Enforcement of orders passed by Consumer Fora
Status as to execution of an order, post 2002 amendment of the Act:
The 2002 amendment enables the Consumer Forum to pass an interim order and provides that a Consumer Forum may ensure compliance of the order by attachment of property and sale if required, in case non- compliance of the order continues beyond 3 months. Further, an order passed by the Consumer Forum may be executed by certifying the amount due to the District Collector who shall proceed to recover the amount as arrears of land revenue.
Hon'ble Commission, Delhi has in fact referred to S. 27 of the Act in laudatory terms as follows:
Section 27 is thus the kingpin of consumer jurisdiction, which stands proudly apart from the ordinary and now notoriously tardy Civil process. Without the sanction of this Section perhaps, the Consumer Jurisdiction would only be a paper tiger lacking teeth altogether.'
While the State Commission has noted the stand of the District Forum that unless a 'stay' order is passed by the Superior Commission, mere filing of an appeal or revision of a petition does not prevent proceedings u.s 25 or u.s. 27, it has not adequately dwelt on this aspect, or on the provision of S. 24 which says that when an appeal is filed, the order of the lower authority is not final. It appears that the State Commission has noted the stand taken by the District Forum approvingly. When a District Forum passes an order against a doctor or say a manufacturer, dealer, trader, financial institution or insurance company granting compensation to a purchaser, hirer or insured in respect of defective goods or deficiency in service, quite often such firms/ bodies seek legal opinion on the scope of filing an appeal. In case legal opinion indicates that the order in question is erroneous and that there are reasonable chances of succeeding in an appeal, an appeal is generally filed. An appeal has to be preferred within a period of THIRTY DAYS of the order.
'DATE OF ORDER' MEANS DATE OF KNOWLEDGE OF ORDER'
As, many large organizations with multiple layers of decision-making are hard pressed for time, the first question relates to the time constraint prescribed u.s.15 of the Act.
The Hon'ble National Commission has held in the case of:
M/ S HINDUSTAN PAPER CORPORATION LTD.
PETITIONER V/S.M/S. DHIR COPY HOUSE AND ANR (RESPONDENT):
Revision Petition No.37 of 1992 and also in R.P.No.48 of 1992 that the date of the order referred to in section 15 of the Consumer Protection Act, 1986, means date of knowledge. The Hon'ble National Commission has followed the decision of the Supreme Court in the case of RAJA HARISHCHANDRA RAJ SINGH V/S. THE DEPUTY LAND ACQUISTION OFFECER, AIR, 1961 S C 1500 and in MADANLAL V/ S STATE OF U.P. &ORS AIR 1975 S. C. 2085.
After considering the question in detail, the National Commission accepted the contention of the appellant that the date of the order is the date of communication of the order. Date of the order:
National Commission has held in Union of India & Ors V/S Ramesh Kumar III (1995) CPJ 67 (NC) that 'date of the order' actually means date of communication of a certified copy of the carder Tin order is required to be annexed the said order.
The Supreme Court has held in Housing Board Colony, Welfare Association and Others (1995) 5S.C.C. 672 that the expression, 'date of Eke order' means the date on which a copy of the order was made available and the period of limitation prescribed with regard to filing an appeal shall be construed as commencing from the date of communication of the order in the manner laid down in the rules framed under the Act.
Date of the order for the purpose of compliance of the order:
In the event an order is passed directing a party to comply within a specified period from the date of the order, a similar question arises. Though there does not appear to be any discussion on this aspect, it appears to us that such an order is analogous to the one where limitation is to be counted from the date of the order. Further even if an order or operative part of the order is passed in open court it is arguable to say that a party aggrieved from such an order should have reasonable opportunity of examining the order to avail of expert advice and to prefer an appeal against the order. Thus we are of the view that 'date of the order' even with reference to compliance of the order has to be read as the date on which a certified copy of the order is served or posted to the party concerned.
Sufficient cause for condonation of delay
The expression 'sufficient cause' means genuine reasons on account of which appellant could not prefer an appeal within the stipulated time which enables the Commission to exercise judicial discretion while condoning delay.
State Commission Rajasthan has held in Rajasthen State Insurance and G.P.R. Department V/s Radhey Shyam Goyal (1992) I C.P.R. 275 (S.C., Raj) that it is incumbent upon the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation. Further, the State Commission of Rajasthan has held in the above mentioned case that even a much larger body like the State is no different from a private litigant for the purpose of condonation of delay against the limitation bar.
Supreme Court had observed in Collector, Land Acquisition, Anantnag V/s Mst. Kataji and others AIR 1987 S.C. 1353 that. while considering condonation of delay, a Court has to keep in mind that a 'State' represents public interest and delay may be condoned in appropriate cases in an even handed manner. Thus so far as consumer Jurisdiction is concerned, the 'State' does not appear to enjoy any special status or privileges.
Further, the National Commission has held in R.S.R.T.C. V/s Dunger Chand, J (1995) CPJ 37 (NC) that when the State Commission condones delay at its discretion, there is no scope for interference by the National Commission. The National Commission has also held in National Insurance Co. Ltd. V/s. M/s. Venus Traders & Anr 1994 (1) CPR 468 (NC) that, limitation prescribed under the Carriers Act is not applicable to complaints filed under the Consumer Protection Act.
Right to appeal is unfettered
The National Commission has held in The New India Assurance Co. Ltd. V/s. The Sangamner Bhag Sahakari Sakhar Karkhana Ltd., R.P. No. 723 of 1994 that the statutory right of appeal which is unconditional cannot be abridged by the imposition of any condition as regards payment of costs or deposit of the amount payable under the order appealed against. With the above observational the National Commission set aside the impugned order of the State Commission, Maharashtra, requiring the petitioner to deposit the decretal amount payable by him under the order of the District Forum before the State Commission for payment to the complainant as a precondition for admission of appeal. However, 2002 amendment has incorporated admission procedure, as set out in S. 19A even in respect of appeal. This provision enables, by necessary implication, disposal of an appeal at the stage of admission itself.
Despite filing an appeal, appellants are frequently faced with proceedings for execution of the order appealed against and also penal proceedings even in cases where appeals are admitted by a superior authority.
Whether an appeal is maintainable in respect of orders passed under Sections 27?
The Consumer Protection Act does not provide for an appeal against an order passed by a redressal agency under Section 25 of the Act. However, by incorporating S. 27A, the 2002 amendment enables the affected party to prefer an appeal even in respect of an order passed u .s 27 of the Act.
State Commission, Delhi has held in MRS. SUMAN LATA vs. ANAND CONSTRUCTION (DELHI) PVT. LTD, .II- 1993 CPJ 352, as follows:
'It is relevant to mention that, under section 27, sentence of fine or imprisonment or both can be awarded by courts under the Act. It is well settled that the Commission or Forum can discover from the language of an enactment the true intention of the legislature. Normally the court has no power to give to the language of an Act either a wider or a narrower meaning. So the Commission is of the opinion that no appeal is maintainable against the order of the District Forum passed under section 27 of the Act to the State Commission.'
Legal aspects and practical difficulties:
Appellants fear that, in case decretal amount is paid to the complainant, even if the appellant succeeds before the State Commission, recovery of the amount will not be easy. While penal provision acts as a deterrent for the traders, manufacturers, dealers, banks and insurance companies as it holds out a threat for their well established reputation, the effect of proceedings u.s. 25 & 27 is much less in the case of ordinary consumers. Considering the above, there is a need to evolve and lay down appropriate rules for depositing the whole or a part of the decretal amount with the concerned Consumer Forum while preferring an appeal against the said order.
Section 24 that deals with finality of the order of the District Forum provides in effect that an order of the lower authority is final if no appeal is preferred against such 'order' under the provision of the Act.
Section 25 deals with enforcement of the order by a District Forum, State Commission or National Commission. This section provides that every order made by the Forum, State Commission and National Commission may be enforced as if it is a decree of a Civil Court in a suit. In the event Consumer Courts are unable to enforce the order, the section provides that such order may be sent office of the opponent company is situated. It is important to note that the section enables Consumer Courts to enforce every order passed by them. It is also relevant to note that the Act confers summary jurisdiction and that Consumer Courts have the obligation of enforcing their own orders if they are satisfied that the opposite party has failed to comply with their orders without a valid reason.
Section 27 is a penal provision which provides for imprisonment for minimum period of one month but which may be extended upto THREE years and / or with a fine in the range of Rupees TWO THOUSAND to Rs. TEN THOUSAND. This raises a very important question, whether Section 27 of COPRA can be invoked without resorting to Section 25 and whether Section 25 and Section 27 can be invoked simultaneously. When we examine the scheme of the Act, it appears that penal provision would be invoked when the opposite party neglects to comply with the order of Consumer Forum. In the event a notice / summons is issued, calling upon the opposite party to comply with the order, penal provision may logically follow upon failure of opposite party to comply with the order if no reasonable ground is made out for non-compliance with the Consumer Forum despite notice. Further the principles of natural justice require that the opposite party should be given an opportunity to say why the penal provisions should not be invoked against him.
Grant of stay orders
The State Commission, Delhi has held in an appeal filed by M/s Gupta Enterprises (In A. 50/91 Complainant: Mrs. Shakuntala Gupta) that, enforcement of an order of the District Forum can be stayed against furnishing Bank Guarantee to the District Forum.
Though the Consumer Protection Act does not contain any specific provision enabling Consumer Courts to grant stay orders, these are often granted. Generally Commissions (State Commission or National Commission) do not grant stay orders against a money decree passed by the lower courts unless it is shown that execution of the improper order will result in gross miscarriage of justice or substantial loss or damage to the appellant or petitioner, or security has been given by appellant for due performance. It is relevant to note that under order 41 Rule 5 of CPC, an appeal does not operate as a stay of proceedings under a decree or order appealed against except so far as the Appellate Curt may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree. Quite often the appellant is called upon to deposit the decretal amount, in full or in part as a condition for grant of stay. We feel such an order is just and equitable to both the parties.
2002 Amendment requires that the appellant has to deposit 50% of the amount awarded in a money decree or Rs. 25000/- in case of an appeal to the State Commission, Rs. 35,000/- in case of an appeal to the National Commission or Rs. 50,000/- in case of an appeal to Supreme Court, whichever is lesser, while preferring an appeal. Thus, the impugned order is stayed automatically till the matter is finally disposed of.
Compliance of the order of lower fora and appeals
Prior to the 1993 amendment, penal provision could be invoked only against a trader or a person who fails to comply with the order of Consumer Court. But by virtue of 1993 amendment penal provision can be invoked even against a complainant. The revised section 27 provides as follow:
'Where a trader or a person against whom a complaint is made or the complainant fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission as the case may be, such trader or person or the complainant shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees or with both provided that the District Forum, the State Commission or the National Commission as the case may be, may if it is satisfied that the circumstances of any case so require impose a sentence of imprisonment or fine or both, for a term lesser than the minimum term and an amount lesser than the minimum amount specified in this section.
Consequent to the above, in the event a trader, manufacturer, bank, insurance company or a professional like a doctor or lawyer complies with the order of the lower fora prior to or subsequent to filing of an appeal and if such an appellant succeeds in the appeal or Revision Petition, the same can be enforced against the complainant in the same manner in which an order of the Consumer Forum is enforced against the opposite party. In such an event, the appellant will have to initiate proceedings u.s 27 of the Act in the event the complainant fails to comply with the order of the Superior Authority / Tribunal (State Commission or National Commission) where the order of the lower authority is challenged.
2002 Amendment has empowered the Consumer Forum to pass interim orders and provides that a Consumer Forum may ensure compliance of the order by attachment of property and sale if required, in case non- compliance of the order continues beyond 3 months. Further, an order passed by the Consumer Forum may be executed by certifying the amount due to the District Collector who shall proceed to recover the amount as arrears of land revenue.
Further, full bench of Supreme Court considered constitutional validity of Consumer protection Act, 1986 in State of Karnataka v. Vishwabharathi House Building Co. Op. Society & Ors., I(2003) CPJ 1 (SC). The apex court interalia held as follows (abridged):
1. We, therefore, are clearly of the opinion that the said Act cannot be said to be unconstitutional.
2. A bare perusal of S. 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum, State Commission or National Commission will be deemed to be a decree or order made by Civil Court in a suit. Legal fiction so created has a specific purpose, i.e., for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum or Commission is unable to execute its Order, the same may be sent to Civil Court for its execution. The High Court (Karnataka High Court) was therefore not correct to hold that in each and every case the order passed by Forum/ Commission is required to be sent to Civil Court for its execution.
3. Furthermore, S.27 of the Act also confers additional powers upon the Forum/Commission to execute its order. The said provision is akin to O 39 R 2A of CPC or the provisions of the Contempt Courts Act or S. 51 read with O. 21 R 37 of CPC. Section 25 should be read in conjunction with S. 27. A parliamentary statute indisputably can create a tribunal and might say that non-compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.
4. It is well settled that the cardinal principle of interpretation of statute is that Courts or Tribunals must be held to possess power to execute their own order.
5. It is also well settled that a statutory Tribunal which has been conferred with the power to adjudicate a dispute and pass necessary order has also the power to implement its order. Further, the Act which is a self contained Code, even if it has not been specifically spelt out, must be deemed to have been conferred upon the tribunal all the powers in order to make its order effective.
6. In Savitri v. Gobin Singh Rawat, AIR 1986 SC 984, it has been held as follows: "... Every Court must be deemed to possess by necessary intendment all such powers as are necessary to make its orders effective. This principle is embodied in the maxim 'ubi aliquid cnceditur conceditur ed id since qua res ipsa issue non protest' (where anything is conceded there is conceded also anything without which the thing itself cannot exist)
7. In regard to construction of S. 25, plain reading of S. 25 shows that Forum/Commission is entitled to execute its order. It is now well settled interpretation of statute that plain language of the statute employed in a section must be given its ordinary meaning.
Showing posts with label Consumer Laws and Medical Profession. Show all posts
Showing posts with label Consumer Laws and Medical Profession. Show all posts
Tuesday, March 23, 2010
Chapter: 7 Enforcement Of Orders Passed By Consumer Fora
Enforcement Of Orders Passed By Consumer Fora
Objectives
The objective of this chapter is to apprise the reader of the mechanism and machinery for enforcement of the orders passed by Consumer Fora. A 'law looses its significance unless there is an effective remedy. An effective remedy involves effective machinery for enforcement of the orders passed by a court or tribunal.
Introduction
Status prior to 2002 amendment:
Consumer Fora are empowered u.s. 25 of the Act to enforce every order made by them, as if it were a decree or order made by a court in a Civil suit. In case of inability to enforce such an order it is lawful for Consumer Fora to send such orders to the Civil Court of competent jurisdiction for enforcement.
In case an order has been passed against a Company, jurisdiction of the court enforcing the order has to be ascertained based on location of the registered office of the company. In case of an individual, voluntary residence or location of business activity or place of work or employment of the person is to be taken into account while sending an order passed by the District Forum, State Commission or National Commission for execution by a court.
