Madras High Court
Dr. C.S. Subramanian vs Kumarasamy And Others on 17 February, 1994
Equivalent citations: [1996]86COMPCAS747(MAD)
Bench: A.R. Lakshmanan, Doraiswamy Raju
JUDGMENT Raju, J.
1. The above writ petitions involved 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. W.P. No. 1953 of 1992 as the amended prayer stands, has been filed by two Medical Practitioners (husband and wife) for the 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 3 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 services rendered by a private Medical Practitioner, that a Medical Practitioner cannot be condemned for negligence in view of the decision reported in 1954(2) Q.B. 66 (Roe v. Minister of Health and Another), that no Medical Practitioner can be an insurer of 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. W.P. No. 5386 of 1992 was filed by a Medical Practitioner for a writ of declaration, declaring that clause 2(1)(o) of the Act will not include the services of a Medical Practitioner and as such a 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 M.S., D.L.O., F.A.C.S. and a practising E.N.T. 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 (J. N. Srivastava v. Ram Biharilal), 18 DLR (Chattand v. Bell) and 1954(2) A.E.R. 151 (Roe v. Ministry of Health), the job of the Doctors should be approached from the stand point 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 Constitution of India.
4. W.P. Nos. 3824 and 3825 of 1993 have been filed by one and the same Medical Practitioner (a) for the 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 clause 2(1)(o) of the Act will not include the services of medical practitioner, and as such petitioner is not amenable to the jurisdiction of the Consumer Protection Forum and clause (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 L 4 - L 5 and Foraminatomy L 4 - L 5 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 the plea raised by the petitioner in W.P. No. 5386 of 1992.
5. W.P. 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 E.N.T. 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 clause 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 Government Doctors by excluding them from the purview of the Act would be in violation of Article 14 resulting in invidious discrimination between 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 the Parliament has chosen to include housing construction while promulgating Ordinance 24/93, 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 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 short falls 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. W.P. No. 4209 of 1992 has been filed by a Medical Practitioner at Tirunelveli 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 compensation of Rs. 95,000/- for the alleged permanent disability of the left hand. 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 the respondents 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. W.P. No. 2526 of 1992 has been filed by a Doctor practising at Mannargudi for a writ of prohibition, prohibiting respondents 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. W.P. 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 alleged negligence in the treatment given to the third respondent herein. W.P. No. 14713 of 1991 has been filed by a Medical Practitioner at Chidambaram for the writ of certiorari to call for the records relating to the complaint in O.P. No. 25 of 1991 dated 29.7.1991 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. W.P. 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 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. W.P. 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. W.P. 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. W.P. 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. W.P. 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 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. W.P. 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 complainant is that against total immunity from pregnancy she got conceived again.
8. W.P. No. 20474 of 1993 has been filed by a Chief Cardio Vascular and Thoracic Surgeon at Madras and three other Medical Practitioners for a writ of declaration, declaring that clause 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 clause (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. 20,00,100/- for the death of his minor son due to the alleged negligence in the treatment and operation of his son. W.P. 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), 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 filing of O.P. No. 227 of 1993 by respondents 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. W.P. 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 do such things.
10. W.P. No. 283 of 1993 has been filed for a writ of declaration and W.P. No. 284 of 1993 has been filed for a writ of prohibition by one and the same Medical Practitioner at Madras and W.P. No. 285 and 286 of 1993 have been filed by another Medical Practitioner, Madras for the same reliefs in the teeth of claim made in O.P. No. 280 and 374 of 1992 respectively. The claim in O.P. No. 280 of 1992 has been filed against the petitioners in W.P. 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.P. No. 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. W.P. No. 3826 and 3827 of 1993 have been filed for a writ of declaration and for a writ of prohibition, prohibiting the State Consumer Forum from proceeding with O.P. No. 439 of 1992 filed by respondents 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 4 to 7 and the husband of respondent No. 3 resulting in the death of the patient. W.P. No. 5149 of 1993 has been filed by Kasthuribai Hospital, Gandhigram for a writ of certiorarified mandamus to call for and quash the order dated 26-12-1991 in O.P. No. 33 of 1991 and consequently forbear the District Forum at Sivaganga from proceeding with the O.P. 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 26-12-1991, the District Forum has overruled the preliminary objection raised rejecting the plea of lack of territorial jurisdiction.
12. W.P. No. 5171 of 1992 was filed by a body registered as a 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 26.2.1992 in C.D. 98/91 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 petitioner 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, the 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 an hospital are comprehended within the scope of the Act or that the Medical Practitioners 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 the learned Senior Counsel that a patient who undergoes treatment under a Medical Practitioner or in an 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 an 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; (b) 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 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 Article 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 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 the learned Senior Counsel that, at 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 the same vice and consequently the Forum 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 it 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. Smt. Nalini Chidambaram, learned Senior Counsel appearing for the petitioner in W.P. 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 the learned Counsel further that the constitution of the forums 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 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.P. 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 the learned Counsel further since the petitioners have rendered only free service, in furtherance of a contract of personal service and no charge or fee were 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 the learned Counsel that the Fundamental rights of 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 inroad into the fundamental rights of the petitioners to carry on his profession. The 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 uniform views 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 or 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 the learned Counsel uniformly espoused a grievance about the nature and extent of liability to which a Medical Practitioner can be subjected to 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 claimants, 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 Mr. S. Veeraraghavan, Additional Central Government Standing Counsel, contended that the decision of the National Forum reported in 1992(1) CPR 820 = (1993) 1 CTJ 170 (CP) (M/s. Cosmopolitan Hospital and Another v. Smt. Vasantha P. Nair and Others); the decisions in O.P. No. 10911 of 1991 dated 6.10.1993 (Dr. (Smt.) Omana Eapen and Others v. Consumer Disputes Redressal Commission for Kerala State and Others) of the Kerala High Court; (Tulasi Enterprises v. Andhra Pradesh State Consumer Commission, Hyderabad) and 1992(1) ALT 713 (Dr. A. S. Chandra and Others v. Union of India and Others) and the decision of a learned single Judge of this Court since reported in 1994(1) MLJ 24 (Dr. A. Indira Narayanan v. The Government of India) 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, the 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 petitioner, submitted that the enactment in question does not directly effect 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) has no merit. As for the grievance made about the constitution of the Forum, the learned Counsel submitted that the provision of two tiers of appeal sufficiently takes care of the position and serves as sufficient safeguard. It was also contended by the 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 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 the professionals have been hit hard or their position stood worsened. For all the reasons, the 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. Chandra, 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 power 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 not be taken to the various provisions in the Act which according to the 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, the 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 the learned Counsel on behalf of the petitioners. Apart from relying upon the inclusive nature of definition of service under the Act, the learned Counsel endeavoured to impress upon the need for 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 medical 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 satisfies the requirements of 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 expresses 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 the 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 paves 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 ensures fairness and that it is a matter of record that the Forums do not hustle matters to finalise the proceedings within 90 days. Argued the learned Counsel further that carelessness and sheer negligence is on the increase and therefore members of 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 under the Act deserves to be appreciated and approved. Finally, it was contended that 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 protest 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 procedure and Forums are the needs of the hour and that there is every justification to liberally construe the provisions of the Act so as to cover the Medical Practitioners and failing which the very object of the legislation would stand defeated.
