A. S. Chandra vs Union of India - 1992 Supreme(AP) 254

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(AP) 254

Andhra Pradesh High Court
Judges : M.N.RAO, V.NEELADRI RAO
A.S.Chandra - Appellant
Versus
Union of India - Respondent
WANo.1402/91 etc.
Decided On : 04-17-92
Advocates Appeared :
M/s. S. Suryaprakash Rao, C.V. Mohan Reddy, C.V. Rajeev Reddy, Mohd. Imitiaz, M. Chandrasekhara. Rao, K. Vinayakumar, C. Poornaiah, V. Pattabhi, C.B. Ramamohan Reddy, D. Ramalingaswami,C. Kodanda Ram,Mr. B. Narayana Reddy,Mr. K.G. Kannabhiran

Headnote:Consumer Protection Act, 1986, Secs.2(1) (d), 2(1)(o), 3 and 14 (1) (d) and Constitution of India, Arts.14 and 19(1)(g) Private Medical Institutions and Private doctors and amenable to the jurisdiction under the Act for proved medical negligence and for awarding damages to victims.
       Held: The complainants before the Consumer Redressal Agencies are consumers within the meaning of Sec.2(1)(d) and the services rendered by private medical practitioners and private medical institutions for consideration fall within the ambit of service under Sec.2(1)(o) of the Act. "Service" under Sec.2(o) of the act excludes "contract of personal service". The phrase implies agreement by which a person offers III render service personally, it predicates relationship of master and servant or employer and employee. "Contract for personal service" implies obligation to render specified service by the persons offering the service. This is not excludes from the definition of service. The service rendered for consideration by private medical practitioners, private hospitals and nursing homes must be construed as "service" within the ambit of Sec.2(1)(o) of the Act.
       The entire gamut of law relating to medical negligence comes into· play irrespective of the fact whether the seisin of the matter is by the Civil Court or one of the redressal agencies under the Act. The basic law applicable for adjudicating complaints against members of the medical profession must be the law on orts; the creation of special forums in the form of redressal agencies under the Act makes little difference in this regard. Section 3 of the act makes it explicit that the provisions of the Act shall be in addition to but not in derogation of any other law for the time being in force. The creation of additional forums under the Act was conceived in the interest of general public for expeditious and effective adjudication of complaints instead of living the affected parties to the time consuming process of civil actions in regular civil court. An additional forum is not a parallel forum and the claimant must choose are of the two forums and not both.
       Creation of additional forum for expeditious and-effective disposal of complaints amanating from consumers does not amount to invasion of any fundamental right of the members of any profession. In the impugned Act there is neither arbitrariness nor discrimination against the medical profession nor does it in any manner adversely affect the right of the medical doctors to practice their profession.
       The term compensation occuring in Sec.14(1)(d) of the Act comprehends damages also.
       W.A. 1402/91 etc., dismissed.
       W.A.No.5224/90. Allowed.
       W.P.15086/90 Partly Allowed.

M. N. RAO, J.

( 1 ) IN this batch of cases common questions arise for consideration and so we are inclined to deal with them by this common judgment. Writ Appeal no. 1402 of 91 is from the order of our learned brother Sivaraman Nair, J. , in w. P. No. 15595 of 91 dismissing the writ petition filed by Dr. A. S. Chandra, a private medical practitioner running Sarada Nursing Home in Chirala, prakasam district. The wife of the fourth respondent received treatment as an out patient between 15-7-91 and 26-7-91 at Sarada Nursing Home for epigastrium and Chest pain and Nausea. After routine tests were conducted she was admitted as an inpatient on 26-7-91 and operated for Cystectomy, hystrectomy and Appendectomy. When Laparotomy test was conducted upon her on 15-8-91 it was found that she developed Peritonitis. The nursing home collected Rs. 500/- towards medical fee and Rs. 200/- each for the anaesthetist and two surgeons, Rs. 1,100/- in all. The patient had to be removed to the Government Hospital, Guntur for further treatment; she was admitted in the Guntur Hospital on 25-8-91 and after an operation was performed she died in the Hospital. The fourth respondent filed consumer dispute No. 750/91 in the District Forum, Prakasam district alleging that the death of his wife was due to the negligence of the appellant Dr. A. R. Chandra.

( 2 ) THE District Forum issued notice in C. D. C. No. 750/91 calling upon the appellant to appear before the Forum on 13-12-91. Challenging the jurisdiction of the District Forum W. P. No. 15595/91 was filed by the appellant contending that enquiries relating to professional services rendered by medical practitioners do not fall within the purview of "complaint" under Sec. 2 (b) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act ). The expression "service" as defined by Sec. 2 (o) of the Act excludes professional services rendered by members of the medical profession. If the services rendered by a doctor for consideration are to be brought within the purview of Sec. 2 (o) of the Act, it was contended that the same would be unconstitutional being violative of Art 14 of the Constitution. It was also pleaded that the consumer forum is not the proper forum to decide the question since the allegations levelled by the fourth respondent constitute a tortious act, the adjudication of which requires receiving of elaborate evidence and consideration of complicated medical norms. Hauling up of doctors before consumer protection forums in respect of the professional services rendered by them for consideration would be violative of Art. l9 (1) (g) of the constitution. The learned judge negatived all the pleas and dismissed the writ petition holding that the bodies entrusted with the administration of the act consist of and presided over by persons with matured judicial training. The choice of the personnel itself indicates that there are inbuilt safeguards. Except where services were rendered free of charge or under a contract of personal service, all the other services are comprehended, according to the learned judge by Sec. 2 (o) of the Act. Merely because the provisions of the indian Medical Council Act provide for disciplinary action against an erring medical practitioner there is nothing to hold that the jurisdiction of the District forum is ousted under the provisions of the Act. While dismissing the writ petition the learned judge directed the appellant to raise all the contentions including the point of jurisdiction before the District Forum. Aggrieved by that writ appeal No. 1402 of 91 was preferred by the nursing home. In three other writ petitions also the learned judge has taken the same view. Against those writ petitions the aggrieved persons preferred W. A. Nos. 997/91, 344/ 91 and 1075/91.

( 3 ) WRIT Petition 7341/91 was filed by the Indian Medical Association, andhra Pradesh, A. P. State Branch seeking a writ of prohibition directing all the District Forums in the State not to proc

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