On the face of it, it appears section 25 of the Act deals with execution of an order and section 27 deals with penal proceedings where a trader or a person against whom a complainant insists to comply with the order fails to comply with order. This section provides for imprisonment for a period ranging between one month to three years and a penalty in the range of Rs. 2000/- to Rs. 10,000/-.
Though the above mentioned penal provision appears under the heading 'PENALTY', the wording of the section very clearly indicates that this section can be invoked immediately upon failure of the opponent/ respondent who can be a medical professional or any other person held to be negligent in proving the service undertaken by him, a trader (even a complainant) to comply with the order. Therefore a person in whose favour an order has been passed, is entitled to invoke the penal provision in the event his opponent fails to comply with the order in addition to execution proceedings specified u.s. 25 of the Act.
While execution proceedings u.s. 25 are Civil Proceedings, proceedings u.s. 27 are Quasi Criminal in nature. Considering the fact that the person failing to comply with the order can be imprisoned for a minimum period of one month which may extend to three years, an order passed under the Consumer Protection Act has the effectiveness of orders passed by Criminal Courts.
Objectives
The objective of this chapter is to apprise the reader of the mechanism and machinery for enforcement of the orders passed by Consumer Fora. A 'law looses its significance unless there is an effective remedy. An effective remedy involves effective machinery for enforcement of the orders passed by a court or tribunal.
Introduction
Status prior to 2002 amendment:
Consumer Fora are empowered u.s. 25 of the Act to enforce every order made by them, as if it were a decree or order made by a court in a Civil suit. In case of inability to enforce such an order it is lawful for Consumer Fora to send such orders to the Civil Court of competent jurisdiction for enforcement.
In case an order has been passed against a Company, jurisdiction of the court enforcing the order has to be ascertained based on location of the registered office of the company. In case of an individual, voluntary residence or location of business activity or place of work or employment of the person is to be taken into account while sending an order passed by the District Forum, State Commission or National Commission for execution by a court.
On the face of it, it appears section 25 of the Act deals with execution of an order and section 27 deals with penal proceedings where a trader or a person against whom a complainant insists to comply with the order fails to comply with order. This section provides for imprisonment for a period ranging between one month to three years and a penalty in the range of Rs. 2000/- to Rs. 10,000/-.
Though the above mentioned penal provision appears under the heading 'PENALTY', the wording of the section very clearly indicates that this section can be invoked immediately upon failure of the opponent/ respondent who can be a medical professional or any other person held to be negligent in proving the service undertaken by him, a trader (even a complainant) to comply with the order. Therefore a person in whose favour an order has been passed, is entitled to invoke the penal provision in the event his opponent fails to comply with the order in addition to execution proceedings specified u.s. 25 of the Act.
While execution proceedings u.s. 25 are Civil Proceedings, proceedings u.s. 27 are Quasi Criminal in nature. Considering the fact that the person failing to comply with the order can be imprisoned for a minimum period of one month which may extend to three years, an order passed under the Consumer Protection Act has the effectiveness of orders passed by Criminal Courts.
Chapter: 6.1.3 Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors,
In Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors, I(1999) CPJ 43(NC), while allowing the complaint, Hon'ble National Commission has observed as follows:
1. On inadequate Pre-operative tests: By not conducting these necessary preoperative tests such as MRI Scan, contract CT Scanning etc. O.P No.4 and 2 denied the benefit of advance information about excision of tumour into the inter-vertebral foramen and the area spread of the mass vis-a-vis the vertebral body and the spinal cord, and deprived the complainant of the normal medical care he was expected to get prior to the operation. Consequently, O.P No.2 opened the thorax and proceeded without the collaboration of the neurosurgeon and noticed the erosion of the vertebrae and spread of tumour into inter-vertebral foramen while removing tumour. Thus the negligence on the part of OP No. 4 and 2 led to a deficiency of service contended by the complainant in respect of the inadequacy of the diagnostic procedure in the pre-operative stage gets firmly established.
2. Where deficiency in service in the pre-operative stage is per se established: There was an injury to the spinal cord and it was damaged consequent to the operation and there was reduction/non supply of blood to spinal cord. Opposite Parties have not been able to explain why removal of a benign tumor in the chest Bali resulted in spinal cord injury and paraplegia. There was lack of proper appreciation and assessment of the neurological implications of the pathology and spread of the tumour, due to which the surgery was performed without the complete involvement of the neurosurgeon. This was a serious lapse on the part of O.P No.2 and amounted to negligence and lack of care and, therefore, deficiency in service in the operation per se.
3. Negligence in Tort: A person holds out himself as ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty or care in deciding Werner to undertake the case, duty of care in deciding w hat treatment to give or a duty of care in administration of treatment. A breach of any of those duties gives a right of action of negligence to the patient. In the present case removal of a substantial part of the tumour was preceded by the histopathology investigation report. The complainant actually had a benign tumour Schwannoma. When the distinction betweenneurofibroma and Shwannoma was pointed out, O.P No.2 agreed with the practical significance in transecting the nerves and stated that he removed the tumour along with the intercostal nerves since in a neurofibroma, the entire nerve is involved in the tumour, thereby implying that he was dealing with neurofibroma.
4. Whether parents, brother and uncle of the patient, who is an adult, are covered within Sec. 2(1) (d)(ii) of the Act as Consumers and consequently entitled to claim compensation? Parents who gave support to the patient for a very long period in view of the physical immobilization of the patient and sensory deficiency consequent to the surgery, are consumers and were awarded Rs. 1.5 lace jointly by way of compensation (in addition to Rs.14 lacs awarded to the patient). However the claim TV the Complainant's brother and maternal uncle cannot be sustained as they are not covered by the definition of consumer under the Act.
Further, doctors are also required to keep in mind the requirements of medical ethics. One of the requirements, namely, display of charges/fees for variety of services rendered by Medical Professionals was highly controversial and a sensitive topic amongst the medical fraternity. Medical ethics (as amended) provides that specialists should have necessary qualification and that specialists alone should attend specialty problems when specialists are available. Thus a distinction may be made between emergencies when a specialist in a particular specialty is not available and a planned surgery as in the case of Prashanth S. Dhananka.
Whether Consumer Cases involving complicated issues of law and facts and pending before Consumer Forum for several years are necessarily to be sent to Civil Court?
In a landmark decision of the Full Bench of the Supreme Court in the matter of Dr. J.J.Merchant and Ors. V. Shrinath Chaturvedi, 2002(4) ALL MR 605 (S.C) the Apex Court inter alia dealt with the procedure relating to conduct of matters before the Consumer Fora, delay in disposal clef complaints and whether a complicated matter has to be necessarily dismissed by the Consumer Redressal Agency with liberty to approach the civil court.
In regard to speedy disposal of a complaint and the procedure to be adopted by the Commission, the Supreme Court held as follows:
Consumer Protection Act (1986), Ss.13, 17, 21
From S.13 it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding -15 daters as may be granted by the District Forum or the Commission. For having speedily trials this legislative mandate of not giving more than 45 days in submitting, the written statement or the version of the case is required to be a adhered. If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated.
Under S.13(4) of the Act, the Commission or the Forum is empowered to exercise the powers vested in Civil Court for discovery and production of any document, the reception of evidence on affidavit and of issuing of any commission qua examination of any witness. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.
It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true and in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Fora to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under section 13(4)(v)]. It is also to be stated that Rule 4 in Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that the Court could examine witnesses or the commissioner appointed by it. The Commission is also empowered to follow the said procedure.
The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if the other side seeks for cross-examination and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and such experts including doctors on affidavits also could reply those questions.
In cases where stakes are very high and still the party intends to cross-examine such doctors or experts, a videoconference could be held or asking questions by arranging a telephone conference and at the initial stage this cost should be borne by the person who claims such a videoconference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.
1. On inadequate Pre-operative tests: By not conducting these necessary preoperative tests such as MRI Scan, contract CT Scanning etc. O.P No.4 and 2 denied the benefit of advance information about excision of tumour into the inter-vertebral foramen and the area spread of the mass vis-a-vis the vertebral body and the spinal cord, and deprived the complainant of the normal medical care he was expected to get prior to the operation. Consequently, O.P No.2 opened the thorax and proceeded without the collaboration of the neurosurgeon and noticed the erosion of the vertebrae and spread of tumour into inter-vertebral foramen while removing tumour. Thus the negligence on the part of OP No. 4 and 2 led to a deficiency of service contended by the complainant in respect of the inadequacy of the diagnostic procedure in the pre-operative stage gets firmly established.
2. Where deficiency in service in the pre-operative stage is per se established: There was an injury to the spinal cord and it was damaged consequent to the operation and there was reduction/non supply of blood to spinal cord. Opposite Parties have not been able to explain why removal of a benign tumor in the chest Bali resulted in spinal cord injury and paraplegia. There was lack of proper appreciation and assessment of the neurological implications of the pathology and spread of the tumour, due to which the surgery was performed without the complete involvement of the neurosurgeon. This was a serious lapse on the part of O.P No.2 and amounted to negligence and lack of care and, therefore, deficiency in service in the operation per se.
3. Negligence in Tort: A person holds out himself as ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, namely, a duty or care in deciding Werner to undertake the case, duty of care in deciding w hat treatment to give or a duty of care in administration of treatment. A breach of any of those duties gives a right of action of negligence to the patient. In the present case removal of a substantial part of the tumour was preceded by the histopathology investigation report. The complainant actually had a benign tumour Schwannoma. When the distinction betweenneurofibroma and Shwannoma was pointed out, O.P No.2 agreed with the practical significance in transecting the nerves and stated that he removed the tumour along with the intercostal nerves since in a neurofibroma, the entire nerve is involved in the tumour, thereby implying that he was dealing with neurofibroma.
4. Whether parents, brother and uncle of the patient, who is an adult, are covered within Sec. 2(1) (d)(ii) of the Act as Consumers and consequently entitled to claim compensation? Parents who gave support to the patient for a very long period in view of the physical immobilization of the patient and sensory deficiency consequent to the surgery, are consumers and were awarded Rs. 1.5 lace jointly by way of compensation (in addition to Rs.14 lacs awarded to the patient). However the claim TV the Complainant's brother and maternal uncle cannot be sustained as they are not covered by the definition of consumer under the Act.
Further, doctors are also required to keep in mind the requirements of medical ethics. One of the requirements, namely, display of charges/fees for variety of services rendered by Medical Professionals was highly controversial and a sensitive topic amongst the medical fraternity. Medical ethics (as amended) provides that specialists should have necessary qualification and that specialists alone should attend specialty problems when specialists are available. Thus a distinction may be made between emergencies when a specialist in a particular specialty is not available and a planned surgery as in the case of Prashanth S. Dhananka.
Whether Consumer Cases involving complicated issues of law and facts and pending before Consumer Forum for several years are necessarily to be sent to Civil Court?
In a landmark decision of the Full Bench of the Supreme Court in the matter of Dr. J.J.Merchant and Ors. V. Shrinath Chaturvedi, 2002(4) ALL MR 605 (S.C) the Apex Court inter alia dealt with the procedure relating to conduct of matters before the Consumer Fora, delay in disposal clef complaints and whether a complicated matter has to be necessarily dismissed by the Consumer Redressal Agency with liberty to approach the civil court.
In regard to speedy disposal of a complaint and the procedure to be adopted by the Commission, the Supreme Court held as follows:
Consumer Protection Act (1986), Ss.13, 17, 21
From S.13 it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding -15 daters as may be granted by the District Forum or the Commission. For having speedily trials this legislative mandate of not giving more than 45 days in submitting, the written statement or the version of the case is required to be a adhered. If this is not adhered, the legislative mandate of disposing of the cases within three or five months would be defeated.
Under S.13(4) of the Act, the Commission or the Forum is empowered to exercise the powers vested in Civil Court for discovery and production of any document, the reception of evidence on affidavit and of issuing of any commission qua examination of any witness. The Commission can always insist on production of all documents relied upon by the parties along with the complaint and the defence version.
It is true that it is the discretion of the Commission to examine the experts if required in an appropriate matter. It is equally true and in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Fora to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under section 13(4)(iii)]. It also empowers such Forums to issue any commission for examination of any witness [under section 13(4)(v)]. It is also to be stated that Rule 4 in Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that the Court could examine witnesses or the commissioner appointed by it. The Commission is also empowered to follow the said procedure.
The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if the other side seeks for cross-examination and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and such experts including doctors on affidavits also could reply those questions.
In cases where stakes are very high and still the party intends to cross-examine such doctors or experts, a videoconference could be held or asking questions by arranging a telephone conference and at the initial stage this cost should be borne by the person who claims such a videoconference. Further, cross-examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time.
Chapter: 6.1.2 Demand of Exorbitant fee
Demand of Exorbitant fee:
While the National Commission agreed with the observation of the State Commission that fees paid for operation also includes post operative care, the same was held to be the duty of the concerned institution and not that of the private doctor. The National Commission reversed the decision of the State Commission, Maharashtra in B.S Hedge v/s Dr. S. Bhattacharya and Cross Appeal, 1994(2) CPR 61 (NC), awarding compensation on the grounds that the doctor acted negligently in performing the operation and rendering inadequate post operative care and treatment, holding that there was no evidence of deficiency in service on the part of Opposite Party either in performing the operation or rendering adequate care and treatment.
Hon'ble Commission further observed as follows:
"As rightly observed by the State Commission, how much to charge as fees for medical services is the choice of the medical practitioner, even though it may be excessive, unreasonable and unjustifiable.”
Further it was held
"The demand and acceptance of an exorbitant fee cannot be deemed to be deficiency in service."
Thus it is now established that adjudication of claims against medical professionals has to be based on expert opinion/evidence and should be circumspect so that false and vexatious complaints are not filed merely to harass the doctors who provide a very important service to the community.
Special Circumstances:
1. Where a patient suffered a heart attack when a minor operation was being performed, the same does not constitute deficiency in service rendered.
In Sethuraman Subramaniam Iyer (Applicant) v/s.Triveni Nursing Home & Anr. I(1998) CPJ 10 (NC), the complainant alleged medical negligence and deficiency in service on the part of Respondents. Complainants' wife, who was suffering from sinusitis, was advised a minor operation. Before she was operated, she suffered a massive heart attack and died.
State Commission dismissed the complaint based on operation notes. Appellant has contended that operation notes were fabricated and were prepared after the death of the Complainant's wife. The National Commission held as follows: 'In our view, the State Commission was right in holding that there was no negligence on the part of the Respondent. The State Commission rightly analysed and appreciated the material placed on record. The State Commission arrived at the finding after taking into consideration the totality of the circumstances. No case is made out by the appellant for interference with the order passed by the State Commission.
2. Where Medical Negligence was not proved:
State Commission Maharashtra upheld the dismissal of a complaint by District Forum Sangli in F.A No.142/95 in the matter of KASHIRAM BHIMRAO KAMBLE V/S DR. UDAY A. PATIL AND ANR, and held as follows:
"We feel that the detailed discussions of the circumstances made by the District Forum calls for no interference. There is no negligence on the part of the Respondents. Of course it is unfortunate that complainant has lost his wife who was around 45 years of age. But all the same, no fault could be found or negligence could be attributed to the Respondents. We are therefore unable to sustain the claim of the Complainant and dismiss the appeal with, however, no order as to cost."