25. The learned Counsel for the petitioners, in the course of their reply, contended that a welfare legislation must hold the scale 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 for 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 nature and categories of lapses or cases of negligence or deficiency in the performance of a Medical Practitioner which renders him liable for the 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 the learned Counsel appearing for the parties on either side, in vindicating their respective cause both for and against the need or desirability of subjecting the 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 into 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 disservice even to the community at large, and that the conditions in which hospitals and doctors have to the 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 the 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 surgeons 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 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 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 or 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 Hospital 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 matter or come to conclusions or diagnosis 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 functions of explaining the technical issues as fully as possible in a language comprehensible to laymen 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 or 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 or 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 court being a mixed question of fact and law. That is because, at times the treatment may involve also diagnosing of a relatively uncommon case of a patient or a disease and that no exception could be taken to the action of a Medical Practitioner, if the method of cure adopted is found acceptable to 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 future career would be under stake accompanied by his professional incompetency, allegations of negligence against a Medical Practitioner should be considered as a very serious one and the standard of proof of fault also should be of a high degree of probabilities.
29. The learned Counsel appearing on either side adverted to 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 reported in AIR 1969 S.C. 714 (Kiran Bedi and Jinder Singh 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 reported in AIR 1981 S.C. 746 (Francis Coralie v. Union Territory of Delhi) that it is for the Courts 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 (State of West Bengal v. Anwar Ali) 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 :-
"93. Tested in the light of these considerations, I am of 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 froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my 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."
Strong reliance was also made upon the decision (In re The Special Courts Bill, 1978). 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 or 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 :-
"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 such 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."
30. While adverting to the aspect of exclusion of the principles of natural justice, special emphasis has been made relying on the decisions (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 of the Court. In AIR 1987 S.C. 386 (S. P. Sampath Kumar v. Union of India), 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 or non-judicial members constituting such forum.
31. In the decisions (Collector of Customs v. Sampathu Chetty) as also (supra), 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 reported in A.I.R. 1956 Madras 1 (Sivagaminatha and Sons v. I.T. Officer) and (Jolly George Varghese and Another v. The Bank of Cochin), it was contended that the provisions of Section 27 of the Act has 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 (State of Madras v. B. 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 A.I.R. 1970 S.C. 1923 (Raipur Municipality v. State of M.P.), (Dadaji v. Sukhdeobabu), (South Gujarat Roofing Tiles v. Gujarat), (M/s. 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 (Messrs. Dwarka Prasad v. State of U.P.), (Air India v. Nargesh Meerza) and (Express Newspaper 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, and unreasonable and violative of Article 14 of the Constitution of India. The decisions reported in 1991(2) C.P.R. 53 (M/s. Diplomat Engineers v. Byford Leasing Ltd.) and 1991(1) CPR 52 (M/s. Special Machines v. Punjab National Bank and Others) 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 expressed their disinclination to decide such issues. The decision reported in 1991(2) CPR 537 (Subhashchandra N. Pandya v. Shailesh J. Shah and Others) and 1991 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.
32. The learned Counsel appearing for the respondents relied upon the decisions reported in 1992(1) CPR 820 = (1993) 1 CTJ 170 (CP) (M/s. Cosmopolitan Hospital and Another v. Smt. Vasantha P. Nair) and (Tulasi Enterprises v. A.P. State Consumer Commission, Hyderabad), 1992(1) Andhra Law Times 713 (Dr. A. S. Chandra and Others v. Union of India and Others) and W.P. No. 4950 of 1992 dated 28.7.1993, since reported in 1994-I-M.L.J. 24 (Dr. A. Indira Narayanan v. Government of India) 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 an Hospital undertaking treatment of a patient. Further reliance was placed on the decisions (State of Uttar Pradesh v. Chhotey Lal Pandey), 1979 Company Cases 419 (Mahindra & Mahindra Ltd. v. Union of India), (Regional Director, ESIC v. High Land Coffee Works of PFX Saldanha and Sons) and (N.T. Corporation Ltd. v. Sitaram Mills Ltd.) and (CP) (Lucknow Development Authority v. M. K. Gupta); to support the stand for a liberal interpretation being given to the inclusive definition contained in Section 2(1)(o) of the Act keeping in view the beneficial nature and the welfare object of the legislation.
33. 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 before these redressal forums against the medical practitioners and the Hospitals. Sections 10, 18 and 20 of the Act deal with the composition of the District Forum, State Commission and National Commission respectively. While a District Forum shall have a person who is or has been or is qualified to be 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 Judge of the Supreme Court as its President. The District Forum and 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 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.
34. 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 or 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 root 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-section (4) to (6) of Section 15 and the power to 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 same interest with the permission of the Forum on behalf of or for the benefit of all consumers so interested and the Central Government or the State Government.
35. 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 it 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 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 the correctness of the report as also the objection made and issue an order under Section 14 to the opposite party if the Forum is satisfied of the defects specified are proved, directing the opposite party to do one or more of the things specified therein.
36. Wherever the complaint received relates to goods in respect of which the procedure under sub-section (1) of Section 13 of the Act cannot be followed or if the complaint relates to any services, the Forum shall refer a copy of the complaint to the opposite party directing him to give his version of the case within 30 days or such extended period not exceeding 15 days and on receipt of the copy of the complaint, the opposite party denies or disputes the allegations in the complaint or omits or fails to take action to represent his case within the time given, the Forum shall proceed to settle the said dispute on the basis of evidence brought to its notice by the complainant and the opposite party. Sub-section (3) of Section 13 mandates that no proceedings complying with the procedure laid down in sub-section (1) and (2) shall be called in question in any court on the ground that the principles of natural justice have not been complied with. In substance, sub-section (3) of Section 13 purports to lay down that so much of compliance with as much of the procedure prescribed under sub-sections (1) and (2) would constitute sufficient compliance with the principles of natural justice. The District Forum was conferred with the same powers as are vested in the civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of some of the illustrated matters, namely, (i) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath; (ii) the discovery and production of any document or other material object producible as evidence; (iii) the reception of evidence on merits; (iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source; (v) issuing of any commission for the examination of any witness; and any other matter which may be prescribed. The proceedings before the District Forum were deemed to be judicial proceedings within the meaning of Sections 193 and 228 of Indian Penal Code and the District Forum was deemed to be a Civil Court for the purposes of Section 195 and chapter XXVI of the Code of Criminal Procedure, 1973. Wherever the complainants are more than one or numerous having the same interest the provisions of Order I Rule 8 of the Code of Civil Procedure was made applicable subject to every modification of references to the suit or decree as complaint or order of the District Forum.
