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1992 Supreme(Del) 238
High Court Of Delhi
COSMOPOLITAN HOSPITALS - Appellant
Versus
VASANTHA P.NAIR - Respondent
First Appeal 48 of 1991
Decided On : 04/21/1992
C.S.Balagangadharan, K.R.NAMBIAR
The activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression "service" as defined in Section 2 (1) (o) of the Consumer Protection Act, 1986 and the legal representatives of deceased consumers are "consumers" under the Act so as to be competent to maintain the complaint petitions before the Consumer Redressal Forum.
Headnote:
CONSUMER PROTECTION ACT - SERVICE - HIRING OF SERVICE - LEGAL REPRESENTATIVES - JURISDICTION - MEDICAL NEGLIGENCE - DEFICIENCY IN SERVICE - INTERPRETATION OF STATUTES - CONSUMER DISPUTE REDRESSAL FORUM - MEDICAL COUNCIL ACT, 1956 - INDIAN MEDICAL ASSOCIATION - QUALIFIED PRIVATE MEDICAL PRACTITIONERS ASSOCIATION, KERALA - Locus standi of legal representatives of deceased consumers - Whether the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression "service" as defined in Section 2 (1) (o) of the Act - Whether the legal representatives of deceased consumers are "consumers" under the Act so as to be competent to maintain the complaints.
Fact of the Case:
The appellants, a hospital and a doctor, challenged the State Commission's decision that the complainants, the widow and children of a deceased patient, were "consumers" entitled to invoke the redressal machinery provided under the Consumer Protection Act, 1986 (the Act) and that the activity carried on by the appellant hospital of rendering medical treatment for consideration is a "service" as defined in the Act. The Indian Medical Association and the Qualified Private Medical Practioners Association, Kerala intervened in the case, supporting the appellants' contentions.
Finding of the Court:
The court held that the complainants were "consumers" entitled to invoke the jurisdiction of the Redressal Forum under the Act and that the activity carried on by the opposite parties constituted "service" as defined in the Act and did not fall within the exempted category of service rendered under a "contract of personal service". The court also held that the legal representatives of deceased consumers are "consumers" under the Act so as to be competent to maintain the complaint petitions before the Consumer Redressal Forum.
Issues: 1. Whether the complainants are "consumers" entitled to invoke the jurisdiction of the Redressal Forum under the Act? 2. Whether the activity carried on by the opposite parties constitutes "service" as defined in the Act? 3. Whether the legal representatives of deceased consumers are "consumers" under the Act so as to be competent to maintain the complaint petitions before the Consumer Redressal Forum?
Ratio Decidendi: 1. The court held that the expression "service" in Section 2 (1) (o) of the Act has been defined in broad language giving it the widest amplitude, and there is no warrant for cutting down and restricting the scope of the definition to only service relating to "commercial transactions". 2. The court held that the service rendered to patients by hospitals and doctors fall within the scope of the definition of "service" as defined in Section 2 (1) (o) of the Act and that in the event of any deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction. 3. The court held that the legal representatives of deceased consumers are "consumers" under the Act so as to be competent to maintain the complaint petitions before the Consumer Redressal Forum, as they stand in the shoes of the deceased as his representative to enforce the cause of action which the deceased had and in respect of which the right to seek legal remedies has survived and become part of his estate.
Final Decision: The court dismissed the appeals and confirmed the orders passed by the State Commission on the preliminary issues raised in both cases.
( 1 ) THIS appeal has been preferred by M/s Cosmopolitan Hospitals (P) Ltd. , Thiruvananthapuram as appellant No. 1 and one Dr. K. Venugopalan Nair, Senior Consultant in Orthopaedics in the said hospital as appellant No. 2 who are figuring as opposite parties in a complaint petition-Complaint No. 123 of 1990 pending on the file of the Kerala State Consumer Disputes Redressal Commission. The said complaint has been preferred against the appellants by the respondent herein, who is the widow of one G. P. Nair, who was a Company Executive in M/s Aluminium Industries Ltd. , Thiruvananthapuram. Mr. G. P. Nair was admitted in the appellant hospital on September 7, 1989 with persistent back pain. It is not in dispute that for the admission and treatment of patients in the appellant hospital, charges are collected by the hospital. The ailment of Mr. G. P. Nair was initially diagnosed in the hospital as tuberculosis and treatment was started on that basis. It is alleged that in the course of said treatment, the patient exhibited other symptoms on the basis of which it was later diagnosed to be a case of jaundice and in view thereof he was treated in the hospital for that condition by one Dr. P. P. Joseph from September 15, 1989. It would appeal that the condition of the patient progressively grew worse and hence on September 17,1989 he was referred to the Gastro Enterology Department of the Medical College Hospital, Thiruvanathapuram where better facilities could be had for diagnosis and treatment. The patient was shifted to the Medical College Hospital only on September 18,1989 and while undergoing treatment there, he expired on September 28, 1989. The complaint petition was thereafter filed by the respondent herein-widow of the deceased seeking to recover a compensation of Rs. 5,67,776/ - from the opposite parties on the plea that they were criminally negligent in their diagnosis and treatment of late Mr. G. P. Nair while he was under their care and treatment in the first appellant hospital and had they been careful, his valuable life could have been saved.
( 2 ) THE opposite parties filed a joint version before the State Commission wherein they categorically repudiated the charge of negligence and also contended that the complainant had no cause of action against them and is not entitled to initiate proceedings under the Consumer Protection Act, 1986 (hereinafter called the act ) since he is not a "consumer" and the treatment rendered in the hospital does not constitute service as defined in the Act. On the above basis it was contended that the State Commission had no jurisdiction to entertain and adjudicate upon the complaint.
( 3 ) THE State Commission took up for consideration the questions of locus standi and jurisdiction as preliminary issues and after a detailed discussion of all the relevant aspects, it has recorded the finding that the complainant who is the widow of the deceased patient is a "consumer" entitled to invoke the redressal machinery provided under the Act and that the activity carried on by the appellant hospital of rendering medical treatment for consideration is a service as defined in the Act and hence it is within the jurisdiction of the Redressal Forums constituted under the Act to entertain and adjudicate upon a complaint relating to alleged deficiency in such service. This appeal has been preferred by the appellants against the said decision rendered by the State Commission on the preliminary issue.
( 4 ) THE Indian Medical Association, New Delhi through its honorary Secretary filed Miscellaneous Petition Nos. 66 and 67 of 1991 in the appeal praying that the Association should be permitted to intervene in the case and support the contentions of the appellants since the questions involved in the appeal are of grave importance and concern to the members of the Association belonging to the medical profession. FIRST APPEAL NO. 94 OF 1991
( 5 ) THIS appeal also arises out of a similar