Brief Facts Of the case:
Complainant and his wife had been regular patients of Dr. Kulkarni. Dr. Kulkarni never saw or witnessed any allergy to any antibiotics in the case of Kasturi, wife of the appellant. Therefore Dr. Kulkarni had no reasons to suspect that ampicillin will cause her allergy. Dr. Patil is the eve surgeon who prescribed medicines for eye treatment. Dr. Kulkarni was careful to engage the services of Dr. Naik, dermatologist. Kasturi w as taken to Walness hospital on 1.9.94 for further treatment of Steven Johnson Syndrome (loss of skin). She was there for 4 days and died on 5.9.94 and the cause of the death was Septicemia due to 75% skin loss due to drug reaction and this is known as 'Steven Johnson Syndrome.'
Reasons:
Both the doctors were not aware of Kasturi's allergy to penicillin or other allied medicines. But all the sane, Kasturi had improved in the hospital of Dr. Kulkarni. The appellant took her away to Walness hospital without justifiable cause. Apart from that, it can be gathered from the evidence of Dr. Shahpurkar, Dr. Chadda and Dr. Tekale that treatment given to Kasturi in the hospital of Dr. Kulkarni was proper in given circumstances of the case. Now in this matter, we must observe that Dr. Dewed who was a member of the District Forum has rather contributed his original thought.
Dr Dewan has opined that under the medical ethics, there is absolutely no duty to refer or consult the experts except where the patient requests the referral or the consultation in doubtful or difficult case/s or if the quality of care and management can be conceivably enhanced by referral or consultation. He also stated that the Steven Johnson Syndrome is a self-limiting disease and rarely involves several mucous membranes and internal organs producing a major syndrome.
Therefore as the deceased was making satisfactory progress the patient should not have been removed to another hospital. Therefore it is difficult to conclude that either of the respondents was responsible for the death of Kasturi.
3. The fact that patient has not recovered does not by itself prove Medical Negligence:
The State Commission, MvIaharashtra in SMT. NIRMALA R PARAB V/S DR. KALPNA DESAI & ORS, COMPLAINT NO. 87/92 (facts of this case have been discussed in the previous chapter) dismissed the Complaint by an elaborate order, brief particulars of which are given below:
This complaint was filed by Shri R.S. Parab, father of Firs. Ashwini Rane on behalf of his daughter, who is like a living vegetable and is unable to understand anything around her. Ashwini was under treatment of Or. Kalpana Desai from the 5th month of her pregnancy. Since she had a previous history of miscarriages, Dr. Desai had put sutures on the womb of the patient and informed that the same will be removed on 2nd May, 1990 as the expected date of delivery was 12th May, 1990. On 23.4.90 Ashwini delivered a baby boy for which a cesarean operation was necessary. The patient was told that she should be admitted to another hospital where equipment/facilities and emergency treatment were available as the blood pressure had suddenly fallen and so had the pulse. Thereafter she was transferred to another hospital. But as the patient could not afford the expenses she was again shifted to Lokmanya Tilak Hospital at Sion. Patient was still in coma. Eventually she was shifted home with the hope that she might regain consciousness in a homely atmosphere. She is a living vegetable and still under medical treatment. It was alleged that excess dose of anesthesia caused hypoxia of the brain leading to brain death. It was further contended that the anaesthetist did not maintain an airway which is mandatory, whereas it was done with endotracheal tube. Complainant prayed for a compensation of Rs. ten lakhs.
Reasons:
O.P No.2 was talking to the patient while the operation was being performed at which time the patient was alert and conscious. There were no signs of adverse effects of anesthesia on pulse and B.P. To the patient's query she was informed that she has delivered a son and she was found happy. While the uterus was being stitched, after checking, Calmpose 5mg was given in diluted distilled water. Suddenly it was noted that the pulse had disappeared and B.P not recordable.
An affidavit filed by Dr. Diwakar Patkar has opined that all normal norms and steps of surgery were followed and there were no dangerous mishaps during this operation. The phenomenon of cardiac arrest is a known complication and that could take place inspire of all adequate precautions taken.
Lastly the Commission has generally observed that the patients have a tendency to blow out of proportion the grievance against the doctors. When the patient does not recover, the patient presumes that the doctor is responsible for his ill health.
4. Code of Medical ethics and 'right to lifer a fundamental right:
Dr. Tokugha Yepthomi V/s Apollo Hospital Enterprises Ltd. & Anr. III(1998) CPJ 12 (SC).
Brief facts of the case:
The Appellant after obtaining MBBS degree from Jawaharlal Institute of Post Graduate Medical Education and Research, Chandigarh, completed his internship and junior residency at the same college. Later he joined the Nagaland State Health services as Assistant Surgeon Grade -1. One Itokhu Yepthomi who was ailing from a disease that was provisionally diagnosed as Aortic Aneurysm was advised to go to the Apollo Hospital at Madras and the Appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment. The appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the results showed that appellant's blood group was HIV(+ve). In August, 1995 the Appellant proposed marriage to one Ms. Akali which was accepted and the marriage was proposed to be held on December 12th 1995. But the marriage was called off on the ground of blood test conducted at the Respondent's Hospital in which the Appellant was found to be HIV(+ve). Since the marriage had been settled but was subsequently called off, several people including members of the Appellant's family and persons belonging to his community became aware of Appellants HIV (+) status. This resulted in severe criticism of the Appellant and he was ostracised by the
community. The Appellant left Kohima (Nagaland) and residing in Madras.
The Appellant then approached the National Commission for damages against the respondents, on the ground that the information, which was required to be kept secret under medical ethics, was disclosed illegally and therefore the respondents were liable to pay damages. The Commission dismissed the Petition on the ground that the Appellant may seek his remedy in Civil Court.
Learned Counsel for the Appellant has vehemently contended that the principle of 'duty of care' as applicable to persons in medical profession, includes duty to maintain confidentiality and since this duty was violated bv the respondents, they are liable for damages to the appellant.
It was held by the Hon'ble Supreme Court that as a human being, As. Akali is entitled to all human rights as available to any other human being. This is apart from and in addition to the Fundamentals Rights available to her under Article 21, which guarantees "Right to life" to every citizen. This right would positively include the right to be told that a person, with whom she was proposed to be married, was a victim of a deadly disease, which was sexually communicable. Since right to life includes right to lead a healthy life, the respondents by their disclosure that the Appellant was HIT (+) cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover where there is a clash of two fundamental rights, as in the instant case namely, Appellant's right to privacy as part of right to life and ~Is.Akali's right to lead healthy life which is her fundamental right under Article 21, the right which would advance public morality or public interest, would alone be enforced through the process of Court for the reason that moral considerations cannot be kept at bay and the judges ,are not expected to sit as mute structures of clay in the Courtroom but have to be sensitive in the sense that they must keep their finders firmly upon the pulse of the accepted morality of the day.
It was further held that the Code of Medical Ethics carves out an exception to the rule of confidentiality and permits disclosure in the circumstances enumerated above under which public interest would override the duty of confidentiality, particularly where there is an immediate future health risk to others.
5. Professional ethics vis a vis Commission charged for CT and MRI Scan etc.
An Enquiry was conducted by the Indian Medical Association on the allegation that certain doctors take commission for CT, MRI scans.
In an Indian Express report from Thiruvananthapuram dated September 20, 1998, in its issue of 21.09.98 it has been stated that the Ethics Committee of the Indian Medical Association headed by Dr. K. Mohan Kumar, has come out strongly against doctors accepting commissions for referring patients to CT scan centers.
Many scan machine owners told the Committee that they were forced to pay commission out of fear that doctors might stop referring cases to them. The doctors charge the commission as 'IC' Interpretation charged. While thousands of Xrays are taken at these centers, except for a few doctors, none demanded for "interpretation charges".
The committee pointed out that X-rays and scans were part of investigations and the doctors who prescribed them should be able to read them without charging a fee on it.
It said that the charges levied from patients ranged from 30% to 50% of the scan charges. The committee said that this is nothing short of deceiving a patient who came to a doctor with utmost trust and belief that he or she would get relief from his/ her ailments. The doctors could claim their consultation fees, but not a commission on an investigation that they have prescribed. The ethics committee further said that both doctors and the scan centers were equally responsible for this corrupt practice. However now the public was becoming aware of the commission system and was annoyed and angry at this malpractice. Commission has warned the doctors, holding that acceptance of commission is highly unethical and amounts to malpractice.
While the National Commission agreed with the observation of the State Commission that fees paid for operation also includes post operative care, the same was held to be the duty of the concerned institution and not that of the private doctor. The National Commission reversed the decision of the State Commission, Maharashtra in B.S Hedge v/s Dr. S. Bhattacharya and Cross Appeal, 1994(2) CPR 61 (NC), awarding compensation on the grounds that the doctor acted negligently in performing the operation and rendering inadequate post operative care and treatment, holding that there was no evidence of deficiency in service on the part of Opposite Party either in performing the operation or rendering adequate care and treatment.
Hon'ble Commission further observed as follows:
"As rightly observed by the State Commission, how much to charge as fees for medical services is the choice of the medical practitioner, even though it may be excessive, unreasonable and unjustifiable.”
Further it was held
"The demand and acceptance of an exorbitant fee cannot be deemed to be deficiency in service."
Thus it is now established that adjudication of claims against medical professionals has to be based on expert opinion/evidence and should be circumspect so that false and vexatious complaints are not filed merely to harass the doctors who provide a very important service to the community.
Special Circumstances:
1. Where a patient suffered a heart attack when a minor operation was being performed, the same does not constitute deficiency in service rendered.
In Sethuraman Subramaniam Iyer (Applicant) v/s.Triveni Nursing Home & Anr. I(1998) CPJ 10 (NC), the complainant alleged medical negligence and deficiency in service on the part of Respondents. Complainants' wife, who was suffering from sinusitis, was advised a minor operation. Before she was operated, she suffered a massive heart attack and died.
State Commission dismissed the complaint based on operation notes. Appellant has contended that operation notes were fabricated and were prepared after the death of the Complainant's wife. The National Commission held as follows: 'In our view, the State Commission was right in holding that there was no negligence on the part of the Respondent. The State Commission rightly analysed and appreciated the material placed on record. The State Commission arrived at the finding after taking into consideration the totality of the circumstances. No case is made out by the appellant for interference with the order passed by the State Commission.
2. Where Medical Negligence was not proved:
State Commission Maharashtra upheld the dismissal of a complaint by District Forum Sangli in F.A No.142/95 in the matter of KASHIRAM BHIMRAO KAMBLE V/S DR. UDAY A. PATIL AND ANR, and held as follows:
"We feel that the detailed discussions of the circumstances made by the District Forum calls for no interference. There is no negligence on the part of the Respondents. Of course it is unfortunate that complainant has lost his wife who was around 45 years of age. But all the same, no fault could be found or negligence could be attributed to the Respondents. We are therefore unable to sustain the claim of the Complainant and dismiss the appeal with, however, no order as to cost."
Brief Facts Of the case:
Complainant and his wife had been regular patients of Dr. Kulkarni. Dr. Kulkarni never saw or witnessed any allergy to any antibiotics in the case of Kasturi, wife of the appellant. Therefore Dr. Kulkarni had no reasons to suspect that ampicillin will cause her allergy. Dr. Patil is the eve surgeon who prescribed medicines for eye treatment. Dr. Kulkarni was careful to engage the services of Dr. Naik, dermatologist. Kasturi w as taken to Walness hospital on 1.9.94 for further treatment of Steven Johnson Syndrome (loss of skin). She was there for 4 days and died on 5.9.94 and the cause of the death was Septicemia due to 75% skin loss due to drug reaction and this is known as 'Steven Johnson Syndrome.'
Reasons:
Both the doctors were not aware of Kasturi's allergy to penicillin or other allied medicines. But all the sane, Kasturi had improved in the hospital of Dr. Kulkarni. The appellant took her away to Walness hospital without justifiable cause. Apart from that, it can be gathered from the evidence of Dr. Shahpurkar, Dr. Chadda and Dr. Tekale that treatment given to Kasturi in the hospital of Dr. Kulkarni was proper in given circumstances of the case. Now in this matter, we must observe that Dr. Dewed who was a member of the District Forum has rather contributed his original thought.
Dr Dewan has opined that under the medical ethics, there is absolutely no duty to refer or consult the experts except where the patient requests the referral or the consultation in doubtful or difficult case/s or if the quality of care and management can be conceivably enhanced by referral or consultation. He also stated that the Steven Johnson Syndrome is a self-limiting disease and rarely involves several mucous membranes and internal organs producing a major syndrome.
Therefore as the deceased was making satisfactory progress the patient should not have been removed to another hospital. Therefore it is difficult to conclude that either of the respondents was responsible for the death of Kasturi.
3. The fact that patient has not recovered does not by itself prove Medical Negligence:
The State Commission, MvIaharashtra in SMT. NIRMALA R PARAB V/S DR. KALPNA DESAI & ORS, COMPLAINT NO. 87/92 (facts of this case have been discussed in the previous chapter) dismissed the Complaint by an elaborate order, brief particulars of which are given below:
This complaint was filed by Shri R.S. Parab, father of Firs. Ashwini Rane on behalf of his daughter, who is like a living vegetable and is unable to understand anything around her. Ashwini was under treatment of Or. Kalpana Desai from the 5th month of her pregnancy. Since she had a previous history of miscarriages, Dr. Desai had put sutures on the womb of the patient and informed that the same will be removed on 2nd May, 1990 as the expected date of delivery was 12th May, 1990. On 23.4.90 Ashwini delivered a baby boy for which a cesarean operation was necessary. The patient was told that she should be admitted to another hospital where equipment/facilities and emergency treatment were available as the blood pressure had suddenly fallen and so had the pulse. Thereafter she was transferred to another hospital. But as the patient could not afford the expenses she was again shifted to Lokmanya Tilak Hospital at Sion. Patient was still in coma. Eventually she was shifted home with the hope that she might regain consciousness in a homely atmosphere. She is a living vegetable and still under medical treatment. It was alleged that excess dose of anesthesia caused hypoxia of the brain leading to brain death. It was further contended that the anaesthetist did not maintain an airway which is mandatory, whereas it was done with endotracheal tube. Complainant prayed for a compensation of Rs. ten lakhs.
Reasons:
O.P No.2 was talking to the patient while the operation was being performed at which time the patient was alert and conscious. There were no signs of adverse effects of anesthesia on pulse and B.P. To the patient's query she was informed that she has delivered a son and she was found happy. While the uterus was being stitched, after checking, Calmpose 5mg was given in diluted distilled water. Suddenly it was noted that the pulse had disappeared and B.P not recordable.
An affidavit filed by Dr. Diwakar Patkar has opined that all normal norms and steps of surgery were followed and there were no dangerous mishaps during this operation. The phenomenon of cardiac arrest is a known complication and that could take place inspire of all adequate precautions taken.