37. Section 14 of the Act provides that if after the conduct of the proceedings under Section 13 of the Act, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following namely :- (a) to remove defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party; (e) to remove the defects or deficiencies in the services in question; (f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them; (g) not to offer the hazardous goods for sale; (h) to withdraw the hazardous goods from being offered for sale; (i) to provide for adequate costs to parties. The State Commission as also the National Commission were confirmed with such powers were made applicable to them respectively under Sections 18 and 22 of the Act. So far as the District Forum is concerned, the proceedings before it shall be conducted by the President of the District Forum and at least one member thereof sitting together and every order made by the District Forum shall be signed by its President and the member or members who conducted the proceeding. The decision of the majority was declared to be the order of the District Forum and in case where the President and one member conducted the proceedings, but differed the matter has to be referred to the third member and again the decision of the majority will be the order of the Forum. As already noticed, the State Commission and National Commission have been conferred with appellate powers against the orders of the Forum immediately below and the order of the National Commission was rendered, subject to an appeal to the Supreme Court. Every order of the District Forum, State Commission or National Commission was ordained to be final, if no appeal has been preferred against such order under the provisions of the Act. Section 26 has been introduced in the present form in 1993 enabling the District Forum, State Commission and the National Commission as the case may be, to dismiss a complaint instituted before them for reasons to be recorded in writing if it is found to be frivolous or vexatious and also make an order directing the complainant to pay costs to the opposite party not exceeding ten thousand rupees as may be specified in the order. The provisions of Section 27 provide where a trader or 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, such person shall be punishable with imprisonment of 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 two thousand rupees, but which may extend to ten thousand rupees, or with both. Power has also been given to these bodies to impose a lesser punishment than the minimum on being satisfied that the circumstances of the case so required.
38. The nature, character and extent of powers of the Disputes Redressal Forums constituted under the Act came in for consideration before the National Forum as also before some of the State Forums and it would be useful to refer to them before proceeding further in the matter. In the decision reported in 1991(1) CPR 52 (M/s. Special Machines v. Punjab National Bank and others), the National Forum was concerned with the question as to the procedure for disposal of complaint and as to when the Forums can decline to entertain the complaint and enter into an allegation of the disputes. The National Forum has observed thus in this regard :-
"The procedure for disposal of complaints under the Act has been laid down in Section 13 of the Act, the provisions of which are made applicable to proceedings before the National Commission by Rule 14(2) of the Consumer Protection Rules, 1987. Sub-section (2) and (3) of Section 13 of the Act show beyond doubt that the statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a detailed scrutiny and assessment of such evidence. It is no doubt true that the forums constituted under the Act are vested with the power to examine witnesses on oath and to order discovery and production of documents. But such power is to be exercised in cases where the issues involved are simple such as the defective quality of any goods purchased or any shortcoming or inadequacy in the quality, nature and manner of performance of the service which the respondent has contracted to perform for consideration. Even in such cases, if it appears to the concerned Forum under the Act that the issues raised cannot be determined without taking elaborate oral and documentary evidence it is open to it to decline to exercise jurisdiction and refer the party to his ordinary remedy by way of suit."
The said position came to be subsequently clarified by the National Commission in the decision reported in 1991 (2) C.P.J. 202 (Abdul Sukur v. State of Orissa), that the mere fact that a consumer's complaint required examination, cross-examination of witnesses cannot by itself be a valid ground for refusing the adjudication of the dispute under the Act and that the Forums are to decide cases filed before them after taking such oral and documentary evidence as the circumstances of any given case may require.
39. The various issues raised in these writ petitions have to be considered and decided in the back-drop of the nature of the claims, the rights of parties and the nature, character and extent of the jurisdiction or the authority conferred under the provisions of the Act upon the District Forum, State Commission and National Commission respectively as indicated supra. The substantial issue raised and the challenge to the jurisdiction of the Redressal Forums constituted under the Act in entertaining and settling the disputes raised in a complaint against a medical practitioner or an hospital for that matter, is based on the meaning of the word 'service' as defined in Section 2(1)(o) of the Act. The definition of the word 'service' is as hereunder :-
"(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
The construction to be placed on this would depend upon the definitions of the words "consumer" in Section 2(1)(o), "defect" in Section 2(1)(o) and "deficiency" in Section 2(1)(g) as also the words "restrictive trade practice" in Section 2(1)(nn) and the words "unfair trade practice" in Section 2(1)(r). The definition clauses relating to the words referred to above are as hereunder :-
"(d) "consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the service 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 :
Explanation. - For the purposes of sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;"
"(f) "defect" means any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods."
"(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
"(nn) "restrictive trade practice" means any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring or availing of other goods or services"
"(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely :-
(1) the practice of making any statement, whether orally or in writing or by visible representation which, -
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, re-novated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof; provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence.
(viii) makes to the public a representation in a form that purports to be -
(i) a warranty or guarantee of a product or of any goods or services; or
(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warrant or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purposes, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant markets unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
Explanation. - For the purpose of clause (1), a statement that is -
(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or
(b) expressed on anything attached to, inserted in, or accompanying an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or
(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public, shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;
(2) permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.
Explanation. - For the purposes of clause (2), "bargaining price" means -
(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or
(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;
(3) permits -
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;
(b) the conduct of any contest, lottery, game or chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;
(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;
(5) permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services."
The petitioners also contend that a patient who is treated by a Medical Practitioner or in an Hospital providing medical care cannot be considered to be a consumer for the reason that he cannot be considered to hire or avail of any services for a consideration paid or promised or partly paid and partly promised, or under any system of deferred payment. Great endeavour has been made by the learned Counsel appearing on either side to impress upon the manner of construction to be placed on the vital words referred to above. As against the plea on behalf of the petitioners that those words have to be construed in the context as well as the objects and reasons of the legislation as such, the learned Counsel for the respondents contended that being a social welfare legislation with an inclusive and wide language used, a liberal interpretation has to be made to all these words to really give effect to the object of the Act to provide a cheap and speedy remedy as against the time consuming and expensive process of civil litigation. Though as indicated earlier, voluminous are the case law on this aspect, it becomes wholly unnecessary for us to advert to all those decisions which are of general interest and relevance rendered in the context of different provisions and enactments in the teeth of a direct decision of the apex Court rendered in the context of the very Act with which we are concerned.
