Medical Negligence Cases in National Commission.

In the matter of :

Supreme Court of India

Indian Medical Association vs V.P. Shantha & Ors

Equivalent citations: 1996 AIR 550, 1995 SCC (6) 651

Author: S Agrawal

Bench: Agrawal, S.C.

PETITIONER:

INDIAN MEDICAL ASSOCIATION

Vs.

RESPONDENT:

V.P. SHANTHA & ORS.

(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act.

(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.

(3) A ‘contract of personal service’ has to be distinguished from a ‘contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ‘contract of personal service’. Such service is service rendered under a `contract for personal services’ and is not covered by exclusionary clause of the definition of ‘service’ contained in Section 2(1) (o) of the Act. (4) The expression ‘contract of personal service’ in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ‘service’ as defined in Section 2(1) (o) of the Act.

(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be “service” as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(6) Service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service – is outside the purview of the expression ‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.

(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression ‘service’ as defined in Section 2(1) (o) of the Act.

(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ‘service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be “service” and the recipient a “consumer” under the Act.

(9) Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service – is outside the purview of the expression ‘service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.

(10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be “service” and the recipient a “consumer” under the Act.

(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ‘service’ as defined in Section 2(1) (o) of the Act.

(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under Section 2(1) (o) of the Act.

Final Decision of Case:

In view of the conclusions aforementioned the judgment of the National Commission dated April 21, 1992 in First Appeal No. 48 of 1991 [M/s Cosmopolitan Hospitals & Anr. v. Smt. Vasantha P. Nair] and the judgment dated November 16, 1992 in First Appeal No. 97 of 1991 [Dr. Sr. Louie & Anr. v. Smt. Kannolil Pathumma & Anr.] holding that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression ‘service’ as defined in Section 2(1) (o) of the Act and that in the event of any deficiency in the performance of such service the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction, must be upheld and Civil Appeal Nos. 688/93 and 689/93 and S.L.P. (Civil) Nos. 6885/92, 6950/92 and 351/93 filed against the said judgment have to be dismissed. The National Commission in its judgment dated May 3, 1993 in O.P. No. 93/92 has held that since the treatment that was given to the deceased husband of the complainant in the nursing home belonging to the opposite party was totally free of any charge it does not contitute ‘service’ as defined in Section 2(1) (o) of the Act. The Tribunal has not considered the question whether services are rendered free of charge to all the patients availing services in the said nursing home or such services are rendered free of charge only to some of the patients and are rendered on payment of charges to the rest of the patients. Unless it is found that the services are rendered free of charge to all the patients availing services at the nursing home, it cannot be held that the said services do not constitute ‘service’ as defined in Section 2(1) (o) of the Act. Civil Appeal No. 254/94 has, therefore, to be allowed and the matter has to be remitted to the National Commission for consideration in the light of this judgment. The judgment of the Madras High Court in Dr. C.S. Subramaniam v. Kumaraswamy & Anr. (supra), holding that the services rendered to a patient by a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of ‘service’ in Section 2(1) (o) and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medicinal and surgical, cannot be considered to be a ‘consumer’ within the meaning of Section 2(1) (d) of the Act cannot be sustained and Civil Appeals Nos. 4664-65/94 as well as Civil Appeals arising out of S.L.P.(Civil) Nos. 21775/94 and 18445-73/94 have to be allowed and the said judgment of the Madras High Court has to be set aside and the writ petitions disposed of by the said judgment have to be dismissed. The judgment of the National Commission dated December 15, 1989 in First Appeal No. 2 of 1989 holding that services rendered in Government hospitals are not covered by the expression ‘service’ as defined in Section 2(1) (o) of the Act cannot be upheld in its entirety but can be upheld only to the extent as indicated in conclusion No. 9. Civil Appeal arising out of S.L.P. (Civil) No. 18497/93 has to be allowed and the complaint has to be remitted to the State Commission for consideration in the light of this judgment. S.L.P.(Civil) Nos. 21348-21349/93 have been filed against the judgment of the Kerala High Court dated October 6,1993 in Writ Petitions filed on behalf of the hospitals claiming that the services rendered by the hospitals do not fall within the ambit of Section 2(1) (o) of the Act. The said Writ Petitions were dismissed by the High Court having regard to the decision of the National Commission in Cosmopolitan Hospital (supra) and the pendency of appeal against the said decision before this Court. Since the decision of the National Commission in Cosmopolitan Hospital (supra) is being upheld by us, S.L.P. (Civil) Nos. 21348-21349/93 have to be dismissed. Writ Petition (Civil) No. 16/94 has been filed by the Cosmopolitan Hospital (P) Ltd. and Dr. K. Venugopalan Nair who have also filed S.L.P. (Civil) Nos. 6885/92 and 6950/92 against the judgment of the National Commission dated April 21, 1992. In the Writ Petition, the said writ petitioners have sought a declaration that the provisions of the Act are not applicable to alleged deficiency in medical service and that if the said provisions are held to be applicable to the medical profession and hospitals the same may be declared as unconstitutional as being violative of Articles 14 and 19(1)(g) of the Constitution. As regards the first part of the prayer regarding the applicabilty of the provisions of the Act to the alleged deficiency in medical service, we have already considered the matter and found that the provisions of the Act are applicable to deficiency in service rendered by medical practitioners and hospitals and for the same reason the said prayer cannot be allowed. the other prayer sought for in the Writ Petition regarding the validity of the provisions of the Act is also without any substance. The ground on which the writ petitioners are seeking to assail the validity of the provisions of the Act is that the composition of the Consumer Disputes Redressal Agencies and the procedure to be followed by the said Agencies is such that it is not suitable for adjudication of the complex issues arising for consideration. We have already considered this grievance urged on behalf of the medical profession and have found that the composition of the Consumer Disputes Redressal Agencies as well as the procedure to be followed by them does not preclude a proper adjudication of the consumer disputes arsing out of complaints relating to deficiency in service rendered by medical practitioners and hospitals. In our opinion, on case is made out that the Act suffers from the vice of arbitrariness or unreasonableness so as to be violative of Articles 14 and 19(1)(g) of the Constitution. There is, therefore, no merit in the Writ Petition and it has to be dismissed.

In the result Civil Appeals Nos. 688/93 and 689/93, and S.L.P. (Civil) Nos. 6885/92 and 6950/92 are dismissed. The State Commission will deal with the complaints in the light of this judgment. S.L.P.[Civil] Nos. 351/93 and 21348- 21349/93 and Writ Petition (Civil) Nos. 16/94 are also dismissed. Civil Appeal No. 254/94 is allowed and the judgment of the National Commission dated May 3, 199 is set aside and O.P.No. 93/92 is remitted to the National Commission for consideration in the light of this judgment. Civil Appeals Nos. 4664-65/94 and Civil Appeals arising out of S.L.P. (Civil) Nos. 21755/94 and 18445-73/94 are allowed and the judgment of the Madras High Court dated February 17, 1994 is set aside and the writ petitions disposed of by the said judgment of the High Court are dismissed and as a result the Consumer Disputes Redressal Agencies would deal with the complaint petitions covered by those writ petitions in the light of this judgment. Civil Appeal arising out of S.L.P. (Civil) No. 18497/93 is alos allowed and Complaint Case No. 1 of 1988 is remitted to the State Commission for consideration in the light of this judgment. No order as to costs.