Lastly the Commission has generally observed that the patients have a tendency to blow out of proportion the grievance against the doctors. When the patient does not recover, the patient presumes that the doctor is responsible for his ill health.
4. Code of Medical ethics and 'right to lifer a fundamental right:
Dr. Tokugha Yepthomi V/s Apollo Hospital Enterprises Ltd. & Anr. III(1998) CPJ 12 (SC).
Brief facts of the case:
The Appellant after obtaining MBBS degree from Jawaharlal Institute of Post Graduate Medical Education and Research, Chandigarh, completed his internship and junior residency at the same college. Later he joined the Nagaland State Health services as Assistant Surgeon Grade -1. One Itokhu Yepthomi who was ailing from a disease that was provisionally diagnosed as Aortic Aneurysm was advised to go to the Apollo Hospital at Madras and the Appellant was directed by the Government of Nagaland to accompany the said patient to Madras for treatment. The appellant and one Yehozhe who was the driver of Itokhu Yepthomi were asked to donate blood for the latter. Their blood samples were taken and the results showed that appellant's blood group was HIV(+ve). In August, 1995 the Appellant proposed marriage to one Ms. Akali which was accepted and the marriage was proposed to be held on December 12th 1995. But the marriage was called off on the ground of blood test conducted at the Respondent's Hospital in which the Appellant was found to be HIV(+ve). Since the marriage had been settled but was subsequently called off, several people including members of the Appellant's family and persons belonging to his community became aware of Appellants HIV (+) status. This resulted in severe criticism of the Appellant and he was ostracised by the
community. The Appellant left Kohima (Nagaland) and residing in Madras.
The Appellant then approached the National Commission for damages against the respondents, on the ground that the information, which was required to be kept secret under medical ethics, was disclosed illegally and therefore the respondents were liable to pay damages. The Commission dismissed the Petition on the ground that the Appellant may seek his remedy in Civil Court.
Learned Counsel for the Appellant has vehemently contended that the principle of 'duty of care' as applicable to persons in medical profession, includes duty to maintain confidentiality and since this duty was violated bv the respondents, they are liable for damages to the appellant.
It was held by the Hon'ble Supreme Court that as a human being, As. Akali is entitled to all human rights as available to any other human being. This is apart from and in addition to the Fundamentals Rights available to her under Article 21, which guarantees "Right to life" to every citizen. This right would positively include the right to be told that a person, with whom she was proposed to be married, was a victim of a deadly disease, which was sexually communicable. Since right to life includes right to lead a healthy life, the respondents by their disclosure that the Appellant was HIT (+) cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover where there is a clash of two fundamental rights, as in the instant case namely, Appellant's right to privacy as part of right to life and ~Is.Akali's right to lead healthy life which is her fundamental right under Article 21, the right which would advance public morality or public interest, would alone be enforced through the process of Court for the reason that moral considerations cannot be kept at bay and the judges ,are not expected to sit as mute structures of clay in the Courtroom but have to be sensitive in the sense that they must keep their finders firmly upon the pulse of the accepted morality of the day.
It was further held that the Code of Medical Ethics carves out an exception to the rule of confidentiality and permits disclosure in the circumstances enumerated above under which public interest would override the duty of confidentiality, particularly where there is an immediate future health risk to others.
5. Professional ethics vis a vis Commission charged for CT and MRI Scan etc.
An Enquiry was conducted by the Indian Medical Association on the allegation that certain doctors take commission for CT, MRI scans.
In an Indian Express report from Thiruvananthapuram dated September 20, 1998, in its issue of 21.09.98 it has been stated that the Ethics Committee of the Indian Medical Association headed by Dr. K. Mohan Kumar, has come out strongly against doctors accepting commissions for referring patients to CT scan centers.
Many scan machine owners told the Committee that they were forced to pay commission out of fear that doctors might stop referring cases to them. The doctors charge the commission as 'IC' Interpretation charged. While thousands of Xrays are taken at these centers, except for a few doctors, none demanded for "interpretation charges".
The committee pointed out that X-rays and scans were part of investigations and the doctors who prescribed them should be able to read them without charging a fee on it.
It said that the charges levied from patients ranged from 30% to 50% of the scan charges. The committee said that this is nothing short of deceiving a patient who came to a doctor with utmost trust and belief that he or she would get relief from his/ her ailments. The doctors could claim their consultation fees, but not a commission on an investigation that they have prescribed. The ethics committee further said that both doctors and the scan centers were equally responsible for this corrupt practice. However now the public was becoming aware of the commission system and was annoyed and angry at this malpractice. Commission has warned the doctors, holding that acceptance of commission is highly unethical and amounts to malpractice.
Chapter: 6.1.1 Duties of a Doctor
Duties of a Doctor
The duties of a Doctor when he undertakes the treatment of the patient have been described by the Supreme Court in Lakshman Joshi v/s Dr.Trimbak AIR 1969 SC 128, as follows:
The duties, which a Doctor owes to his patient, are clear. A person who holds himself out ready to give medical advice and treatment impliedlv undertakes that he is possessed of skill or knowledge for the purpose. Such a person, when consulted by a patient, owes him certain duties, namely a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient. The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.
Degree of care required to be exercised:
West i Bengal State Commission in Bhupendranath Das v/ s Maharaj Ramakrishna Seva Prathisthan & Ors., I(1998) CPJ 377 held that when a cataract operation is performed with reasonable care a doctor cannot be held guilty for after effects subsequently noticed.
Held: 'The general medical practice is not to release a patient until he is reasonably cured to merit a discharge, unless, of course the release is on a risk bond. If the operation is done with reasonable care but any after effect is subsequently noticed either due to absence of proper care or for any other reason, the doctor cannot be held guilty.'
Held further: 'Judging from all possible aspects of the case we come to the conclusion that the medical negligence brought against the doctor has not been proved in this case.'
The duties of a Doctor when he undertakes the treatment of the patient have been described by the Supreme Court in Lakshman Joshi v/s Dr.Trimbak AIR 1969 SC 128, as follows:
The duties, which a Doctor owes to his patient, are clear. A person who holds himself out ready to give medical advice and treatment impliedlv undertakes that he is possessed of skill or knowledge for the purpose. Such a person, when consulted by a patient, owes him certain duties, namely a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. A breach of any of these duties gives a right of action for negligence to the patient. The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care.
Degree of care required to be exercised:
West i Bengal State Commission in Bhupendranath Das v/ s Maharaj Ramakrishna Seva Prathisthan & Ors., I(1998) CPJ 377 held that when a cataract operation is performed with reasonable care a doctor cannot be held guilty for after effects subsequently noticed.
Held: 'The general medical practice is not to release a patient until he is reasonably cured to merit a discharge, unless, of course the release is on a risk bond. If the operation is done with reasonable care but any after effect is subsequently noticed either due to absence of proper care or for any other reason, the doctor cannot be held guilty.'
Held further: 'Judging from all possible aspects of the case we come to the conclusion that the medical negligence brought against the doctor has not been proved in this case.'
Chapter: 6 Duties Of A Doctor, Quantum Of Fee, Legal And Ethical Issues And Also Claims Against Doctors
Duties Of A Doctor, Quantum Of Fee, Legal And Ethical Issues And Also Claims Against Doctors
Objectives
After completing this chapter, you will be able to describe the duties of a doctor
Introduction
A medical practitioner ought to know how the courts view his duties, whether there are any constraints about the fee he may charge and other legal and ethical issues. This chapter briefly dwells on these important issues.
Objectives
After completing this chapter, you will be able to describe the duties of a doctor
Introduction
A medical practitioner ought to know how the courts view his duties, whether there are any constraints about the fee he may charge and other legal and ethical issues. This chapter briefly dwells on these important issues.
Chapter: 5.1 Degree of Care expected of Doctors
Degree of Care expected of Doctors; Frivolous and Vexatious Litigation
Case history of Prashanth S. Ohananka v. Nizam Institute of A Iedical Science in brief: Patient 20-year-old student of an Engineering College at the relevant hme. He was having fever on and off at the time of admission to Nizams Institute of Medical Sciences NIMS. Several investigations and a CT scan were done in another private hospital. Dr. Ashish Bhogani, a Chest Physician and T. B specialist, saw him in the OPD and recorded his impression as "Neurofibroma". He was advised ultrasound-guided biopsy. Routine Chest X ray revealed a mass in the left hemithorax. CT Scan of the chest showed a large mass in the left hemithorax with erosion of the ribs. When two attempts at fine needle aspiration cytology under ultrasound guidance and trucut biopsy under fluoroscopic guidance (FLAB did not give any conclusive evidence, the complainant was referred to Dr. U.N. Das for further management. As Dr. Das suggested one more attempt at FNAB, it was carried out. As even the 4th attempt did not show any lesion, Dr. Das advised excision biopsy by thoracotomy and referred the complainant to Dr. P.V.Satyanarayana, Cardio Thoracic Surgeon. A posterolateral thoracotomy on the left side and excision of tumour was done. As revealed by the Discharge Record, the patient developed acute onset of paraplegia immediately after surgery and "had flaccid paraplegia with a sensory level at D10. Bladder and bowel paralysis was present. Lower limb reflexes were absent. Ischemic myelopathy was considered which was substantiated by MRI scan of spinal cord. Patient was managed by steroids and nimodepine and was on continuous bladder drainage and later on intermittent self-catheterization. During hospitalization, he developed spasticity and flexor spasms and diffuse pain in lower limbs". Thus the Complainant had paralysis of the trunk and lower limbs and lost urine and stool sensation and control and sensibility of buttocks, urinary bladder, rectum, flexor aspects of the thighs, legs and feet. After discharge from hospital after 7 months of hospitalization, the discharge record noted that the patient requires continuous physiotherapy and nursing care. Due to the paraplegia and other complications, the Complainant's condition was precarious and he spent a considerable time in hospitals.
The Complainant alleged negligence and deficiency in service rendered by the Nizams Institute of Medical Sciences DIMS, Dr. P.V. Satyanarayana, Professor of Cardio Thoracic Surgery (O.P No.2), Dr. I. Dinaker Professor of Neurosurgery (O.P. No.3), Dr. U.N. Das, Professor of General Medicine (O.P No.4), Director of NIMS, O.P No.5, and Chief Secretary Govt. of A.P (O.P NO.6). The National Commission laid down the epoch making decision (per Dr. (Mrs.) Thamarajakshi) holding that performing of surgery for excision of biopsy (patient became paraplegic and was confined to wheel chair) without performing adequate pre-operative tests and without complete involvement of a neurosurgeon is a serious lapse on the part of hospital and doctors. Further it was held that, hospital and doctors are liable to pay a compensation of Rs. 14 lakhs to the Complainant.
1. The National Commission has in one of its landmark judgements, Brij Mohan Kher V/s Or. N. B. Banka and Anr. warned against the tendency of filing false and vexatious complaints against doctors as follows: "false and vexatious complaints lodged before the Consumer Forum with a view to harass and blackmail those who supply the goods and provide the services to the community, should be discouraged".
2. In the case of K. Jayaraman V/s Poona Hospital & Research Centre & Ors., 1994 (2) CPR 31 wherein complainant claimed compensation on the ground of delay of 1.15 hours, the National Commission dismissed the complaint as malafide, vexatious and frivolous and the complainant was directed to pay cost of Rs. 10000/- to the respondent hospital.
3. Shrimati Nirmala R. Parab & Anr. V/s Dr. Kalpana Oesai & Ors. III (19981 CPJ 66 (State Commission, Maharashtra).
Brief facts of the case:
The complainant is the father of Mrs. Ashwini Rane, and he has filed this complaint on behalf of his daughter who is like a living vegetable and is unable to understand anything around her. The case of the complainant is that his daughter was under the medical treatment and care of the opposite party No. 1, Dr. Kalpana Oesai from fifth month of her pregnancy, since she had a previous history of 3 miscarriages in the 7th month of pregnancy. The Opposite Party No. 1 had put sutures on the womb of the patient and informed that sutures would be removed on 2nd May 1990 and the approximate date of delivery would be 12th AIay 1990. On 23rd April 1990 Mrs. Ashwini Rane was admitted to the Clinic of O.P. No. 1 in Matunga, with labour pains. A caesarean operation was performed and Mrs. Rane was delivered of a baby boy. Within a span of half an hour, four doctors rushed into the operation theatre as the blood pressure had suddenly fallen and so had the pulse. The patient was shifted to another hospital where better equipment and facilities were available.
It was held by the Hon'ble State Commission of Maharashtra, that O.P. No. 1 immediately gave cardiac massage to the patient and rushed all the other doctors and cardiologists. Emergency treatment as expected under medical standard has been given and arranged to shift the patient to another hospital for better ICCU facilities. The Complainant alleged negligence on the part of the doctors. It was held that the doctors had taken necessary precautions and given the best possible treatment. There is no deficiency in service on the part of the doctors and the complain t was dismissed.
THIS CASE MAY ALSO SERVE AS A CASE STUDY OF A FRIVOLOUS AND VEXATIOUS COMPLAINT FILED AGAINST A DOCTOR
Consumer Disputes Redressal Commission, Maharashtra in the original complaint 51/96 in Bhimrao Kashinath Dhaware Complainant V/s Dr. Viraj Lokur, Sangli Opponents considered the allegation that a kidney of the patient was removed by the doctor while he was undergoing treatment for hydronephrosis.
Brief facts of the case are as follows:
Opponent is a reputed doctor, has a Masters Degree in Surgery (M.S.) and is practicing at Sangli for several years. When the complainant approached him, he was duly attended, he (complainants was operated after obtaining his consent, the operation and post operation period went off smoothly and he was discharged thereafter. Further, at the request of relatives of the complainant, professional fees were reduced drastically and a total sum of Rs. 1000/~comprising of Rs. 800 paid initially and Rs. 200/- paid at the time of discharge was only received from the complainant.
Complainant approached the Opponent Dr. for the first time on 17-3-1 994 as an O.P.D. patient with complaint of abdominal pain on right side since his childhood. He was found to have a mass in kidney. He Eras investigated on the same day. His blood and urine examination was normal. His left kidney was found to be normal. While his plain X-ray of the abdomen vvas normal, sonography test revealed that there was gross hydronephrosis on right side with the pelvi-ureteric junction obstructed by a thinned-out cortex.
"Hydronephrosis is a chronic disease with excess accumulation of water in the kidney. It is usually caused by the blockage of the ureter leading from the kidney. In early stages it may be possible to unblock the ureter, but in later stages removal of the kidney itself may be necessary".
Further developments in this case:
Complainant came back again on 4-4-1994 to the hospital of the opponent and was admitted on the same day. His sister and brother-in-law accompanied him. On admission, the patient and his relatives were given a clear idea about the findings and diagnosis and were explained in detail as to what procedure was going to be performed. The Complainant/Patient had signed in evidence of his having approved / consented to the proposed surgery to be carried out to remove the obstruction in the ureter to facilitate the free flow of urine. Operation of the complainant/patient for hydronephrosis was performed on the very next day. It was observed that there was a band across the P.IJ. Jn. (Pelvi-Ureteric Junctions that was causing obstruction to the flow of urine down the ureter. The operation and post operative period went off smoothly. The patient was discharged on 12-4-1994 and discharge card was handed over to the brother-in-law of the patient. Complainant revisited the Opponent doctor for follow up on 16-5-1994 and again on 26-5-1994 and was found to be having no complaints. He visited again on 30-8-1994 and requested a certificate, which was given to him on the same day.