40. The Supreme Court in the decision (CP) (Lucknow Development Authority v. M. K. Gupta) was considering the issue as to whether housing construction work undertaken by the statutory authority like the appellant before the Supreme Court could be said to be rendering service and the allottee of a house constructed by the appellant could be said to be a consumer availing of the services made available by the appellant. The issue came to be considered in that decision in respect of a clause arising for the period prior to 1993 on the provisions of the Act as it stood unamended prior to the Consumer Protection (Amendment) Ordinance, 1993 replaced by the Central Act 50 of 1993. Before going into the question of jurisdiction of the District Forum or State or National Commission to entertain a complaint of the nature therein, the learned Judges thought fit to ascertain the purpose of the Act, the objective it seeks to achieve and the nature of social purpose it seeks to promote since it shall facilitate in comprehending the issue involved and assessed in construing various provisions of the Act effectively. In that context, the Court observed as hereunder :-
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, 'to provide for the protection of the interest of consumers'. Use of the word 'protection' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, 'a network of rackets' or a society in which, 'producers have secured power' to 'rob the rest' and the might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting against it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot. A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one, explanatory and the other expandatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep, then its ambit is widened to such things which otherwise would have been beyond its natural import. Manner of construing an inclusive clause and its widening effect has been explained in Dilworth v. Commissioner of Stamps (1899 AC 99) as under :
"'include' is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute, and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural, import, but also those things which the definition clause declares that they shall include."
It has been approved by this Court in Regional Director, Employees' State Insurance Corpn. v. High Land Coffee Works of P.F.X. Saldanha and Sons , C.I.T. v. Taj Mahal Hotel, Secunderabad and State of Bombay v. Hospital Mazdoor Sabha . The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation. The primary duty of the court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to the attempted objective of the enactment."
41. While proceeding further with the right of the complainant under the Act to approach the Commission or the Forum for unfair trade practice or defect in supply of goods or deficiency in service, the definition of the word 'consumer' was adverted to and considered to be of a comprehensive expression dealing with goods as well as with services. As for the aim of the Act was concerned, it was again reiterated as hereunder :-
"The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. The common, characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. But the defect in one and deficiency in other may have to be removed and compensated differently. The former is, normally, capable of being replaced and repaired whereas the other may be required to be compensated by award of the just equivalent of the value or damages for loss."
While repelling the plea that the applicability of the Act has been confined to movable goods only and holding that deficiency in service rendered was also comprehended Their Lordships proceeded to analyse the meaning to be ascribed to the word 'service' and opined as hereunder :-
"What is the meaning of the word 'service' ? Does it extend to deficiency in the building of a house or flat ? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property. The answer to all this shall depend on understanding of the word 'service'. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment. Clause (o) of the definition section defines it as under :
"'service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, 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;"
It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or some or all'. In Black's Law Dictionary it is explained thus, "word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject-matter of the statute". The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word 'potential' is again very wide. In Oxford Dictionary it is defined as 'capable of coming into being, possibility'. In Black's Law Dictionary it is defied as "existing in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalments or payments on a contract or engagement already made." In order words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users. But the legislature did not stop there. It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc. Each of these are wide-ranging activities in day to day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied there is no reason to hold that authorities created by the statute are beyond purview of the Act. When banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A State Bank or nationalised bank renders as much service as private bank. No distinction can be drawn in private and public transport or insurance companies. Even the supply of electricity or gas which throughout the country is being made, mainly, by statutory authorities is included in it. The legislative intention is thus clear - to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility."
42. The Supreme Court while deciding the Lucknow Development Authority's case (supra) was considering an appeal filed under Section 23 of the Act and was also not concerned with the numerous aspects posed before us for our consideration in exercise of the Powers of Judicial Review under the Constitution but were merely dealing with the appeal as an appellate authority under the very statute obliged to exercise powers subject to the enactment itself de hors constitutional challenges or any consideration with reference to the legality, propriety and constitutional validity of the provisions themselves. That was the position of the National Commission also when it decided the case reported in 1992(1) C.P.R. 820 knows as M/s. Cosmopolitan Hospital's case and the consideration in the said decision was confined with mere interpretation of a provision by a adjudicatory authority created under the very Act shorn of any cry of unconstitutionality or grievances of violation of the provisions of the Constitution of Indian or rights secured to a citizen in adopting or placing a particular construction on the statutory provisions contained in the Act. Unlike the exercise and efforts undertaken in those series of cases, this court is obliged to critically analyse and test the competing and conflicting claims made on the touchstone of the Constitution of Indian and safeguards enshrined and secured under this sacred document to a citizen. Even in the decision in the Lucknow Development Authority's case (supra) the learned Judges of the Supreme Court have emphasised the need to construe the general words in the context in which they have been used as also the subject and aim or object of the enactment itself. In highlighting the aims of the Act to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services care has been taken to point out also that the common characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. Even apart from the wide construction placed upon the word 'service'. Their Lordships had also undertaken a consideration of the further issue as to whether the housing construction or building activity carried on by the Private or Statutory Body was 'service' within the meaning of the Act.
43. The preamble makes it clear that the Act was to provide for the protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers disputes. Therefore, the extent and nature of protection schemed and devised under the Act would also become vitally relevant to assess width and range of services that could reasonably be held to be comprehended for protection under the provisions of the Act. The protection envisaged of the interests of consumers is by providing for the establishment of consumer councils and other authorities for settlement of consumers disputes. The Act postulates the establishment of Central Consumer Protection Council and State Consumer Protection Council and the objects of both these Councils are one and the same viz., the rights to be protected against marketing of goods and services which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods or services as the case may be so as to protect the consumer against unfair trade practices, the right to be assured wherever possible access to a variety of goods and services at competitive prices; the right to be heard and to be assured that consumers' interest will receive due consideration at appropriate forums; the right to seek redressal against unfair trade practices or restrictive trade practices or unscrupulous exploitation of consumers and the right to consumer education. The avowed objects of the constitution of such councils could, in our view, hardly be said to have any relevance or relation to the professional services of a medical practitioner or a Hospital undertaking medical care of a patient. Similarly, the summary nature of exercise of powers and jurisdiction of the District Forum, the State and National Commission and the type of orders and the nature of relief that could be ordered by the redressal forums under Section 14 of the Act do not in our view, support the plea to encompass the professional services of a medical practitioner or an Hospital undertaking medical care of a patient within the meaning of services, for the purposes and under the provisions of the Act. To reiterate once again, we are of the view that what is comprehended for protection under the Act is the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services, the common characteristics of both essentially being that they are supplied at a price to cover the costs and generate profit or income for the seller of the goods or provider of services, in order to curb restrictive and unfair trade practices.
