Point of Law: The definition of “service” in both enactments (repealed and new) are more or less similar and what has been said of “service” as defined in section 2(1)(o) of 1986 Act would apply ex proprio vigore to definition of terms “service” in section 2(42) of 2019 Act.

JUDGMENT :

S. Manikumar, J.

The writ appeal is filed by the petitioners in the writ petition challenging the judgment of the learned Single Judge in W.P. (C)No.970 of 2022 dated 10.2.2022. Appellants are doctors practicing modern medicine.

2. Short facts leading to the filing of the writ appeal are as follows:

A consumer complaint C.C.No.202/2020 was filed by the 1st respondent u/s 35 of the Consumer Protection Act, 2019 before the District Consumer Disputes Redressal Forum, Kannur against the appellants seeking compensation for medical negligence and deficiency of service on the part of the appellants while treating the complainant/1st respondent resulting allegedly in the loss of sight of the left eye of the 1st respondent.

3. On receipt of notice issued from the Consumer Disputes Forum, Kannur the appellants filed I.A.No.92/2020 in C.C.No.202/2020 challenging the maintainability of the complaint, for want of jurisdiction for the District Consumer Forum to entertain the above complaint under the new Consumer Protection Act, 2019 and hence, praying for dismissal of the complaint. The main contention raised in the above I.A is that 'medical services/practice' is not included in the list of services specifically referred to in the inclusive definition of 'service' under Section 2 (42) of the Consumer Protection Act, 2019. Thus it was contended that diagnosis and treatment of diseases including surgery of a patient by a medical practitioner is not treated as 'service' in the above definition under the present Act, and hence a dispute between a patient and the treating doctor, alleging medical negligence or deficiency of service in respect of the treatment cannot be brought within the purview, scope and ambit of the expression 'service', defined under Section 2(42) of the Consumer Protection Act, 2019. After hearing rival parties, the District Consumer Forum dismissed the above I.A. The said order was challenged by the appellants by filing a Revision before the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram, however the same was also dismissed.

4. It is thus aggrieved by the orders specified above the Writ Petition was filed seeking to quash the order passed by the District Consumer Forum, Kannur in I.A.No.92/2020 in C.C.No.202/2020 and the order of the Kerala State Consumer Disputes Redressal Commission in Revision No.16/2021; and for a further declaration that the Consumer Fora under the Consumer Protection Act, 2019 does not have the jurisdiction for taking cognizance and entertaining any complaint alleging 'medical negligence' or deficiency of 'medical service' under the provisions of the Consumer Protection Act, 2019. However the Writ court dismissed the writ petition by judgment dated 10.2.2022; operative portion of which reads thus :

“12. A reading of the inclusive part in Section 2(42) would show that the Parliament intended to specifically underline that certain services like Banking, Financing, Insurance, Transport, etc., which are in the nature of public utility services, would come within the purview of ‘services’. The definition is inclusive and not exhaustive. Therefore, all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service. The words “but not limited to” appearing in Section 2(42) clarifies the intention of the Parliament. The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service.

13. The petitioners would contend that the Draft Bill of the new Consumer Protection Act of 2019 originally included the ‘Health Sector’ among the illustrations of facilities that are treated as ‘service’ in Section 2(42) and since the ‘Health Sector’ was excluded in the Act, 2019, it should be held that the Parliament wanted to exclude the Health Sector from the purview of the Consumer Pr