Opponent doctor was shocked to receive a legal notice from the patient's advocate on 5-5-1995 alleging that his right kidney was removed and he came to know about it when he was treated at Civil Hospital, Solapur. At the request of the opponent doctor, the Complainant visited the clinic and underwent an ultrasonography test (USG), which clearly showed that the right kidney was present but it was smaller compared to the left kidney. One significant finding observed by the radiologist was that the Right Kidney was not visible from front Anterior surfaced but was visible only from the back Posterior surfaced. The Right Kidney had become small after the operation because prior to the operation (hydronephrosis) acute pressure on the cortex caused by the accumulated urine reduced and thinned its size. The subsequent operation resulted in discharge of urine and consequent reduction in the size of the right kidney.
A CAT Scan was performed at the instance of the Complainant himself on 3rd July 1996 when he approached another doctor, a Gen. Surgeon for confirmation whether his right kidney exists. The Report clearly showed the presence of the Right Kidney. It even showed that the said kidney functions to some extent. A Xerox copy of the said film was produced. A copy of the Report containing Complainant Dhavare's signature on the report was also produced.
As the Complainant did not succeed by pressurizing the Opponent doctor, he lodged a CRIMINAL COMPLAINT OF THEFT on the Opponent doctor at Miraj Police Station. Opponent doctor was called to the police station for interrogation when all relevant papers were produced in police station. The police department then admitted the complainant to Civil Hospital, Sangli, had a panel of doctors investigate him, and a report was submitted to the Superintendent of the Police of Sangli. Complainant did not stop his coercive tactics even at this stage but persisted with harassment of the doctor in the following manner:
a) Complainant continued with vilification of the Opponent doctor by publishing defamatory articles demanding arrest of the opponent doctor. Specimens of such articles enclosed clearly shows that an attempt was being made to damage the career and reputation of the Opponent doctor;
b) Complainant had written to Health Minister of Maharashtra as a result of which Deputy Director of Health Services, Dr. Dodwad, visited the hospital on 24-6-97 to ascertain the facts. Opponent doctor submitted the complete case history and documents to Dr. Dodwad who also obtained a copy of the report of panel of doctors at Civi 1 Hospital Sangli;
c) Complainant had also written to Maharashtra Medical Council and consequently the Opponent Doctor was asked by the Registrar, Medical Council vide letter dated 8-7-97 to submit all relevant details and as result of the same all the available reports were sent Maharashtra Medical Council;
d) Opponent doctor received threatening calls from time to time and false stories were periodically published in the local newspaper demanding the arrest of the doctor under ATROCITIES ACT alleging that a doctor belonging to a higher caste removed the kidney of a poor Dalit.
This case of the Opponent doctor was represented by the author of this module who submitted on behalf of Opponent doctor, that the allegation of the complainant that his affected right kidney was stolen was absolutely baseless and even medically absurd because as per the Kidney Transplantation Principles and Practice by Peter Morris -4th Edn. it is usually the left kidney and not the right kidney that is chosen. Also, an affected kidney can never be considered as medically fit for transplantation. Relevant extracts from the said report were annexed.
It was further submitted on behalf of the Opponent doctor that he was subjected to a great deal of mental torture and harassment on a continuous basis with a view to pressurizing him into giving in / yielding to the threats made by the complainant and his associates while demanding a huge amount of compensation amounting to Rs. 10 lakhs. When the Complainant found that the Opponent doctor was not giving into such blackmail, he reduced the demand to Rs. 7 lakhs.
Hon'ble State Commission did not find any merit in the complaint and dismissed the same for default of Complainant after hearing the advocate for Opponent doctor as the complainant failed to even appear before the commission in the matter.
Case history of Prashanth S. Ohananka v. Nizam Institute of A Iedical Science in brief: Patient 20-year-old student of an Engineering College at the relevant hme. He was having fever on and off at the time of admission to Nizams Institute of Medical Sciences NIMS. Several investigations and a CT scan were done in another private hospital. Dr. Ashish Bhogani, a Chest Physician and T. B specialist, saw him in the OPD and recorded his impression as "Neurofibroma". He was advised ultrasound-guided biopsy. Routine Chest X ray revealed a mass in the left hemithorax. CT Scan of the chest showed a large mass in the left hemithorax with erosion of the ribs. When two attempts at fine needle aspiration cytology under ultrasound guidance and trucut biopsy under fluoroscopic guidance (FLAB did not give any conclusive evidence, the complainant was referred to Dr. U.N. Das for further management. As Dr. Das suggested one more attempt at FNAB, it was carried out. As even the 4th attempt did not show any lesion, Dr. Das advised excision biopsy by thoracotomy and referred the complainant to Dr. P.V.Satyanarayana, Cardio Thoracic Surgeon. A posterolateral thoracotomy on the left side and excision of tumour was done. As revealed by the Discharge Record, the patient developed acute onset of paraplegia immediately after surgery and "had flaccid paraplegia with a sensory level at D10. Bladder and bowel paralysis was present. Lower limb reflexes were absent. Ischemic myelopathy was considered which was substantiated by MRI scan of spinal cord. Patient was managed by steroids and nimodepine and was on continuous bladder drainage and later on intermittent self-catheterization. During hospitalization, he developed spasticity and flexor spasms and diffuse pain in lower limbs". Thus the Complainant had paralysis of the trunk and lower limbs and lost urine and stool sensation and control and sensibility of buttocks, urinary bladder, rectum, flexor aspects of the thighs, legs and feet. After discharge from hospital after 7 months of hospitalization, the discharge record noted that the patient requires continuous physiotherapy and nursing care. Due to the paraplegia and other complications, the Complainant's condition was precarious and he spent a considerable time in hospitals.
The Complainant alleged negligence and deficiency in service rendered by the Nizams Institute of Medical Sciences DIMS, Dr. P.V. Satyanarayana, Professor of Cardio Thoracic Surgery (O.P No.2), Dr. I. Dinaker Professor of Neurosurgery (O.P. No.3), Dr. U.N. Das, Professor of General Medicine (O.P No.4), Director of NIMS, O.P No.5, and Chief Secretary Govt. of A.P (O.P NO.6). The National Commission laid down the epoch making decision (per Dr. (Mrs.) Thamarajakshi) holding that performing of surgery for excision of biopsy (patient became paraplegic and was confined to wheel chair) without performing adequate pre-operative tests and without complete involvement of a neurosurgeon is a serious lapse on the part of hospital and doctors. Further it was held that, hospital and doctors are liable to pay a compensation of Rs. 14 lakhs to the Complainant.
1. The National Commission has in one of its landmark judgements, Brij Mohan Kher V/s Or. N. B. Banka and Anr. warned against the tendency of filing false and vexatious complaints against doctors as follows: "false and vexatious complaints lodged before the Consumer Forum with a view to harass and blackmail those who supply the goods and provide the services to the community, should be discouraged".
2. In the case of K. Jayaraman V/s Poona Hospital & Research Centre & Ors., 1994 (2) CPR 31 wherein complainant claimed compensation on the ground of delay of 1.15 hours, the National Commission dismissed the complaint as malafide, vexatious and frivolous and the complainant was directed to pay cost of Rs. 10000/- to the respondent hospital.
3. Shrimati Nirmala R. Parab & Anr. V/s Dr. Kalpana Oesai & Ors. III (19981 CPJ 66 (State Commission, Maharashtra).
Brief facts of the case:
The complainant is the father of Mrs. Ashwini Rane, and he has filed this complaint on behalf of his daughter who is like a living vegetable and is unable to understand anything around her. The case of the complainant is that his daughter was under the medical treatment and care of the opposite party No. 1, Dr. Kalpana Oesai from fifth month of her pregnancy, since she had a previous history of 3 miscarriages in the 7th month of pregnancy. The Opposite Party No. 1 had put sutures on the womb of the patient and informed that sutures would be removed on 2nd May 1990 and the approximate date of delivery would be 12th AIay 1990. On 23rd April 1990 Mrs. Ashwini Rane was admitted to the Clinic of O.P. No. 1 in Matunga, with labour pains. A caesarean operation was performed and Mrs. Rane was delivered of a baby boy. Within a span of half an hour, four doctors rushed into the operation theatre as the blood pressure had suddenly fallen and so had the pulse. The patient was shifted to another hospital where better equipment and facilities were available.
It was held by the Hon'ble State Commission of Maharashtra, that O.P. No. 1 immediately gave cardiac massage to the patient and rushed all the other doctors and cardiologists. Emergency treatment as expected under medical standard has been given and arranged to shift the patient to another hospital for better ICCU facilities. The Complainant alleged negligence on the part of the doctors. It was held that the doctors had taken necessary precautions and given the best possible treatment. There is no deficiency in service on the part of the doctors and the complain t was dismissed.
THIS CASE MAY ALSO SERVE AS A CASE STUDY OF A FRIVOLOUS AND VEXATIOUS COMPLAINT FILED AGAINST A DOCTOR
Consumer Disputes Redressal Commission, Maharashtra in the original complaint 51/96 in Bhimrao Kashinath Dhaware Complainant V/s Dr. Viraj Lokur, Sangli Opponents considered the allegation that a kidney of the patient was removed by the doctor while he was undergoing treatment for hydronephrosis.
Brief facts of the case are as follows:
Opponent is a reputed doctor, has a Masters Degree in Surgery (M.S.) and is practicing at Sangli for several years. When the complainant approached him, he was duly attended, he (complainants was operated after obtaining his consent, the operation and post operation period went off smoothly and he was discharged thereafter. Further, at the request of relatives of the complainant, professional fees were reduced drastically and a total sum of Rs. 1000/~comprising of Rs. 800 paid initially and Rs. 200/- paid at the time of discharge was only received from the complainant.
Complainant approached the Opponent Dr. for the first time on 17-3-1 994 as an O.P.D. patient with complaint of abdominal pain on right side since his childhood. He was found to have a mass in kidney. He Eras investigated on the same day. His blood and urine examination was normal. His left kidney was found to be normal. While his plain X-ray of the abdomen vvas normal, sonography test revealed that there was gross hydronephrosis on right side with the pelvi-ureteric junction obstructed by a thinned-out cortex.
"Hydronephrosis is a chronic disease with excess accumulation of water in the kidney. It is usually caused by the blockage of the ureter leading from the kidney. In early stages it may be possible to unblock the ureter, but in later stages removal of the kidney itself may be necessary".
Further developments in this case:
Complainant came back again on 4-4-1994 to the hospital of the opponent and was admitted on the same day. His sister and brother-in-law accompanied him. On admission, the patient and his relatives were given a clear idea about the findings and diagnosis and were explained in detail as to what procedure was going to be performed. The Complainant/Patient had signed in evidence of his having approved / consented to the proposed surgery to be carried out to remove the obstruction in the ureter to facilitate the free flow of urine. Operation of the complainant/patient for hydronephrosis was performed on the very next day. It was observed that there was a band across the P.IJ. Jn. (Pelvi-Ureteric Junctions that was causing obstruction to the flow of urine down the ureter. The operation and post operative period went off smoothly. The patient was discharged on 12-4-1994 and discharge card was handed over to the brother-in-law of the patient. Complainant revisited the Opponent doctor for follow up on 16-5-1994 and again on 26-5-1994 and was found to be having no complaints. He visited again on 30-8-1994 and requested a certificate, which was given to him on the same day.
Opponent doctor was shocked to receive a legal notice from the patient's advocate on 5-5-1995 alleging that his right kidney was removed and he came to know about it when he was treated at Civil Hospital, Solapur. At the request of the opponent doctor, the Complainant visited the clinic and underwent an ultrasonography test (USG), which clearly showed that the right kidney was present but it was smaller compared to the left kidney. One significant finding observed by the radiologist was that the Right Kidney was not visible from front Anterior surfaced but was visible only from the back Posterior surfaced. The Right Kidney had become small after the operation because prior to the operation (hydronephrosis) acute pressure on the cortex caused by the accumulated urine reduced and thinned its size. The subsequent operation resulted in discharge of urine and consequent reduction in the size of the right kidney.
A CAT Scan was performed at the instance of the Complainant himself on 3rd July 1996 when he approached another doctor, a Gen. Surgeon for confirmation whether his right kidney exists. The Report clearly showed the presence of the Right Kidney. It even showed that the said kidney functions to some extent. A Xerox copy of the said film was produced. A copy of the Report containing Complainant Dhavare's signature on the report was also produced.
As the Complainant did not succeed by pressurizing the Opponent doctor, he lodged a CRIMINAL COMPLAINT OF THEFT on the Opponent doctor at Miraj Police Station. Opponent doctor was called to the police station for interrogation when all relevant papers were produced in police station. The police department then admitted the complainant to Civil Hospital, Sangli, had a panel of doctors investigate him, and a report was submitted to the Superintendent of the Police of Sangli. Complainant did not stop his coercive tactics even at this stage but persisted with harassment of the doctor in the following manner:
a) Complainant continued with vilification of the Opponent doctor by publishing defamatory articles demanding arrest of the opponent doctor. Specimens of such articles enclosed clearly shows that an attempt was being made to damage the career and reputation of the Opponent doctor;
b) Complainant had written to Health Minister of Maharashtra as a result of which Deputy Director of Health Services, Dr. Dodwad, visited the hospital on 24-6-97 to ascertain the facts. Opponent doctor submitted the complete case history and documents to Dr. Dodwad who also obtained a copy of the report of panel of doctors at Civi 1 Hospital Sangli;
c) Complainant had also written to Maharashtra Medical Council and consequently the Opponent Doctor was asked by the Registrar, Medical Council vide letter dated 8-7-97 to submit all relevant details and as result of the same all the available reports were sent Maharashtra Medical Council;
d) Opponent doctor received threatening calls from time to time and false stories were periodically published in the local newspaper demanding the arrest of the doctor under ATROCITIES ACT alleging that a doctor belonging to a higher caste removed the kidney of a poor Dalit.
This case of the Opponent doctor was represented by the author of this module who submitted on behalf of Opponent doctor, that the allegation of the complainant that his affected right kidney was stolen was absolutely baseless and even medically absurd because as per the Kidney Transplantation Principles and Practice by Peter Morris -4th Edn. it is usually the left kidney and not the right kidney that is chosen. Also, an affected kidney can never be considered as medically fit for transplantation. Relevant extracts from the said report were annexed.
It was further submitted on behalf of the Opponent doctor that he was subjected to a great deal of mental torture and harassment on a continuous basis with a view to pressurizing him into giving in / yielding to the threats made by the complainant and his associates while demanding a huge amount of compensation amounting to Rs. 10 lakhs. When the Complainant found that the Opponent doctor was not giving into such blackmail, he reduced the demand to Rs. 7 lakhs.