44. Even that apart, we are of the view that the ordinary and general meaning of grammatical and etymological purport alone of the definition of "service" cannot be favoured in the context and set up of the words employed in the definition clause taken together with the avowed object of the legislation. The peculiar pattern of the definition of "service" in Section 2(1)(o) of the Act with an admixture of words general in import, followed by illustrative and exclusionary words should be so construed as to allow the general words used take colour from the conglomeration of other particular words used so as to confine them to the context and set up of the words taken together. Such reading and interpretation alone would ensure to the constitutional validity of the statutory provisions contained in the Act under consideration. The various kinds of services illustrated in the definition would also only lend support and credit to the construction that the concept of services comprehended under the Act have to be confined to services which are capable of yielding definite, positive and intended results unlike the professional services of a medical practitioner who has to operate in spheres where success or failure depends upon facts beyond the professional's control and even where the critical factors are within the professional's control still he cannot guarantee a definite result or success. As observed by Lord Denning L.J., in Roe v. Ministry of Health, [1954-2 AER 131], "Medical Science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take benefits without taking the risks. Every advance in technique is also attended by risks. Doctors like the rest of us have to learn by experience, and experience often teaches in a hard way ........ In all these case you will find that the three questions, duty, causation, and remoteness run continually into one another." As noticed earlier, the claim against a professional cannot be said to be one involving money only but it involves serious consequences adversely affecting his professional reputation and future career. It is in this context and background also that the question as to whether the legislature could have intended or could be reasonably attributed with the intention of comprehending a medical practitioner or an Hospital within the meaning of the 'service' under the Act so as to subject them to the disputes redressal of settlement jurisdiction of the District Forum, the State and National Commission with summary jurisdiction to dispose of the complaints and claims made before them by granting any one or more of the reliefs indicated in Section 14(1) of the Act. The only reasonable answer could be only in the negative.
45. We are also of the view that apart from the nature of the Disputes Redressal Forums constituted under the Act and the manner of settlement of disputes and the procedure laid down to be observed themselves being indicative of the construction to be placed upon the word 'service' and 'consumer' for the purposes of the Act, the anomalies inherent and involved in accepting the plea of the respondents to subject the claims against the petitioners to the jurisdiction of the Disputes Redressal Forums under the Act cannot be lost sight of. We would do well to refer to the views expressed by the National Commission itself in this respect though made in the context of considering a claim against doctors working in a Government Hospital and the Authorities of a Government Hospital in the decision reported in Consumer Unity and Trust Society, Jaipur v. State of Rajasthan and others, [(1991(1) C.P.R. 241)] which in our view are apposite and would apply to claims against all medical practitioners and Hospital authorities under the Act irrespective of the fact where they offer their professional services and who runs and administers the Hospitals concerned, with equal force. While quoting the observations and opinion of the National Commission, we are alive to the position that the said decision was rendered taking into account the definition of the word 'consumer' as it stood prior to its amendment in 1993. We quote here the observations of the National Commission in the case referred to supra :-
"There are, in most government hospitals, separate "paying wards" where affluent patients seek admission, as contrasted with the "general ward" where a poor patient is treated. Can we say that a patient in a "paying ward" in a Government hospital is a "consumer" within the meaning of the Act, but not an ordinary patient admitted to a general ward ? That would be patently iniquitous.
14. The above considerations are weighty, and need to be kept in mind while considering the scope of the terms "consumer" and "hiring for a consideration" in the Consumer Protection Act. And yet, we have to be cognizant of the implications and consequences of such a wide and flexible interpretation of the terms "consumer" and "hiring for a consideration". Our discussion started with the premise that in a welfare State, it is the responsibility of the Governments to provide adequate medical, health care and other facilities to all citizens. Such, indeed, has been the endeavour of all Governments, to provide adequate medical, health care and other facilities to all citizens. Such, indeed, has been the endeavour of all Governments, at the Centre and in the States, ever since the inception of a planned programme of development. It is possible, indeed it is likely, that by opening up the definition of the term "consumer" to all users of Government hospitals, we may invite a flood of irresponsible litigation, especially since the forum of the National Commission as well as the State Commission and the District Forum is available free of cost to all complainants. In attempting to be fair to a few, we may thereby create a situation of which the attention of the hospital authorities, of the concerned Government would be diverted by a spate of possibly spurious and avoidable litigation. In the result, while some deserving people may benefit through access to a cheap and quick redressal of their grievances, there could be unwelcome change in the approach of doctors and hospital authorities to the treatment of patients, and as a result there is likely to be a general deterioration of medical facilities and services in Government hospitals. It is an admitted fact that the resources available to the State are limited; and that within these resources, the State is endeavouring to do its best to provide reasonable services to the people. If there are occasional lacunae, the remedy is not in demoralizing those providing the requisite services not in diverting their attention from the provision of such services to a spate of irresponsible litigation - which could easily result from the wider and more flexible interpretation of the terms "consumer" and "hiring" for a consideration" in the Consumer Protection Act. This type of interpretation would, in the event, become counter productive and would defeat the very purpose of the legislation.
We are also mindful of the fact that in case of demonstrable "negligence", recourse is always possible to a civil suit in an ordinary court of law. It is not as if a patient would be totally deprived from seeking justice.
15. In considering any economic or social legislation, we need to attach primary importance not to the letter of the law but to the spirit behind it, to attempt to interpret the intention of the legislature. It is in this wider context that we are inclined to accept the stricter (and legal) definition of the terms "consumer" and "hiring for a consideration" in the Consumer Protection Act. We must endeavour to ensure the legislation does the greatest good to the greatest number, which we accept as the obvious intention of Parliament.
It is for this reason that we are unable to uphold the argument advanced by Shri Vaidyanathan that the expression "free of charge" occurring in Section 2(1)(o) which defines "service" should be understood to mean free of "obligation".
16. The short point remains : how do we treat the contributors to the CGHS and those who occupy beds in "paying wards" in Government hospitals. In our opinion, the contribution to the CGHS should be taken to be in lieu of free treatment in the diverse dispensaries, as well as the free provision of medicines from these dispensaries. Where cases are referred by the dispensaries to a Government hospital, the facilities are provided by a Welfare State free of charge, same as to 'outpatients' and others admitted to these hospitals. In regard to "paying wards", we feel that the payments are specifically related to special rooms/beds for which the separate charge is made; the medical facilities available in a Government hospital are common to all patients, inclusive of those in the pay wards, without discrimination.
In the light of what we have stated above, the conclusion is inevitable that persons who avail themselves of the facility of medical treatment in Government hospitals are not "consumers" and the said facility offered in Government hospitals cannot be regarded as service "hired" for "consideration". Hence, no complaint under the Act can be preferred either by any such person or by a consumer association on his behalf. The view taken by the State Commission, Rajasthan upholding the preliminary objection raised by the opposite party before it is, therefore, perfectly in accordance with law and it has only to be affirmed. We accordingly dismiss this appeal.
17. We would, at this juncture, like to emphasize two points. First, in the light of the two possible interpretations of the scope of the Act which we have indicated in the foregoing, we feel that while we continue to be governed by the interpretation we have accepted, this is a matter where the Parliament, if it so wishes, can review the matter and amend the Act suitably so that there is no ambiguity between the intent of the law and its interpretation. It is, therefore, open to the Government to enact any classificatory amendments to the extant legislation. In the absence of any such legislation, the only possible interpretation would be the one finally adopted by us, in the light of the varied considerations outlined earlier."
