M. K. Gupta [1994] 80 Comp Cas 714 (SC) to support the stand for a liberal interpretation being given to the inclusive definition contained in section 2(1) of the Act keeping in view the beneficial nature and the welfare object of the legislation.
34. The status, the nature of powers and method of enquiry and manner of adjudication by the redressal forums created under the Act may be usefully adverted to before embarking upon a consideration of the various issues in these cases since much was said about the inadequacy of the procedure to effectively adjudicate the complicated issues that may arise in the claims made before these redressal forums against the medical practitioner and the hospitals. Sections 10, 16 and 20 of the Act deal with the composition of the District Forum, the State Commission and the National Commission respectively. While a District Forum shall have a person who is or has been or is qualified to be a District Judge as its President, the State Commission shall have a person who is or has been a judge of a High Court as its President and the National Commission shall have a person who is or has been a judge of the Supreme Court as its President. The District Forum and the State Commission shall have two other members besides the President and the National Commission shall have four other members besides the President. The President of the State Commission shall be appointed after consultation with the Chief Justice of the High Court and the appointment of the President of the National Commission shall be made after consultation with the Chief Justice of India. So far as the other members to be appointed to the three forums are concerned, they shall be persons of ability, integrity and standing and have adequate knowledge or experience of 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 members other than the Presiding Officers of these bodies shall be appointed by the State Government concerned and that of the National Commission by the Central Government in consultation with a committee consisting of the authorities specified in the relevant provisions therefor and the President of the District Forum also shall be so appointed by the State Government. The District Forum and the State Commission shall after the amendments introduced in 1993 have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs and twenty lakhs respectively and any such claims exceeding rupees twenty lakhs shall be dealt with by the National Commission.
35. The three forums shall not admit a complaint unless filed within one year from the date on which the cause of action has arisen and power has been conferred upon them for condoning the delay for reasons to be recorded if the complainant satisfies that he had sufficient cause for not filing the complaint within such period. The State Commission and the National Commission have both original and appellate jurisdictions as against the District Forum which has only original jurisdiction; being an authority at the grass roots level, in the hierarchy. Whereas the procedure prescribed in sections 12 to 14 of the Act shall apply to the District Forum and State Commission, the National Commission shall have the powers of a civil court as specified in sub-sections (4) to (6) of section 15 and the power of issue an order to the opposite party directing him/her to do any one or more of the things referred to in clauses (a) to (i) of sub-section (1) of section 14 and such procedure as may be prescribed by the Central Government. Section 12 of the Act provides for a complaint being filed before a District Forum in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, by the consumer concerned, or any recognised association whether the consumer concerned is a member of such association or not or one or more consumers where they are numerous in number having the same interest with the permission of the Forum on behalf of or for the benefit of all the consumers so interested and the Central Government or the State Government.
36. Section 13 of the Act which deals with the procedure to be followed on receipt of a complaint, stipulates that if it relates to any goods the District Forum shall refer a copy of the 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, and if the opposite party denies or disputes the allegations contained in the complaints or omits or fails to take any action to represent his case within the time granted by the Forum, it shall proceed to "settle" the consumer dispute in the manner provided in the other provisions in section 13. Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the Forum shall obtain a sample of the goods from the complainant and refer the same to the appropriate laboratory with a direction to make analysis or test as may be necessary to find out whether the goods suffer from any defect alleged or any other defect and to report the findings thereon to the Forum within 45 days or such extended period. Provision is also made to collect the required money to meet the expenses for the test from the complainant, to be remitted to the laboratory and on receipt of the report from the laboratory, if any of the parties disputes the correctness of the findings in the report to require them to submit in writing his objections and to give reasonable opportunity of "being heard" as to the correctness or otherwise of the report to the complainant as well as the opposite party as to