Hon'ble State Commission did not find any merit in the complaint and dismissed the same for default of Complainant after hearing the advocate for Opponent doctor as the complainant failed to even appear before the commission in the matter.
Chapter: 5 Degree Of Care Expected Of Doctors; Frivolous And Vexations Litigation
Degree Of Care Expected Of Doctors; Frivolous And Vexations Litigation
Objectives
The objective of this chapter is to apprise the doctors and students of Medicine of the legal position in regard to degree of care expected of them while discharging their duties. Similarly members of medical fraternity should be aware of their rights when a frivous and speculative complaint is filed against them.
Introduction
In a landmark decision in the matter of Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors, I(1999) CPJ 43(NC), the Hon'ble National Commission deliberated on important issues such as what constitutes medical negligence, duty of a hospital to engage a specialist when a specialist is available, vicarious liability of a hospital for omissions and commissions of doctors and staff, compensation for mental and physical torture etc.
Objectives
The objective of this chapter is to apprise the doctors and students of Medicine of the legal position in regard to degree of care expected of them while discharging their duties. Similarly members of medical fraternity should be aware of their rights when a frivous and speculative complaint is filed against them.
Introduction
In a landmark decision in the matter of Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors, I(1999) CPJ 43(NC), the Hon'ble National Commission deliberated on important issues such as what constitutes medical negligence, duty of a hospital to engage a specialist when a specialist is available, vicarious liability of a hospital for omissions and commissions of doctors and staff, compensation for mental and physical torture etc.
Chapter: 4.1.3 Brief facts of the case
Brief facts of the case were as follows:
A minor child, Harjot Ahluwalia was admitted by his parents to a nursing home, M/ s SPRING MEDOWS HOSPITAL, as he was suffering from fever. The Senior Consultant Pediatrician, Dr. Promila Bhutani, examined the patient and on the advice of the said doctor, the patient was admitted as an inpatient in the hospital. The doctor made the diagnosis that the patient was suffering from typhoid and intimated to the parents that medicines had been prescribed for treatment of typhoid fever.
On 30-12-93 at 9 a.m., Miss Bina Mathew, a nurse at the hospital asked the father of the minor patient to get an injection - inj. lariago to be administered intravenously to the minor patient. The father of the child purchased the medicine and gave it to the nurse, whereupon the nurse administered it to the minor patient. The patient immediately collapsed in the lap of his mother. The parents immediately called for help. Dr. Dhananjay told the parents that the child had suffered a cardiac arrest. Manual respiration was attempted using an oxygen cylinder. Though the child was kept alive on manual ventilator, the condition of the child showed no improvement. As in the course of treatment, the minor's platelet count fell, a blood transfusion was given, but still no improvement could be seen. Dr. Mehta (anaesthetist) advised that as the hospital did not have necessary facilities to manage the child, he should be shifted to an ICU equipped with an Auto Respirator. Accordingly, the child was admitted to the pediatric ICU of AIIMS on 3-1-94. Doctors in AIIMS examined the minor child thoroughly and informed the parents that the child was critical and even if he survived he would live only in a vegetable state as irreparable damage had been caused to his brain and there was no chance of reviving the damaged parts. The minor child was again admitted to the Appellant hospital but there was no improvement in the condition of the child.
Evidence: Oral and documentary evidence was produced.
Dr. J. S. Nanra and Dr. A. S. Ahluwalia were also examined before National Commission apart from other witnesses. The doctors testified that the child suffered a cardiac arrest on account of the medicine having been injected which led to brain damage. The National Commission came to the following conclusion that cause of such cardiac arrest was intravenous injection of Lariago of such high dose.
Dr. Dhananjay was negligent in performing his duty because instead of administering the injection himself as advised by Dr. Bhutani; he permitted the nurse to give injection.
There was clear dereliction of duty on the part of the nurse who was not even a qualified nurse and was not registered with any nursing council of any state. She stated that as the patient was earlier advised Lariago by Dr. Bhutani and so when the injection was advised she thought lariago injection should be given and accordingly asked father of child to get lariago injection and administered the same to the child. Thus the child suffered on account of negligence, error and omission on the part of nurse as well as Dr. Dhananjay in performing their professional duties and the hospital is responsible for the negligence of employees and is liable for the consequences.
There was considerable delay in reviving the heart of the minor child and on account of such delay, the brain of the minor child was damaged.
Following are the important observations of the Apex Court:
1. What kind of mistakes cannot be pardoned?
Very often in a claim of compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which would be tantamount to negligence cannot be pardoned.:
2. Whether a child and its parents are consumers under the Act?
Held: In the present case we are concerned with clause 9(ii) of sec. 2(1) (d). In the said clause a consumer means a person who hires or avails any service or induces any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken into hospital by his parents and the doctor treats a child, the parents would come within the definition of a consumer having hired the services. The definition clause is wide enough to include not only the person who hires the services but also the beneficiary of such services even if the beneficiary is other than the person who hires the services. The conclusion is irresistible that both the parents of the child as well as the child would be consumers within the meaning of Section 2(1) (d) (iii) of the Act and as such can claim compensation under the Act.
3. Whether delegation of responsibility by a doctor to his junior is negligence?
Held: Gross medical mistakes will always result in a finding of negligence. Use of wrong drugs or wrong gases during the course of anesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitor can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent when he delegates his responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly.
Comments of the National Commission on different schools of thought in medicine:
The observations of the National Commission in Dr. Subramanyam & Anr v/s Dr.. B. Krishna Rao & Anr. II (1996) CPJ 233 (NC) on the question of medical negligence are most illuminating as it involved a complaint by a well qualified doctor against a fellow professional who treated his wife by performing an endoscopic sclerotherapy. It is relevant to note that in this case the complainant doctor alleged that the moment the patient was admitted to the Nursing Home, there was total mismanagement to the extent of virtually throwing her into the jaws of death solely because of negligence and improper care rather than wrong treatment given to her by the first opposite party Dr. Rao. The complainant submitted that the slipshod, callous and negligent way in which the patient was treated led to her death.
A minor child, Harjot Ahluwalia was admitted by his parents to a nursing home, M/ s SPRING MEDOWS HOSPITAL, as he was suffering from fever. The Senior Consultant Pediatrician, Dr. Promila Bhutani, examined the patient and on the advice of the said doctor, the patient was admitted as an inpatient in the hospital. The doctor made the diagnosis that the patient was suffering from typhoid and intimated to the parents that medicines had been prescribed for treatment of typhoid fever.
On 30-12-93 at 9 a.m., Miss Bina Mathew, a nurse at the hospital asked the father of the minor patient to get an injection - inj. lariago to be administered intravenously to the minor patient. The father of the child purchased the medicine and gave it to the nurse, whereupon the nurse administered it to the minor patient. The patient immediately collapsed in the lap of his mother. The parents immediately called for help. Dr. Dhananjay told the parents that the child had suffered a cardiac arrest. Manual respiration was attempted using an oxygen cylinder. Though the child was kept alive on manual ventilator, the condition of the child showed no improvement. As in the course of treatment, the minor's platelet count fell, a blood transfusion was given, but still no improvement could be seen. Dr. Mehta (anaesthetist) advised that as the hospital did not have necessary facilities to manage the child, he should be shifted to an ICU equipped with an Auto Respirator. Accordingly, the child was admitted to the pediatric ICU of AIIMS on 3-1-94. Doctors in AIIMS examined the minor child thoroughly and informed the parents that the child was critical and even if he survived he would live only in a vegetable state as irreparable damage had been caused to his brain and there was no chance of reviving the damaged parts. The minor child was again admitted to the Appellant hospital but there was no improvement in the condition of the child.
Evidence: Oral and documentary evidence was produced.
Dr. J. S. Nanra and Dr. A. S. Ahluwalia were also examined before National Commission apart from other witnesses. The doctors testified that the child suffered a cardiac arrest on account of the medicine having been injected which led to brain damage. The National Commission came to the following conclusion that cause of such cardiac arrest was intravenous injection of Lariago of such high dose.
Dr. Dhananjay was negligent in performing his duty because instead of administering the injection himself as advised by Dr. Bhutani; he permitted the nurse to give injection.
There was clear dereliction of duty on the part of the nurse who was not even a qualified nurse and was not registered with any nursing council of any state. She stated that as the patient was earlier advised Lariago by Dr. Bhutani and so when the injection was advised she thought lariago injection should be given and accordingly asked father of child to get lariago injection and administered the same to the child. Thus the child suffered on account of negligence, error and omission on the part of nurse as well as Dr. Dhananjay in performing their professional duties and the hospital is responsible for the negligence of employees and is liable for the consequences.
There was considerable delay in reviving the heart of the minor child and on account of such delay, the brain of the minor child was damaged.
Following are the important observations of the Apex Court:
1. What kind of mistakes cannot be pardoned?
Very often in a claim of compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake which under certain circumstances may be excusable, but a mistake which would be tantamount to negligence cannot be pardoned.:
2. Whether a child and its parents are consumers under the Act?
Held: In the present case we are concerned with clause 9(ii) of sec. 2(1) (d). In the said clause a consumer means a person who hires or avails any service or induces any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken into hospital by his parents and the doctor treats a child, the parents would come within the definition of a consumer having hired the services. The definition clause is wide enough to include not only the person who hires the services but also the beneficiary of such services even if the beneficiary is other than the person who hires the services. The conclusion is irresistible that both the parents of the child as well as the child would be consumers within the meaning of Section 2(1) (d) (iii) of the Act and as such can claim compensation under the Act.
3. Whether delegation of responsibility by a doctor to his junior is negligence?
Held: Gross medical mistakes will always result in a finding of negligence. Use of wrong drugs or wrong gases during the course of anesthesia will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitor can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent when he delegates his responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly.
Comments of the National Commission on different schools of thought in medicine:
The observations of the National Commission in Dr. Subramanyam & Anr v/s Dr.. B. Krishna Rao & Anr. II (1996) CPJ 233 (NC) on the question of medical negligence are most illuminating as it involved a complaint by a well qualified doctor against a fellow professional who treated his wife by performing an endoscopic sclerotherapy. It is relevant to note that in this case the complainant doctor alleged that the moment the patient was admitted to the Nursing Home, there was total mismanagement to the extent of virtually throwing her into the jaws of death solely because of negligence and improper care rather than wrong treatment given to her by the first opposite party Dr. Rao. The complainant submitted that the slipshod, callous and negligent way in which the patient was treated led to her death.
Chapter: 4.1.2 What Constitutes Medical Negligence
What Constitutes Medical Negligence:
While deliberating on the absence of a basic qualification for a homeopathic doctor to practice a system of medicine (allopathy) in Poonam Verma V/s Ashwin Patel & Ors., (1996) CPS, (SCAN. Supreme Court held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed.
The National Commission has laid down the guiding principles in Dr. Sr. Louie and Anr. V/s Smt Kannolil Pathumma & Anr^f III-1993 (1) CPR 422 (NC) as follows:
"For establishing negligence in diagnosis or treatment on the part of a doctor, the test is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of it, acting with reasonable care."
In this order, the National Commission also took strong objection to the fact that Dr. Louie has falsely and misleadingly shown herself to the public as M.D. though schwas orgy M. D. Freiburg, a German Degree which is equivalent to M.B.B.S. in India.
After considering the statement of witnesses, the State Commission came to the opinion that the conduct of Dr. Sr. Louie amounted to negligence. The National Commission upheld this finding of the State Commission of Kerala.
In this case (relating to the delivery of a lady with previous history of complications the National Commission has observed as follows:
"Dr. Louie ought to have attended Aysha after doing Artificial Rupture Of Membranes (AROM). Had she been present, she would have noticed the first sign of the complication occurring in Aysha and could have taken some steps, if possible, to stop further deterioration of the condition of Aysha and perhaps the life of Aysha and her baby could have been saved. Admittedly the child in the womb of Aysha was a big one as was disclosed by the X-ray examination. In the condition in which Aysha was, the baby had to be taken out from the womb of Aysha immediately; otherwise it would have died inside the womb. It appears that in such emergency there was every possibility of a vacuum slip. Dr. Abdul Salam, who treated the baby after it was removed from hospital has stated that the child had injuries due to vacuum slip; and of course, the baby was delivered in such asphyxiated conditions that it was not expected to remain alive."
In Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112 where a patient died a day after surgery and the relatives found a pair of scissors utilized by the surgeon while collecting the last remains, a compensation of Rs. 1.20 lakhs was awarded by the State Commission, Chandigarh on the grounds that negligence was writ large on record in handling the case though it was argued that arterial forceps and sponges were left behind in an attempt to save the life of the patient and (the said things were to be later removed, but could not be done as the patient died) the same did not contribute to patient's death.
A LANDMARK DECISION OF THE SUPREME COURT ON ME1:)ICAL NEGLIGENCE
In a landmark case, on 5.5.1998, the Supreme Court of India confirmed the order of the National Commission, which awarded a compensation of Rs. 12.5 lacs (out of the said amount Rs. 12,37,500/- is to be paid by the Insurance Company) as compensation to a minor and Rs. 5 lacs as compensation to the parents. The case, which attracted a great deal of public attention was:
SPRING MEDOWS HOSPITAL & ANR. ETC., (Appellants)
V/s
HARJOL AHLUWALIA THRO' K. S. AHLUWALIA & ANR. III (1998) CPJ 1 (SC) (Respondents)
While deliberating on the absence of a basic qualification for a homeopathic doctor to practice a system of medicine (allopathy) in Poonam Verma V/s Ashwin Patel & Ors., (1996) CPS, (SCAN. Supreme Court held that a person who does not have knowledge of a particular system of medicine but practices in that system is a quack. Where a person is guilty of negligence per se, no further proof is needed.
The National Commission has laid down the guiding principles in Dr. Sr. Louie and Anr. V/s Smt Kannolil Pathumma & Anr^f III-1993 (1) CPR 422 (NC) as follows:
"For establishing negligence in diagnosis or treatment on the part of a doctor, the test is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of it, acting with reasonable care."
In this order, the National Commission also took strong objection to the fact that Dr. Louie has falsely and misleadingly shown herself to the public as M.D. though schwas orgy M. D. Freiburg, a German Degree which is equivalent to M.B.B.S. in India.
After considering the statement of witnesses, the State Commission came to the opinion that the conduct of Dr. Sr. Louie amounted to negligence. The National Commission upheld this finding of the State Commission of Kerala.
In this case (relating to the delivery of a lady with previous history of complications the National Commission has observed as follows:
"Dr. Louie ought to have attended Aysha after doing Artificial Rupture Of Membranes (AROM). Had she been present, she would have noticed the first sign of the complication occurring in Aysha and could have taken some steps, if possible, to stop further deterioration of the condition of Aysha and perhaps the life of Aysha and her baby could have been saved. Admittedly the child in the womb of Aysha was a big one as was disclosed by the X-ray examination. In the condition in which Aysha was, the baby had to be taken out from the womb of Aysha immediately; otherwise it would have died inside the womb. It appears that in such emergency there was every possibility of a vacuum slip. Dr. Abdul Salam, who treated the baby after it was removed from hospital has stated that the child had injuries due to vacuum slip; and of course, the baby was delivered in such asphyxiated conditions that it was not expected to remain alive."
In Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112 where a patient died a day after surgery and the relatives found a pair of scissors utilized by the surgeon while collecting the last remains, a compensation of Rs. 1.20 lakhs was awarded by the State Commission, Chandigarh on the grounds that negligence was writ large on record in handling the case though it was argued that arterial forceps and sponges were left behind in an attempt to save the life of the patient and (the said things were to be later removed, but could not be done as the patient died) the same did not contribute to patient's death.
A LANDMARK DECISION OF THE SUPREME COURT ON ME1:)ICAL NEGLIGENCE
In a landmark case, on 5.5.1998, the Supreme Court of India confirmed the order of the National Commission, which awarded a compensation of Rs. 12.5 lacs (out of the said amount Rs. 12,37,500/- is to be paid by the Insurance Company) as compensation to a minor and Rs. 5 lacs as compensation to the parents. The case, which attracted a great deal of public attention was:
SPRING MEDOWS HOSPITAL & ANR. ETC., (Appellants)
V/s
HARJOL AHLUWALIA THRO' K. S. AHLUWALIA & ANR. III (1998) CPJ 1 (SC) (Respondents)
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.
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.
Chapter: 4 Consumer Jurisdiction Of Medical Negligence Related Cases
Consumer Jurisdiction Of Medical Negligence Related Cases
Objectives
Consumer jurisdiction of medical negligence related cases was a subject matter of great controversy and was agitated upto the level of Supreme Court. The objective of this chapter is to apprise the medical men of this saga and to say that Medical profession is now unequivocally covered within the jurisdiction of COPA.
Introduction
It is relevant to note that coverage of hospital and profession was never in doubt so far as redressal agencies constituted under the Act concerned. An order passed by National Commission in M/s. Cosmopoitan Hospital And Anr v/s Smt Vassanta I' Nair and others, V-VI-1992 (1) CPR 820 (NC) says in unequivocal terms as follows:
1) The activity of providing medical assistance for payment carried on by hospitals and members of medical profession falls within the scope of the expression service as defined in Section 2(1) (0) of the Consumer Protection Act and in the event of any deficiency in the performance of such service the aggrieved party can invoke remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction.
2) The expression 'consumer' defined in Section 2(1)(d) of the Consumer Protection Act includes legal representatives of the deceased consumers.
Objectives
Consumer jurisdiction of medical negligence related cases was a subject matter of great controversy and was agitated upto the level of Supreme Court. The objective of this chapter is to apprise the medical men of this saga and to say that Medical profession is now unequivocally covered within the jurisdiction of COPA.
Introduction
It is relevant to note that coverage of hospital and profession was never in doubt so far as redressal agencies constituted under the Act concerned. An order passed by National Commission in M/s. Cosmopoitan Hospital And Anr v/s Smt Vassanta I' Nair and others, V-VI-1992 (1) CPR 820 (NC) says in unequivocal terms as follows:
1) The activity of providing medical assistance for payment carried on by hospitals and members of medical profession falls within the scope of the expression service as defined in Section 2(1) (0) of the Consumer Protection Act and in the event of any deficiency in the performance of such service the aggrieved party can invoke remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction.
2) The expression 'consumer' defined in Section 2(1)(d) of the Consumer Protection Act includes legal representatives of the deceased consumers.
Chapter: 3.1.10 Supreme Court on Housing Construction and related questions
Supreme Court on Housing Construction and related questions:
LUCKNOW DEVELOPMENT AUTHORITY V/S M.K.GUPTA, CIVIL APPEA L NO. 6237 OF 1990
Q.1. Whether statutory authorities are amenable to Consumer Protection Act 1986?
HELD: YES. Any attempt to exclude services offered by statutory or official bodies to the common man would be against the provision of the Act and the spirit behind it.
Q.2. Whether having a construction or building activity carried on by a private or statutory body was 'Service' within the meaning of Consumer Protection Act prior to its amendment?
HELD: YES. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and form a housing scheme, it, while performing its statutory duty, renders service to society in general and individuals in particular The provisions of the Act, namely Lucknow Development Act, Delhi Development Act or Bangalore Development Act, clearly provides for preparing plans, development of land, and framing of schemes etc. therefore if such authorities undertake to construct buildings or allot houses or building sites to citizens of states, then it amounts to rendering of service. The 'work facility' was already there in the definition of 'Service 'even prior to the 1993 amendment.
Q.3. Whether jurisdiction of Consumer Fora is ousted because the service is related to immovable property?
HELD: NO. Whether the Respondents were justified in their complaint and if such 'act' or omission could be held to be denial of service in the Act should be examined. But the jurisdiction of the commission could not be ousted because, even though it was service, it related to immovable property.
Q.4. Consumer Protection Act, 1986 is a beneficiary legislation.
HELD: In fact the law meets the long felt necessity of protecting the common man from such wrongs for which the remedy under the ordinary law for various reasons has became illusory. Various legislations and regulations permitting the state to intervene and protect the interest of the consumer have became a heaven for the unscrupulous and as the enforcement machinery either does not move or it moves ineffectively and inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting the welfare of society by enabling consumers to participate directly in the market economy. It attempts to remove the helplessness of consumers which they face against powerful businesses, described as 'Network of Rackets' or society in which 'PRODUCERS HAVE SECURED POWER to ROB THE REST" and the might of public bodies which are degenerating into store houses of inaction where papers do not move from one desk to another as matter of duty and responsibility but for extraneous consideration; leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.
Q.5 Who is a consumer?
HELD: The word consumer is a comprehensive expression. It extends from a person who buys any commodity to consume either an eatable o otherwise from a shop, business house, corporation or store, fair price shop or to use private or public services. In the Oxford Dictionary a consumer is defined as a purchaser of goods or services. In Black's Law dictionary it is explained to mean who consumes. The 'Act' defines CONSUMER as under:
2(1) (d) CONSUMER means any person who:
Buys any goods for consideration which has been paid or promised I partly paid or partly promised, or under any system of deferre payment and includes any user of such goods for consideration paid promised or partly paid and partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose
b) Hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails the services for the consideration paid or promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person.
EXPLANATION:
For the purpose of sub-clause (I) 'Commercial Purpose' does not include use by a consumer of goods bought and used by means of self-employment.
Q.6 What is the meaning of the word 'Service'?
HELD: The concept of service is very wide. How it should be understood and what it means depends on the context in which it is used. It may mean any benefit or any act promoting interest or happiness.
Sec.2 (o) of the 'Act' defines 'Service' as follows:
"Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or made a contract of personal service."
The clause is very wide and extends to any or all actual or potential users. No distinction can be made on the ground of private or public or statutory bodies.
Q.7 Whether compensation can be awarded both in respect of value of goods and services and also in respect of injustice suffered by the complainant for harassment and agony. Whether the said amount should be realized from the statutory authority or from those who were responsible for it?
HELD: The Commission or the Forum is entitled to award not only the value of goods or services but also to compensate a consumer for injustice suffered by him. It may constitute actual loss and may extend to physical, mental or even emotional suffering. When the court directs payment of compensation or damages against the State, the ultimate sufferer is the common man. It is the taxpayer's money that is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with the law. It is therefore necessary that when the commission is satisfied that a complainant is entitled for compensation for harassment or mental agony or oppression (after careful scrutiny), should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behavior.
While dismissing all the appeals filed by the Lucknow Division Authority, the Supreme Court directed that the amount of compensation of Rs.10,000/- awarded by the Commission for mental harassment shall be recovered from such officers proportionately from their salary. The Supreme Court awarded a cost of Rs. 5,000/-to the contesting respondents, for each case. However, the aforesaid legal position being laid down by National Commission was reviewed by the apex court in a landmark full bench decision DR. J. J MERCHANT & ORS. v. SHRINATH CHATURVEDI 2002(4), ALL MR 605 (S.C). The apex Court not only held that Consumer Redressal Agencies are capable of and are entitled to decide complicated cases but also that long pendency of a case is no good ground for rejecting a complaint with a direction to approach civil court.
LUCKNOW DEVELOPMENT AUTHORITY V/S M.K.GUPTA, CIVIL APPEA L NO. 6237 OF 1990
Q.1. Whether statutory authorities are amenable to Consumer Protection Act 1986?
HELD: YES. Any attempt to exclude services offered by statutory or official bodies to the common man would be against the provision of the Act and the spirit behind it.
Q.2. Whether having a construction or building activity carried on by a private or statutory body was 'Service' within the meaning of Consumer Protection Act prior to its amendment?
HELD: YES. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and form a housing scheme, it, while performing its statutory duty, renders service to society in general and individuals in particular The provisions of the Act, namely Lucknow Development Act, Delhi Development Act or Bangalore Development Act, clearly provides for preparing plans, development of land, and framing of schemes etc. therefore if such authorities undertake to construct buildings or allot houses or building sites to citizens of states, then it amounts to rendering of service. The 'work facility' was already there in the definition of 'Service 'even prior to the 1993 amendment.
Q.3. Whether jurisdiction of Consumer Fora is ousted because the service is related to immovable property?
HELD: NO. Whether the Respondents were justified in their complaint and if such 'act' or omission could be held to be denial of service in the Act should be examined. But the jurisdiction of the commission could not be ousted because, even though it was service, it related to immovable property.
Q.4. Consumer Protection Act, 1986 is a beneficiary legislation.
HELD: In fact the law meets the long felt necessity of protecting the common man from such wrongs for which the remedy under the ordinary law for various reasons has became illusory. Various legislations and regulations permitting the state to intervene and protect the interest of the consumer have became a heaven for the unscrupulous and as the enforcement machinery either does not move or it moves ineffectively and inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting the welfare of society by enabling consumers to participate directly in the market economy. It attempts to remove the helplessness of consumers which they face against powerful businesses, described as 'Network of Rackets' or society in which 'PRODUCERS HAVE SECURED POWER to ROB THE REST" and the might of public bodies which are degenerating into store houses of inaction where papers do not move from one desk to another as matter of duty and responsibility but for extraneous consideration; leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.
Q.5 Who is a consumer?
HELD: The word consumer is a comprehensive expression. It extends from a person who buys any commodity to consume either an eatable o otherwise from a shop, business house, corporation or store, fair price shop or to use private or public services. In the Oxford Dictionary a consumer is defined as a purchaser of goods or services. In Black's Law dictionary it is explained to mean who consumes. The 'Act' defines CONSUMER as under:
2(1) (d) CONSUMER means any person who:
Buys any goods for consideration which has been paid or promised I partly paid or partly promised, or under any system of deferre payment and includes any user of such goods for consideration paid promised or partly paid and partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose
b) Hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails the services for the consideration paid or promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person.
EXPLANATION:
For the purpose of sub-clause (I) 'Commercial Purpose' does not include use by a consumer of goods bought and used by means of self-employment.
Q.6 What is the meaning of the word 'Service'?
HELD: The concept of service is very wide. How it should be understood and what it means depends on the context in which it is used. It may mean any benefit or any act promoting interest or happiness.
Sec.2 (o) of the 'Act' defines 'Service' as follows:
"Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or made a contract of personal service."
The clause is very wide and extends to any or all actual or potential users. No distinction can be made on the ground of private or public or statutory bodies.
Q.7 Whether compensation can be awarded both in respect of value of goods and services and also in respect of injustice suffered by the complainant for harassment and agony. Whether the said amount should be realized from the statutory authority or from those who were responsible for it?
HELD: The Commission or the Forum is entitled to award not only the value of goods or services but also to compensate a consumer for injustice suffered by him. It may constitute actual loss and may extend to physical, mental or even emotional suffering. When the court directs payment of compensation or damages against the State, the ultimate sufferer is the common man. It is the taxpayer's money that is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with the law. It is therefore necessary that when the commission is satisfied that a complainant is entitled for compensation for harassment or mental agony or oppression (after careful scrutiny), should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behavior.
While dismissing all the appeals filed by the Lucknow Division Authority, the Supreme Court directed that the amount of compensation of Rs.10,000/- awarded by the Commission for mental harassment shall be recovered from such officers proportionately from their salary. The Supreme Court awarded a cost of Rs. 5,000/-to the contesting respondents, for each case. However, the aforesaid legal position being laid down by National Commission was reviewed by the apex court in a landmark full bench decision DR. J. J MERCHANT & ORS. v. SHRINATH CHATURVEDI 2002(4), ALL MR 605 (S.C). The apex Court not only held that Consumer Redressal Agencies are capable of and are entitled to decide complicated cases but also that long pendency of a case is no good ground for rejecting a complaint with a direction to approach civil court.
Chapter: 3.1.9 Supreme Court on suppression of material facts
Supreme Court on suppression of material facts:
The Supreme Court in: MITHOOLAL NAYAK APPELLANT V/S.LIFE INSURANCE CORP. OF INDIA RESPONDENT:
Brief Facts:
A policy holder who had been treated a few months before submission of proposal for insurance of his life, for ailments such as anemia, shortness of breath and asthma not only failed to disclose in his answers to the questions put to him but also made a false statement to the effect that he had not been treated by any doctor for any such serious ailment.
HELD: JUDGED BY THE STANDARD LAID DOWN IN SECTION 17 OF CONTRACTS ACT, THE POLICY HOLDER WAS CLEARLY GUILTY OF FRAUDULENT SUPPRESSION OF MATERIAL FACTS WHEN HE MADE THESE STATEMENTS WHICH HE MUST HAVE KNOWN WERE DELIBERATELY FALSE AND HENCE THE POLICY ISSUED TO HIM RELYING ON THOSE STATEMENTS WAS VITIATED."
In a very emphatic and unequivocal order, National Commission, in NATIONAL INSURANCE CO. (APPELLANT) V/ S SURINDER LAL ARORA ( RESPONDENT) 1993 (3) CPR 452 (N.S.) held as follows:
"When the complainant suppressed material facts of his ailment in the proposal form while taking Mediclaim policy there is no deficiency in service in the insurance company repudiating the claim under the policy."
The Supreme Court in: MITHOOLAL NAYAK APPELLANT V/S.LIFE INSURANCE CORP. OF INDIA RESPONDENT:
Brief Facts:
A policy holder who had been treated a few months before submission of proposal for insurance of his life, for ailments such as anemia, shortness of breath and asthma not only failed to disclose in his answers to the questions put to him but also made a false statement to the effect that he had not been treated by any doctor for any such serious ailment.
HELD: JUDGED BY THE STANDARD LAID DOWN IN SECTION 17 OF CONTRACTS ACT, THE POLICY HOLDER WAS CLEARLY GUILTY OF FRAUDULENT SUPPRESSION OF MATERIAL FACTS WHEN HE MADE THESE STATEMENTS WHICH HE MUST HAVE KNOWN WERE DELIBERATELY FALSE AND HENCE THE POLICY ISSUED TO HIM RELYING ON THOSE STATEMENTS WAS VITIATED."