46. The weighty reasons and strong sentiments echoed by the eminent and erudite learned Judge (V. Balakrishna Eradi, J.) would, in our view, continue to apply with equal force even after the amendment introduced to the word 'consumer' in Section 2(1)(d) of the Act. The mere absence of the words 'avails of' in Section 2(1)(d) of the Act alone if is to be considered as an impediment for permitting a citizen from availing of the remedies under the Act against government hospitals and services rendered therein or by and large, generally no consideration is paid for the services rendered to a patient in such places, we fail to see what real or substantial change has been brought about by the mere addition of the words 'avails of' in Section 2(1)(d) of the Act when the definition of 'services' in Section 2(1)(o) remained unaltered and still continues to exclude the rendering of any service free of charge. If the avowed object is to provide cheap, speedy and efficacious remedies to a class of persons who also were victims or sufferers of any defect or deficiency in the medical services hired or availed of by such persons we fail to see any relevance or rational or justification in denying the same treatment or opportunity to those who had such treatment without paying or actually paying for it, either in an hospital maintained or administered by a Government or local Authority or a charitable organisation, brushing aside the so called Social Welfare character of the legislation. On principle and in the context of ordinary law, there could be no difference whatsoever in the matter of duties and responsibilities owed to a patient whose medical care or treatment has been undertaken, depending upon the fact that such services were for payment of consideration or gratuitous or by the Government Hospitals or doctors or private medical practitioners or Hospitals. If the position has to be otherwise, it would be vulnerable for the vice of hostile discrimination to exclude from the purview of the Act, de hors its avowed and proclaimed object, a category or class alone on the mere pretext of a patient being treated not for consideration paid by him but gratuitously, or in a government hospital whether for payment or otherwise as has been contended by some of the learned Counsel for the petitioners. Such consideration shall have no relevance or nexus to the so called proclaimed object of the legislation to provide cheap and speedy remedies.
47. The challenge to the constitution of the District Forum and State and National Commission as well as the procedure prescribed for the disposal of the complaints preferred before these Forums may now be taken up for consideration. The learned Counsel for the petitioners urged these aspect with two fold objective viz., that the constitution of these Forums as also the procedure to be followed by them is unconstitutional and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India and that at any rate the infirmities involved as also the summary nature of the disposal contemplated before these Forums would go to show that complicated and serious and substantial or intricate questions of law and facts involved in adjudicating the claims which may be made against medical practitioners and hospitals could not have been comprehended for inclusion in the definition of 'consumer' and 'service' in the Act with the object of curbing restrictive and unfair trade practices on the whole. Basically the claims which could form the subject matter of the complaint against the medical practitioners and Hospitals pertain to the field of law of Contracts or Torts and being claims of civil nature and invariably to be agitated before and adjudicated by the ordinary civil courts in the country under the substantive laws governing such rights as also the law of limitation and procedure laid down in the Code of Civil Procedure, 1908. Even after the coming into force of the Act, the jurisdiction, authority and competency of the ordinary Civil Courts to entertain such claims or cases are neither excluded nor ousted. Section 3 of the Act declares the position 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. In other words, the ordinary civil courts will continue to have the jurisdiction to decide such cases and the Forums under the Act are constituted only in addition thereto and not in lieu thereof. Disputes Redressal Forums under the Act are not Courts in the ordinary concept and meaning but merely Redressal Forums constituted to "settle" the disputes raised and pass orders of the kind specified in Section 14 of the Act. In substance, they are neither Courts nor Forums with any exclusive jurisdiction over such claims or disputes or any special class of disputes. Though in the hierarchy of their creation themselves provisions for appeals have been provided with a further right of appeal from the National Commission only to the Supreme Court of India and Administrative control vested in like manner among the three Disputes Redressal Forums, they cannot claim to be law unto themselves but are subject to the jurisdiction of the High Courts under Articles 226 and 227 of the Constitution of India. The law which constituted them does not have the effect of taking them outside the purview of those provisions of the Constitution of India, leave alone the question of legality, propriety and constitutional validity of such a provision, if so made. The choice between Forums under the Act or the ordinary civil court is thus made the exclusive privilege or right only of the complainant who alone initiates the proceedings and the rights of the opposite party to have himself defended under the protective or regular and ordinary civil procedure enshrined in the Code of Civil Procedure, 1908 or in the alternative only the summary procedure envisaged under the Act for disposal of claims depends at the sweet will and pleasure of the complainant who chooses the Forum without any norms or guidelines or criteria therefor to institute his claim and the opposite party left with no hand or say in the matter. Even if there be any serious or complicated issues of fact or substantial or important or intricate or novel or vital questions of law are involved for determination, the opposite party is helpless unless the Disputes Redressal Forums themselves consider it appropriate or necessary in their view to direct the claimant to have recourse to the ordinary civil courts. The Act, as such, does not cast any obligation on these Disputes Redressal Forums to act in such a manner or lay down any guidelines or norms as to when they should necessarily direct or refer a particular claim to the ordinary civil courts. No other Authority or the ordinary civil courts have also been specifically conferred with any such powers to intervene in the matter at the instance of the opposite party unless there is any scope for interference on such grounds or at that initial stage of the proceedings itself by the High Court in exercise of its powers under Articles 226 and 227 of the Constitution of India and the possibility may be next to nothing in this regard except where the constitutional validity of any provisions of the Act or Rules or any patent procedural infirmity or perversity of approach is demonstrated.
48. There can be no serious controversy or dispute over the fact that the procedure laid down under the Code of Civil Procedure, 1908 for the disposal of the same claim when moved before the ordinary civil courts substantially and drastically differ from the summary nature of the jurisdiction or the procedure conferred and stipulated under the Act when moved for the very claim before the Disputes Redressal Forums. The existence of substantial difference in the procedure cannot be easily overlooked or brushed aside. It is by now well settled that a rule of procedure laid down by law comes as much within the purview of Articles 14 and 21 as any rule of substantive law and that 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. That apart, the procedure prescribed in any case shall also be just and fair and neither arbitrary nor oppressive. Though it is open to the legislature to classify persons or things for differential treatment, the classification must not be arbitrary but must be rational and reasonable and founded on intelligible differentia and that differentia must have a rational relation to the object sought to be achieved by the Act. Likewise, while the law can make and set apart the classes according to the needs and exigencies of the society the object of a speedy trial cannot by itself be the basis of a classification though the same be the ultimate aim and mere bonafides of the object is no effective answer to the plea of discrimination or arbitrariness. So far as the cases before us are concerned, though consumer complaints are created as a class to be dealt with under the Act, they in no way differ from ordinary claims for similar relief and there is no well defined classification as such for exclusive consideration so as to justify a claim for differential treatment. The provisions of Section 3 make the regular procedure exist side by side in force leaving indiscriminately to the choice of the complainant alone the Forum and the attendant procedure completely ignoring from consideration the opposite party to the complaint and his legitimate rights of defence or grievances otherwise available before the ordinary Courts. Administration of justice has a social dimension and one side of the cause alone or one party to a claim alone cannot be chosen for favoured treatment. The law enacted in the form of the Consumer Protection Act, 1986 by itself does not ensure uniform or universal application to all the class or category of consumer redressal grievances or complaints, invariably. The grievance of infringement of Articles 14 and 21 of the Constitution of India cannot be either underestimated or brushed aside, particularly in the context of the seriousness of the claims and the far reaching consequences the adjudications may ultimately have on the reputation as also the future professional career of the medical practitioner or Hospital is concerned.
