MADRAS HIGH COURT
Hon’ble Mr. Justice Raju & Mr. Justice AR. Lakshmanan
DR. C.S. SUBRAMANIAN—Petitioner
versus
KUMARASAMY & ANR.—Respondents
Writ Petition Nos. 14713 od 1991 with 1953, 2526, 4209, 4432, 5149, 5171, 5275, 5386, 5624, 13, 366, 14, 673, 16, 823, 17, 284, 19, 498 of 1992; 283, 284, 285, 286, 2521, 3824, 3825, 3826, 3827, 7038, 15, 337, 15, 338, 20, 474 and 21, 494 of 1993—Decided on 17.2.1994

Headnote:(i) Consumer Protection Act, 1986 - Sections 2(1)(o) and 2(1)(d) - Words service and consumer - Applicability of provisions of 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.

       Held: 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 provision of the act. The protection envisaged of the interest 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 it 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 a hospital undertaking medical care of a patient within the 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 purchase 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 general profit or income for the seller of the goods or provider of services, in order to curb restrictive and unfair trade practices. (para 39)

       Further held, that the ordinary and general meaning of grammatical and etymological purport alone of the definition of "service" cannot be favored 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 factors beyond the professionals control and even where the critical factors are within the professionals control still he cannot guarantee a definite result or success.

       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 a hospital within the meaning of the service under the Act so as to subject them to the Disputes Redressal or 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 anyone or more of the reliefs indicated in Section 14(1) of the Act. The only reasonable answer could be only in the negative.

       (para 40)

       (ii) Consumer Protection Act, 1986 - Sections 2(1)(o) & 2(1)(d) - Service and consumer - Services rendered to a patient by a medical practitioner or a hospital by way of diagnosis and treatment both medicinal and surgical would not come within meaning of service - A patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and such treatment cannot be considered to be a consumer medical practitioners or hospitals undertaking and providing paramedical services of any categories or kind cannot claim similar immunity - They would fall, to extent of such services rendered by them within definition of service and a person, availing of such service would be a consumer.

       Held, that the word service have to be construed in the context of the definition of the words consumer, 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 overall 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 Dr. A Indira Narayanan v. The Government of India (supra) 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 a 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 Section 2(1)(o) and a patient or his representatives in interest will riot 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 Commission 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 extant of such para-medical services undertakes to be rendered. We are of the view that rendering of paramedical 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 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 required 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", Section 2(1)(o) of the Act. It is the contention of the learned Counsel for the petitioner that the services rendered by a medical practitioner or a 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 is the basis of selection or option of a particular patient of a 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 for 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 original to either a special-contract or not is not really material but there is always an implied terms to act at all times in the best interest 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 thee existence of the personal qualities, skill, or service of the parties. At times, it may also refer to one 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 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 or 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 referenced to the nature and quality of service only and not in the context of finding out the existence or otherwise of the employer employee relationship. Thus viewed, it would be obvious that the services rendered by a medical practitioner, or a hospital by way of diagnosis and treatment, medical 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.

       (para 48)

       Result: Writ Petitions disposed of accordingly.

       IMPORTANT POINTS

       1. The services rendered to a patient by a medical practitioner or a 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.

       2. A patient who undergoes treatment under a medical practitioner or a 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 Consumer Protection Act.

       3. The medical practitioners or hospitals undertaking and providing paramedical services of any categories or kind cannot claim immunity from provisions of Consumer Protection 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.