Applicability of the Act to the services rendered by para-medical services.

The above writ petitions involved for determination certain common and identical issues currently in controversy in the Medical circles and consumer litigation relating to the applicability or otherwise of the provisions of the Consumer Protection Act, 1986 (Central Act 68 of 1986), hereinafter referred to as 'the 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.

2. A brief reference to the stage and circumstances of the case which led to the filing of the above writ petitions individually would be necessary to appreciate the nature of the grievance sought to be vindicated by the parties on either side. W.P. No. 1953 of 1992 as the amended prayer stands, has been filed by two Medical Practitioners (husband and wife) for the writ of prohibition prohibiting the respondents from exercising their jurisdiction against the Medical Practitioners on the basis of the complaint filed by the fourth respondent in C.P.O. No. 244 of 1991 on the file of the third respondent District Consumer Redressal Forum. The fourth respondent claims to have approached the petitioners for treatment for stomach pain, that an operation was performed on him, that on account of giving I.V. drips and injections on the right hand continuously for 3 days, three fingers of the right hand have got to be amputated and skin grafting was also necessitated due to the alleged negligence and careless treatment by the petitioners and, therefore, staked a claim for being compensated in a sum of Rs. 99, 500/-. The plea of the petitioners in this writ petition is that Section 2(1)(o) of the Act cannot be claimed to include the services rendered by a private Medical Practitioner, that a Medical Practitioner cannot be condemned for negligence in view of the decision reported in 1954(2) Q.B. 66 (Roe v. Minister of Health and Another), that no Medical Practitioner can be an insurer of effecting a cure and if at all the only remedy of a person aggrieved on account of alleged negligence is the remedy under the General Laws.

3. W.P. No. 5386 of 1992 was filed by a Medical Practitioner for a writ of declaration, declaring that clause 2(1)(o) of the Act will not include the services of a Medical Practitioner and as such a not amenable to the jurisdiction of the Consumer Protection Forum and clauses (b) and (c) of Section 10, clause (b) of Section 16 and clause (b) of Section 20 of the Act are invalid. The Petitioner who claims to possess M.S., D.L.O., F.A.C.S. and a practising E.N.T. Surgeon of 27 years standing, treated the third respondent on being referred to him by a private hospital and after diagnosing his ailment performed an operation under general anaesthesia, that the third respondent was duly discharged and though asked by the petitioner to come for review the third respondent did not turn up and that the petitioner cannot be attributed with any negligence at all in the performance of the operation. The third respondent filed O.P. No. 48 of 1992 before the second respondent claiming a sum of Rs. 1, 28, 000/- as compensation for the alleged lack of care while doing the first operation to remove the foreign body granuloma said to be resulting in the second operation and sufferings and expenditure. The plea of the petitioner is that mistaken diagnosis is not negligence, that Doctor/Surgeon cannot be held guilty of negligence in the absence of strict proof, that the proceedings before the Forum are summary in nature, that the constitution of the Forum is bad, that having regard to the decisions reported in 1982 AIR(MP) 132 (J. N. Srivastava v. Ram Biharilal), 18 DLR (Chattand v. Bell) and 1954(2) A.E.R. 151 (Roe v. Ministry of Health), the job of the Doctors should be approached from the stand point of the professional, that no Medical Practitioner is an insurer for effecting a cure nor should Courts condemn an honest exercise of judgment even though t