49. The need for speedy and cheap remedy alone, in our view, cannot be a valid basis, per se, for differential treatment involving serious consequences. Administration of Justice ought not to be allowed to be debased by sacrificing quality to informality and rapidity and economy and mere generosity of such intentions alone cannot be a consolation for the deteriorating quality and standard of the legal services. Cheapness and informality carried to extreme lengths, as in the present, would end in negative and counter productive results and therefore the fundamentals of justice are indispensable. Quack dispensation of justice ought not to be allowed to hold sway in the name of quick justice. The constitution of the Tribunal as also the expression of their decisions in the manner envisaged under the Act justify the criticism levelled on behalf of the petitioners and the apprehensions about the possible unrealistic functioning and ultimately leading to the futility of purpose of these institutions. Even a cursory analysis of the provisions relating to the composition of the Redressal Forums, ignoring the particular or actual composition in an individual case which may vary from time to time, except the President who is a legally trained person being an existing or past Judge or Judicial Officer, the others could be any one which in the opinion of the Government concerned, possess 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 and not necessarily obtained any degree or diploma in such fields or attained such academic achievements as qualifications or any training for a particular period. They are too general and nebulous prescriptions which could not effectively ensure the appointment of really qualified persons. The disposal of redressal complaints raising disputes pertaining to sale of goods or hiring or availing of services of a commercial nature or trade oriented aspects by a consumer for consideration may be possible with the mode and manner of procedure laid down under Sections 12 and 13 of the Act to settle disputes and pass orders of the kind visualised under Section 14. Though power to judge is not now confined to ordinary courts and the modern concept of quasi-judicial bodies and Administrative Tribunals or Special Courts have come to occupy the field and stay, that does not prevent an examination of their competency to deal with all or any of the matters entrusted to them or the arbitrariness or reasonableness or fairness of the procedure to be observed before them. If they are found to be substantively and qualitatively different from the ordinary civil courts but yet entrusted with the determination of the same or similar complicated claims involving drastic or far reaching consequences, this Court exercising powers under Article 226 of the Constitution of India can always strike down such entrustment of power or so read down the provisions as to exclude such power from those Special Forums so as to ensure the Administration of justice a reality and not merely a myth. The defects or deficiencies in the goods sold or services rendered of commercial trade oriented nature can be easily found out with reference to their standard, quality or grade, if necessary, after sending the goods for the analysis and report of the laboratory, if any, even by the category of persons who may be appointed as members with the qualification envisaged under the provisions of the Act. But intricate, subtle, substantial questions of law on the peculiar facts and circumstances of an alleged negligence or defect or deficiency of service rendered by a Medical Practitioner or an Hospital, with serious and far reaching consequences on the reputation and future career of the professionals cannot in our view be effectively dealt with by the Disputes Redressal Forums constituted under the Act. The Act declares that the opinion of the majority shall be the order of these Forums and there is every likelihood of the President having no decisive voice if the other members join together and the decision by those other members could hardly be said to be that of a body with an independent or judicial bent of mind and judicious approach. Legally trained mind or judicial approach and the required expertise and knowledge would be totally lacking in a consideration made and adjudication rendered under such a situation. It is one thing to have such persons as counsellors to assist these Forums or associate them with the decision making process if need be but totally different to allow them to decide on their own such complicated and intricate questions of vital facts or questions of law of great importance and serious repurcussions and consequences upon individual rights monetary as well as non-monetary ones. The appointment of retired Judges was itself at times considered to be not conducive to the maintenance of the independence of the institutions and to give a free hand to non-judicial members the right to adjudicate issues according to their whim and fancy would in our view constitute serious inroad into the Administration of justice. The plea on behalf of the petitioners that the absence of a special provision for a member of the medical profession in the adjudicatory mechanism visualised under the Act is also sufficiently indicative of the intention of the Parliament that the Medical professionals have not been comprehended for inclusion under the Act cannot be also lightly brushed aside.
50. That apart, the preamble to the Act, which proclaims the object and aim of the law the statement of objects and reasons as also the debates in both the Houses of Parliament, during consideration of the provisions of the Act, when it was at the anvil, would give a positive impression in most unmistakable terms leading to an inevitable and inescapable conclusion that the medical profession or the Hospitals were never in the contemplation of the framers of the Act as being comprehended within the scope of the Act. As noticed earlier, context of the legislative provisions is a vital key to an appropriate interpretation of the words in a statute. The Apex Court observed in this regard in the decision (Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and Others) as hereunder :
"Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the court construed the expression 'Prize Chit' in Srinivasa and we find no reason to depart from the court's construction."
51. There can be no two views on the necessity for the accountability of even professionals for their acts of commission and omission when it damnifies some one who utilised or availed of his services. A duty to their patients to exercise reasonable care inheres even in undertaking to carry out their properly skilled or diagnosis, advice and treatment and in addition to the contractual or tortious liability, for failure to exercise reasonable care. All Medical Practitioners are also subject to duty of confidence themselves by equity. From ancient times, the medical practitioner has been held accountable for failure to exercise reasonable care in treating his patient de hors any contractual relationship with the patient and the fact that such a professional undertakes the task of providing advice, diagnosis or treatment per se gave rise to a duty to exercise proper care and skill and the fact as to who called the Doctor to the patient or who pays him and whether he is paid for his services or not has no vital role in respect of the accountability of the patient. But the question that looms large and surfaces for our consideration in these batch of cases is really as to where it should be rendered accountable : Is it before the ordinary Courts of law or the Disputes Redressal Forums constituted under the Act in question ? That issue, in our view, has to be analysed and considered not merely on any populist ideas carried away by mere sympathies, obsessed by the only fact that some disaster has befallen on a person who had to suffer some terrible consequences. Protection from the point of view of the administration of justice should be of both parties and public interest also ought not to be allowed to become a casuality by undertaking a partisan attitude or leaning towards one party to a cause merely on sympathies. Bestowing our serious thought to the complexities of the problem we are constrained to think that exposing the medical practitioners to the Disputes Redressal Forums constituted under the Act and render them answerable to claims by complainants in a summary procedure of trial of such claims would have counter productive results on the very quality and standard of service by such professionals. Medical Practitioners who are constrained to think more of their own safety will have their initiative stifled and confidence undermined in undertaking and often may not prefer to undertake even elementary risks involved in handling variety of cases which come before them. Even de hors defensive methods of treatment, there will be very little possibility for innovations and application of advance technique which, in our view, would be more disastrous than the wail of sorrow and difficulties pleaded as standing in the way of one approaching ordinary civil courts for redressal.
