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Supreme Court
Honble S.C. AGRAWAL, KULDIP SINGH & B.L. HANSARIA, JJ.
Indian Medical Association - Appellant
Versus
V.P. Shantha and Others - Respondents
Civil Appeal No. 688 of 1993
Decided On : November 13, 1995
The expression Complainant, as defined in section 2 (1) (b), is comprehensive to enable the consumer as well as any voluntry consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest, to file a complaint before the appropriate Consumer Disputed Redressal Agency. (Para 10)
By virtue of the definition of complainant in Section 2 (1) (c), the Act affords protection to the consumer against unfair trade practice or a restrictive trade practice adopted by any trader. defect in the goods bought or agreed to be bought by the consumer, deficiency in the ser vice hired or availed of or agreed to be hired or availed of by the consumer, charging by a trader price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containin such goods and offering for sale to public, goods which will be hazardous to life and safety when used, in con travention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods. (Para 10)
The definition of service in Section 2(1) (0) of the Act can be split up into three parts – the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loadging or both housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service. (Para 13)
The word `hires in Section 2(1)(d)(ii) has been used in the same sense as avails of as would be availed of in the latter part of Section 2(1)(d) (ii). By inserting the words or avails of after the word hires in Section 2(1)(d)(ii) by the Amendment Act of 1993, Parliament has clearly indicated that the word `hires has been used in the same sense as avails of. The said amendment only clarifies what was implicit earlier. The word use also sense as avails of. The said amendment only clarifies what was implicit earlier. The word use also means to avail oneself of (See : Blacks Law Dictionary, 6th Edn., at p. 1541). The word user in the expression which is made available to potential users in the definition of service in Section 2(1)(o) has to be construed having regard to the definition of consumer in Section 2(1) (d) (ii) and, if so construed it means availing of services. From the use of the word potential users it cannot, therefore, be inferred that the service rendered by medical practitioners are not contemplated by Parliament to be covered with in the expression `service as contatined in Section 2(1)(o). (Para 27)
A contract for services implies a contract whereby one party undertakes to render services i.e. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion. (See : Oxford Companion to Law, p. 1134). A contract of service implies relationship of master and servant and involves an obligation to obey order in the work to be performed and as to its mode and manner of performance. Strouds Judicial Dictionary, 5th Edn., P. 540; Simmons vs. Health Laundry Co. (1910) 1 K.B. 543) and Dharangadhara Chemical Works (supra) at p. 150). We entertain no doubt that Parliamentary draftsman was aware of this well accepted distinction between ``contract of service and ``contract for services and has deliberately chosen the expression contract of service instead of the expression contract for service, in the exclusionary part of the definition of service in Section 2(1)(o). The reason being that an employer can not be regarded as a consumer in respect of the services rendered by his employee in pursuance of a contract of employment. (Para 40)
Section 14(1)(d) would, therefore, indicate that the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the Opposite Party. A determination about deficiency in service for the purpose of Section 2(1)(g) has, therefore, to be made by applying the same test as is applied in an action for damages for negligence. (Para 30)
No case is made out that the Act suffers from the vice of arbitrariness or unreasonableness so as to be violative of Articles 14 and 19(1) (g) of the Constitution. (Para 57)
(2). These Appeals, Special Leave Petitions and the Writ Petition raise a common question, viz., whether and, if so in what circumstances, a medical practitioner can be regarded as rendering service under Section 2 (1) (o) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act). Connected with this question is the question whether the service rendered at a hospital/ nursing home can be regarded as service under section 2 (1) (o) of the Act. These questions have been considered by various High Courts as well as by the National Consumer Disputes Redressal Commission (hereinafter referred to as the National Commission).
(3). In Dr. A.S. Chandra vs. Union of India (1), a Division Bench of Andhra Pradesh High Court has held that service rendered for consideration by private medical practitioners, private hospitals and nursing homes must be construed as service for the purpose of Section 2 (1) (o) of the Act and the persons availing such services are consumers within the meaning of Section 2 (1) (d) of the Act.
(4). In Dr. C.S. Subramanian vs. Kumarasamy & Anr.(2), A Division Bench of the Madras High Court has, however, taken a different view. If has been held that the services rendered to a patient by a Medical Practioner or by a hospital by way of diagnosis and treatment, both medicinal and surgical, would undergoes treatment under a Medical Practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical can not be considered to be a consumer within the meaning of Section 2 (1) (d) of the Act. but the Medical Practitiners or hospitals undertaking and providing para medical services of all kinds and categories cannot claim similar immunity would fall, to from the provisions of the Act and that they he extent of such para-medical services rendered by them, within the definition of service and a person availing of such service would be a con- sumer within the meaning of the Act. C.A. Nos 4664-65/94 and Civil Appeal arising out of SLP (C) No, 21775/94 filed by the complainants and Civil Appeals arising out of SLP (C) Nos. 18445-73/94 filed by the Union of India are directed against the said judgment of the Madras High Court.
(5). The National Commission by its judgment and order dated Decem ber 15, 1989 in First Appeal No. 2 of 1989 has held that persons who avail themselves of the facility of medical treat- ment in Government hospitals are not consumers and the said facility offered in the Government hospitals cannot be regarded as service rende ``for consideration. It has been held that the payment of direct or indirect taxes by the public does not con- stitute ``consideration paid or hiring the services rendered in the Government hospitals. It has also been held that contribution made by a Government employee in the central Government Health Scheme or such other similar Scheme does not make him a consumer within the meaning of the Act. Civil Appeal arising out of SLP (C) No. 18497/93 has been filed by Con- sumer Unity Trust Society, a cognised consumer association, against this Judgment of the National Commission.
(6) By judgment dated April 21, 1992 in First Appeal Nos. 48 and 94 of 1991, Cosmopolitan Hospitals & Anr. vs. Smt. Vasantha P. Nair. (3), the National Commission as held that the activity of providing medical asistan- ce for payment carried on the hospitals and members of the medical profession falls within the scope of the expression service as defined in Section 2(1)(a) 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. It has also been held that the legal representatives of the deceased patients who were undergoing treatment in the hospital are consumers under the Act and are c
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