In a very emphatic and unequivocal order, National Commission, in NATIONAL INSURANCE CO. (APPELLANT) V/ S SURINDER LAL ARORA ( RESPONDENT) 1993 (3) CPR 452 (N.S.) held as follows:
"When the complainant suppressed material facts of his ailment in the proposal form while taking Mediclaim policy there is no deficiency in service in the insurance company repudiating the claim under the policy."
Chapter: 3.1.8 Consumer Jurisdiction of Insurance related claims
Consumer Jurisdiction of Insurance related claims:
"DEFICIENCY IN SERVICE" rendered by Insurance Company
The National Commission held in the case of UMEDILAL AGGRARWAL V/S UNITED INDIA INSURANCE CO.LTD.(1989) 3 COMP.LJ 143 (NC), II (1992) CPJ 451 (N.C.) as follows:
"DEFAULT OR NEGLIGENCE IN REGARD TO SETTLEMENT OF AN INSURANCE CLAIM WILL CONSTITUTE 'DEFICIENCY' IN SERVICE RENDERED BY THE INSURANCE COMPANY."
The above decision of the National Commission firmly established in principle that consumers affected by failure of Insurance Companies in providing service or carrying out its obligations would be entitled to approach the Consumer Court for an inexpensive and speedy red reseal.
National Commission further observed as follows:
"Having regard to the philosophy of the Consumer Protection Act, 1956, and its avowed object of providing cheap and speedy redressal to consumers affected by failure on the part of persons providing service for a consideration to properly carry out their obligations, we do not find it possible to hold that settlement of an insurance claim will not be covered by the expression 'INSURANCE' occurring in Sec.2(1) [should be 2(1)(o)]. Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a deficiency in the service on the part of the insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the redressal Forum under the Act and seek appropriate relief. We accordingly overrule the objection raised by the Insurance Company questioning the jurisdiction of the State Commission to adjudicate upon the complaint."
"DEFICIENCY IN SERVICE" rendered by Insurance Company
The National Commission held in the case of UMEDILAL AGGRARWAL V/S UNITED INDIA INSURANCE CO.LTD.(1989) 3 COMP.LJ 143 (NC), II (1992) CPJ 451 (N.C.) as follows:
"DEFAULT OR NEGLIGENCE IN REGARD TO SETTLEMENT OF AN INSURANCE CLAIM WILL CONSTITUTE 'DEFICIENCY' IN SERVICE RENDERED BY THE INSURANCE COMPANY."
The above decision of the National Commission firmly established in principle that consumers affected by failure of Insurance Companies in providing service or carrying out its obligations would be entitled to approach the Consumer Court for an inexpensive and speedy red reseal.
National Commission further observed as follows:
"Having regard to the philosophy of the Consumer Protection Act, 1956, and its avowed object of providing cheap and speedy redressal to consumers affected by failure on the part of persons providing service for a consideration to properly carry out their obligations, we do not find it possible to hold that settlement of an insurance claim will not be covered by the expression 'INSURANCE' occurring in Sec.2(1) [should be 2(1)(o)]. Whenever there is a default or negligence in regard to such settlement of an insurance claim that will constitute a deficiency in the service on the part of the insurance company and it will be perfectly open to the concerned aggrieved consumer to approach the redressal Forum under the Act and seek appropriate relief. We accordingly overrule the objection raised by the Insurance Company questioning the jurisdiction of the State Commission to adjudicate upon the complaint."
Chapter: 3.1.7 Consumer Disputes relating to Deficiency in Service
Consumer Disputes relating to Deficiency in Service:
While sale of goods for commercial purpose or for resale is not covered within the purview of the Act, no such distinction is made in the matter of rendering of services. Section 2(o) of the Act defines services as follows: " SERVICE MEANS SERVICE OF ANY DESCRIPTION WHICH IS MADE AVAILABLE TO POTENTIAL USERS AND 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, AMUSMENT OR THE PURVEYING OF NEWS OR OTHER INFORMATION BUT DOES NOT INCLUDE THE RENDERING OF ANY SERVICE FREE OF CHARGE OR UNDER A CONTRACT OF PERSONAL SERVICE."
Consumer Courts are saddled with a large number of cases alleging deficiency in service rendered by Telephone Dept., Insurance Companies, Builders, Hospitals, Stock Brokers, and Dealers & Manufacturing companies.
While sale of goods for commercial purpose or for resale is not covered within the purview of the Act, no such distinction is made in the matter of rendering of services. Section 2(o) of the Act defines services as follows: " SERVICE MEANS SERVICE OF ANY DESCRIPTION WHICH IS MADE AVAILABLE TO POTENTIAL USERS AND 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, AMUSMENT OR THE PURVEYING OF NEWS OR OTHER INFORMATION BUT DOES NOT INCLUDE THE RENDERING OF ANY SERVICE FREE OF CHARGE OR UNDER A CONTRACT OF PERSONAL SERVICE."
Consumer Courts are saddled with a large number of cases alleging deficiency in service rendered by Telephone Dept., Insurance Companies, Builders, Hospitals, Stock Brokers, and Dealers & Manufacturing companies.
Chapter: 3.1.6 National Commission on relationship between Dealer and Manufacturer
National Commission on relationship between Dealer and Manufacturer:
National Commission has held in HERO HONDA MOTORS V/S K B MURLIDHARAN & ANR 1994 (2) CPR 533 (NC) as follows:
"Where the agreement between a 'manufacturer' and 'dealer' is that of 'principle to principle' and not as 'principle' and 'agent', the manufacturer cannot be held liable jointly with the dealer for refund of an amount accepted by the dealer."
In the above case, the complainant booked a Hero Honda Motor Cycle with the dealer but the vehicle was not delivered as per the agreement between the dealer and manufacturer. Transaction between them was on principle-to-principle basis and it is not the case of the complainant that the amount deposited with dealer was passed on to the manufacturer. The order of the Forum below making the manufacturer jointly liable for refund of the amount with the dealer is liable to be set aside.
National Commission has held in HERO HONDA MOTORS V/S K B MURLIDHARAN & ANR 1994 (2) CPR 533 (NC) as follows:
"Where the agreement between a 'manufacturer' and 'dealer' is that of 'principle to principle' and not as 'principle' and 'agent', the manufacturer cannot be held liable jointly with the dealer for refund of an amount accepted by the dealer."
In the above case, the complainant booked a Hero Honda Motor Cycle with the dealer but the vehicle was not delivered as per the agreement between the dealer and manufacturer. Transaction between them was on principle-to-principle basis and it is not the case of the complainant that the amount deposited with dealer was passed on to the manufacturer. The order of the Forum below making the manufacturer jointly liable for refund of the amount with the dealer is liable to be set aside.
Chapter: 3.1.5 Supreme Court on Unfair Trade Practices
Supreme Court on Unfair Trade Practices:
Hon'ble Supreme Court has held in OM PRAKASH (APPELLANT) V/S. A E HARYANA AGRO INDUSTRIES CORPN. (RESPONDENT), 19^94 (2) CPR 9 (SC) that intentional delaying the delivery of a vehicle by the trader to a customer, whereby the customer had to pay more price due to increase in the price of vehicle, amounts to Unfair Trade Practice.
In the aforesaid case, the complainant had booked a tractor and deposited the price in advance on 12.12.90. The tractor was delivered on 21.9.91 at an enhanced rate. Delay in delivery was caused by the pick and choose policy of the dealer. The District Forum ordered refund of the enhanced amount of Rs.40,690/- which the appellant had to pay. Though the State Commission upheld this order, the National Commission reversed it. Section 36A defines Unfair Trade Practices & in different sub - clauses of that section, many Unfair Trade Practices have been specified. However, Act No.58 of 1991 further amended this section to make it more comprehensive. The relevant parts of Section 36-A are as follows:
36-A Definition of Unfair Trade Practices:
In this part unless the context otherwise requires 'Unfair Trade Practice' means trade practice which, for the purpose of promoting the sales, use or supply of any goods or for the provision of any services (adopts any unfair method or deceptive practice including any of the following practices) namely
Permits the hoarding or destruction of goods or refuse to sell the goods or make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise the cost of those or other similar goods or services."
HELD; " As such the conduct and the practice adopted by the respondent in respect of the tractor to Lye appellant, shall not fall under sub-section (5) of section 36-A of MRTP Act (now replaced by The Competition Act, 2002) but after the introduction of aforesaid amendment in bracketed portion i.e. 'adopts any Unfair method or unfair or deceptive practice' not making delivery of the tractor to the appellant shall certainly be deemed to be an 'Unfair Trade Practice' within the meaning of Section 36-A".
Hon'ble Supreme Court has held in OM PRAKASH (APPELLANT) V/S. A E HARYANA AGRO INDUSTRIES CORPN. (RESPONDENT), 19^94 (2) CPR 9 (SC) that intentional delaying the delivery of a vehicle by the trader to a customer, whereby the customer had to pay more price due to increase in the price of vehicle, amounts to Unfair Trade Practice.
In the aforesaid case, the complainant had booked a tractor and deposited the price in advance on 12.12.90. The tractor was delivered on 21.9.91 at an enhanced rate. Delay in delivery was caused by the pick and choose policy of the dealer. The District Forum ordered refund of the enhanced amount of Rs.40,690/- which the appellant had to pay. Though the State Commission upheld this order, the National Commission reversed it. Section 36A defines Unfair Trade Practices & in different sub - clauses of that section, many Unfair Trade Practices have been specified. However, Act No.58 of 1991 further amended this section to make it more comprehensive. The relevant parts of Section 36-A are as follows:
36-A Definition of Unfair Trade Practices:
In this part unless the context otherwise requires 'Unfair Trade Practice' means trade practice which, for the purpose of promoting the sales, use or supply of any goods or for the provision of any services (adopts any unfair method or deceptive practice including any of the following practices) namely
Permits the hoarding or destruction of goods or refuse to sell the goods or make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise the cost of those or other similar goods or services."
HELD; " As such the conduct and the practice adopted by the respondent in respect of the tractor to Lye appellant, shall not fall under sub-section (5) of section 36-A of MRTP Act (now replaced by The Competition Act, 2002) but after the introduction of aforesaid amendment in bracketed portion i.e. 'adopts any Unfair method or unfair or deceptive practice' not making delivery of the tractor to the appellant shall certainly be deemed to be an 'Unfair Trade Practice' within the meaning of Section 36-A".
Chapter: 3.1.4 Supreme Court on Power of the Consumer Forum to grant ad interim stay
Supreme Court on Power of the Consumer Forum to grant ad interim stay:
Finally on the question of 'ad interim stay' Supreme Court held as follow:
"A CAREFUL READING OF THE ABOVE (SECTION 14 (1) OF COPRA) DISCLOSES THAT THERE IS NO POWER UNDER THE ACT TO GRANT ANY AD-INTERIM RELIEF OR EVEN AN INTERIM RELIEF. ONLY A FINAL RELIEF COULD BE GRANTED."
It is relevant to note that 2002 amendment of the Act has amended the Act, interalia enabling Consumer Forum to pass interim relief: S. 13 (3B). Further S.25 of the Act has been amended enabling the Consumer forum to execute the interim order passed by it. Further the said section provides for enforcement of the order through District Collector just as in the case of arrears of land revenue.
Finally on the question of 'ad interim stay' Supreme Court held as follow:
"A CAREFUL READING OF THE ABOVE (SECTION 14 (1) OF COPRA) DISCLOSES THAT THERE IS NO POWER UNDER THE ACT TO GRANT ANY AD-INTERIM RELIEF OR EVEN AN INTERIM RELIEF. ONLY A FINAL RELIEF COULD BE GRANTED."
It is relevant to note that 2002 amendment of the Act has amended the Act, interalia enabling Consumer Forum to pass interim relief: S. 13 (3B). Further S.25 of the Act has been amended enabling the Consumer forum to execute the interim order passed by it. Further the said section provides for enforcement of the order through District Collector just as in the case of arrears of land revenue.
Chapter: 3.1.3 Consumer Disputes relating to Defective Goods
Consumer Disputes relating to Defective Goods:
Supreme Court has in the MORGAN STANLEY case considered and has laid down the law on the question whether 'SHARES' for which application is made for allotment would be goods, whether a "PROSPECTIVE BUYER" of SHARES before ALLOTMENT could be called a consumer and whether an interim stay can be granted under Section 14 of the Act.
A. Supreme court has relied upon the definition of shares provided by the court in Commissioner Of Income Tax (Central) Calcutta v/s Standard Vaccum Oil Co. AIR 1996 S C1897:
"A SHARE IS NOT A SUM OF MONEY, IT REPRESENTS AN INTEREST MEASURED BY A SUM OF MONEY AND MADE UP OF DIVERSE RIGHTS CONTAINED IN THE CONTRACT AND EVIDENCE BY THE ARTICLES OF ASSOCIATION OF THE COMPANY."
The meaning of goods in COPRA is the same as defined under Sale of Goods Act 1930 which covers 'Shares' as well. 'Goods' means every kind of moveable property other than actionable claim and money and includes stocks and shares, growing crops, grass and things attached to and forming parts of the land which are agreed to be severed before sale or under the contract of sale. The Supreme court critically examined whether the 'Shares' for which an application is made for allotment would be 'Goods'.
HELD: "TILL THE ALLOTMENT OF SHARES TAKES PLACE, THE SHARES DO NOT EXIST AND THEREFORE THEY CAN NEVER BE CALLED AS GOODS"
B. At the stage of application, shares are not goods and a prospective buyer before allotment of shares cannot be called a ' Consumer A company building-up it's capital by issue of shares is not trading in such shares and therefore cannot be said to be engaged in unfair trade practices.
Supreme Court has in the MORGAN STANLEY case considered and has laid down the law on the question whether 'SHARES' for which application is made for allotment would be goods, whether a "PROSPECTIVE BUYER" of SHARES before ALLOTMENT could be called a consumer and whether an interim stay can be granted under Section 14 of the Act.
A. Supreme court has relied upon the definition of shares provided by the court in Commissioner Of Income Tax (Central) Calcutta v/s Standard Vaccum Oil Co. AIR 1996 S C1897:
"A SHARE IS NOT A SUM OF MONEY, IT REPRESENTS AN INTEREST MEASURED BY A SUM OF MONEY AND MADE UP OF DIVERSE RIGHTS CONTAINED IN THE CONTRACT AND EVIDENCE BY THE ARTICLES OF ASSOCIATION OF THE COMPANY."
The meaning of goods in COPRA is the same as defined under Sale of Goods Act 1930 which covers 'Shares' as well. 'Goods' means every kind of moveable property other than actionable claim and money and includes stocks and shares, growing crops, grass and things attached to and forming parts of the land which are agreed to be severed before sale or under the contract of sale. The Supreme court critically examined whether the 'Shares' for which an application is made for allotment would be 'Goods'.
HELD: "TILL THE ALLOTMENT OF SHARES TAKES PLACE, THE SHARES DO NOT EXIST AND THEREFORE THEY CAN NEVER BE CALLED AS GOODS"
B. At the stage of application, shares are not goods and a prospective buyer before allotment of shares cannot be called a ' Consumer A company building-up it's capital by issue of shares is not trading in such shares and therefore cannot be said to be engaged in unfair trade practices.
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