52. Thus viewed, pragmatics apart, the entire gamut of controversies in these cases with particular reference to the practicalities of the situation, we have no hesitation to hold that the word 'services' have to be construed in the context of the definition of the words 'consumers', 'restrictive trade practices' and 'unfair trade practices' as also the nature of constitution, the powers and the summary adjudicatory procedure prescribed under the Act and the need to read the provisions in such a way which would promote its constitutionality than expose the provisions to be susceptible to the attack of unconstitutionality. It is by now a well settled rule of construction that if a statutory provision is susceptible of or admits of even two reasonably possible views then the one which would promote its constitutionality should be preferred on the ground that the legislature is presumed not to have intended an excess of its own jurisdiction. By adopting such course, as also undertaking a prima facie consideration of the challenge made to some of the provisions to indicate the need for a reading down of certain provisions, we should not, however, be considered to have pronounced our views on the constitutionality of the Statute or some of the provisions of the Act in question. Consequently on an over all consideration of the matter, we are of the view that the words "consumer" and "service" defined under Section 2(1)(d) and (o) respectively should be construed to comprehend consumer of services of commercial and trade oriented nature only in the context of an unfair trade or restrictive trade practices and not otherwise. With respect, we are unable to subscribe to the view taken to the contrary by some of the other decisions of Court as also the Authorities exercising jurisdiction under the Act, including the one reported in 1994(1) MLJ 24 (supra) by a learned single Judge of this Court. In substance, we are of the view that the services rendered to a patient by a Medical Practitioner or an hospital by way of diagnosis and treatment, both medicinal and surgical would not come within the definition of Section 2(1)(o) and a patient or his representatives in interest will not fall within the definition of consumer in Section 2(1)(d) and consequently, they cannot be subjected to claims, in respect of such services relating to diagnosis and treatment, both medicinal and surgical before the District Forum or State and National Commissions constituted under the Act. We also make it clear that Medical Practitioners or Hospitals undertaking exclusively or in addition to services of diagnosis and treatment-medicinal and surgical, para-medical services of all kinds and categories cannot claim similar immunity to the extent of such para-medical services undertaken to be rendered. We are of the view that rendering of para-medical services, though may also involve to certain extent professional skill and talent would fall within the definition of 'service' and those who avail of such services would answer the definition of 'consumers' under the provisions of the Act. Even assuming for purposes of consideration, that a patient undergoing treatment or availing the services of a medical practitioner or Hospital, in respect of diagnosis and treatment, both medicinal and surgical would answer the description of 'consumer' and services rendered to him 'service' for the purposes of the Act. The next submission that may also require for consideration by us is as to whether the services rendered by a Medical Practitioner or Hospital would fall within the exclusionary clause "under a contract of personal service", of Section 2(1)(o) of the Act. It is the contention of the learned Counsel for the petitioners that the services rendered by a Medical Practitioner or an Hospital in taking care of a patient and treating him would constitute 'personal service'. Whenever a medical practitioner is engaged he owes a duty to treat the patient personally and faith and reputation is the basis of selection or option of a particular patient of an Hospital or Medical Practitioner of his choice. Personal confidence and personal qualification are the hall-mark of availing of the services of a Medical Practitioner or Hospital. Not only personal attention is required of the patient but the kind of treatment would also be personal to the patient and his disease concerned. Whether the relationship between them owes its origin to either a special contract or not is not really material but there is always an implied term to act at all times in the best interests of the patient, in accordance with the professed skill of the professional as such and normally not deligable. Even ordinarily a personal contract is one which depends upon the existence of the personal qualities, skill, or service of the parties. At times, it may also refer to ones person, body or figure. The performance of such a contract also depends upon the peculiar talent or skill of intellectual, ability and judgment and there cannot be any forced enforcement of such a contract, since it would depend very much upon volition of parties too. The differences underlying the concepts of "contract of service" and "contract for services" were considered to be very thin and fine they being mixed questions of fact and law and that it is always for the Court or Forum concerned to decide about the true relation between parties. Even in the area of Industrial Law and Law of Master and Servants it was often considered to be impossible to lay down any rule of law of universal application for distinguishing the one from the other and always to be left to be decided by all the circumstances of a case. So far as the scheme and the object underlying the Act and phraseology adopted for defining the word 'service' in Section 2(1)(o) is concerned, even such niceties of the controversies on the differences arising out of the language viz., contract of personal services and contract for personal services, may not be really relevant and for the purposes of the present Act, it should be construed with reference to the nature and quality of service only and not in the context of finding out the existence of otherwise of the employer and employee relationship. Thus viewed, it would be obvious that the services rendered by a Medical Practitioner or an Hospital by way of diagnosis and treatment - medicinal and surgical - other than paramedical services, would fall within the exclusionary clause "contract of personal services" and, therefore, would be outside the purview of the Act.
53. Having regard to the above conclusions of ours, it has become unnecessary to pronounce upon the constitutionality of some of the provisions challenged by the petitioners. Though the object of providing a cheap and speedy remedy may have lofty and laudable motives that by itself cannot justify a construction of the provisions of the Act in a manner to subject medical practitioners and also the hospitals providing and undertaking treatment of a patient to the type and character of Forums created under the Act with summary jurisdiction. A concession in the Court-Fee payable or stipulation of a reasonable period for the conclusion of the proceedings may be a desirable need, but the remedy thought of cannot be more dangerous and disastrous than the disease itself. Before parting with these cases, we may state that it is high time for the legislature to clarify the position specifically without leaving room for any doubts in such a vital and important area of enforcement of the provisions of the Act, with not only far reaching importance but drastic and serious consequences.
54. To summarise, the following are our conclusions :-
(i) The services rendered to a patient by a medical practitioner or an hospital by way of diagnosis and treatment both medicinal and surgical would not come within the meaning of 'service' as defined in Section 2(1)(o) of the Consumer Protection Act, 1986.
(ii) A patient who undergoes treatment under a medical practitioner or an hospital by way of diagnosis and treatment both medicinal and surgical cannot be considered to be a 'consumer' within the meaning of Section 2(1)(d) of the Act.
(iii) The medical practitioners or hospitals undertaking and providing paramedical services of any categories or kind cannot claim similar immunity from the provisions of the Act and they would fall, to the extent of such services rendered by them within the definition of 'service' and a person availing of such service would be a 'consumer' within the meaning of the Act.
(iv) Consequently, it has become unnecessary for this Court to finally adjudicate and pronounce upon the constitutional validity of some of the provisions of the Act challenged in these writ petitions.
55. These writ petitions shall stand ordered in the above terms. No costs.