Chapter: 4.1.1 Consumer Jurisdiction of Medical Negligence Related Cases

Consumer Jurisdiction of Medical Negligence Related Cases

In a landmark judgment, INDIAN MEDICAL ASSOCIATION V/S V P SHANTA & ORS., III (1995) CPJ 1(SC), Supreme Court set at rest all controversies relating to coverage of medical profession within the scope of Consumer Protection Act, 1986. In the course of its consideration of a large number of civil appeals, writs and Special Leave Petitions, Supreme Court has inter alia made the following important observations: Definition of Service u.s. 2(1) (o) of the Act:

Held: "The definition of 'service' in Section 2(1) (o) of the Act can be split 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 lodging or both, housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of a service free of charge or under a contract of personal service."

Further held: "Medical Practitioners, though belonging to the medical profession are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of the Medical Council of India and/ or State Medical Council is no solace to the person who has suffered due to their negligence and the right of such person to seek redresss is not affected. Free Service:

The order further says that the Medical Practitioners, Govt. hospitals/ nursing homes and private hospitals/nursing homes broadly fall in three categories:
a) Where services are rendered free of charge to everybody availing the said services;
b) Where charges are required to be paid by everybody availing the services; and
c) Where charges are required to be paid by persons availing the services but certain categories of person who cannot afford to pay are rendered service free of charge.

While coverage of first two categories is in no doubt, the apex court has elaborately dwelt on the third category. Where a hospital or a nursing home charges a section of society for the services rendered (paving class) and provides free services to the poor class, such free service would also be service and the recipient a 'consumer' under the Act. But pavement of a token amount for registration purpose only at the hospital or a nursing home would not alter the position where service is otherwise rendered free of charge by a Medical Practitioner.