Chapter- 4 Legal Responses to Medical Negligence: A View of Consumer

Protection Act

4.1 Medical Profession and Consumer Law

The father of medicine, Hippocrates had opined two and a half millennia earlier that
“medicine despite being the noblest of all arts is trailing behind the others for the
ignorance of those who practice it and the inconsiderate assessments of those who
judge the people of the medical fraternity”.1 The words of father of medicine signifies
the plight of the medical professionals. In India, a special piece of legislation
Consumer Protection Act (COPRA) enacted in the year 1986 to redress grievances of
consumer of medical service. COPRA gives additional avenues to consumers of
medical service to seek redress if they are aggrieved due to the deficiency in the
service provided by medical professional.

4.1.1 Prior to the operation of Consumer Protection Act

Before Consumer Protection Act came into force, aggrieved patients by

medical negligence or misconduct had three boulevard to seek redressal to
their problems-

1. The Medical Council of India established under the Indian Medical

Council Act 1956,

2. The civil courts, and

3. The criminal courts.

But, each one have their own shortcomings , for instance: as per the
provisions of the Indian Medical Council Act, 1956 defiance of the
regulations formulated by the Council shall only constitute misconduct.
Secondly, the Council is available only at the big cities, thereby making it
inaccessible to the majority of the masses. Thirdly, the Act has no provision
to entertain complaints from patients.2

1 Karnakaranma Mathiharan, “Supreme Court on Medical Negligence”, Economic and

Political Weekly, vol. 31, No. 2, (2006) at 111.
2 Niraj Kumar, Medical Profession and Consumer Protection 680 (Bharat Law House Pvt.
Ltd., New Delhi, 1st edn., 2012).
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Moreover, the Medical Council has seldom redressed the grievances of the
public through its offices. The National Commission has also reaffirmed the
incompetence of the Indian Medical Council in dealing with cases of medical
negligence when it observed in the case of Cosmopolitan Hospital Pvt. Ltd. v
Vasantha P. Nair3 that there is no provision in the Indian Medical Council
Act 1956 for the protection of the interests of persons who may have suffered
due to the negligence or deficiency in the service provided by the medical
professionals. That gray area is hence covered by the Consumer Protection
Act in particular.4

Prior to the introduction of Act the civil remedies available to an aggrieved

patient or his family were based on the law of torts and Sec. 1A of the Fatal
Accidents Act 1855 and the relief provided was in the nature of monetary
compensation which could be procured by filing a complaint against the
erring doctor.5 Takes years to reach an outcome. For instance, in Achutrao
Haribabu Khodwa v State of Maharashtra6 the Supreme Court awarded a
some of Rs. 36,000 with costs after 33 years the death the patient7. Moreover,
the cost of instituting civil action against the errant doctors which is
exorbitant in comparison to the sums recovered in damages, limits access to
the courts by the poorer sections of society and the difficulty in establishing
negligent conduct on the part of the doctor (which depends both on proof of
negligence and causation)8 are the other reasons which have prevented
patients form seeking relief through this mode of redressal.

3 1993 CCJ 198 (NC).

4 Supra, footnote 1 at 670.
5 Karunakaranma Mathiharan, “Supreme Court on Medical Negligence”, Economic and
Political Weekly, vol. 31, No. 2 (2006).
6 AIR 1996 SC 2377.
7 Supra footnote 5.
8 Niraj Kumar, Medical Profession and Consumer Protection 680 (Bharat Law House Pvt.
Ltd., New Delhi, 1st edn., 2012).
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In so far as the remedy under criminal law is concerned, a criminal complaint

against a doctor can be filed under section 304A of Indian Penal Code 1860
in case the patient under his treatment dies due to any rash or negligent act on
his part. If one patient undergoing treatment does not die but suffers grievous
injuries inflicted during treatment then the doctor can be booked under
section 337, section 338 of the Indian Penal Code.

Hence it can rightly be said that despite the protests before and after the
enactment of COPRA, the decision to include the medical professionals and
services within the ambit of the Act was a well thought move of the policy
framers. However, it is pertinent to note that the enactment of COPRA does
not preclude the consumer of medical services to avail of the other avenues of
grievance redressed in cases of medical negligence or misconduct. This is
expressly provided in section 3 of the act which states that the provisions of
the Act are in addition to and not in derogation of the provisions of any other
law for the time being in force.

The Preamble of the Consumer Protection Act, 1986 lucidly explains the
purpose of its enactment: to protect the interests of consumers and for that
purpose to make provision for the establishment of consumer councils (a
three tier consumer dispute redressal machinery at District, State and National
level) and other authorities for the settlement of consumer disputes. The
Indian Parliament enacted this legislation in order to comply with the
guidelines adopted by the UN General Assembly on 9th April 1985 aimed at
the protection of consumer interest especially in the developing countries.9
The Act can very well pride itself of being the only legislation in India wholly
aimed at the welfare of consumers and provide safeguard the rights of
consumers.

4.2 Consumer Law and Medical Negligence

9 Tapash Kumar Koley, Medical Negligence and Law in India, Duties, Responsibilities and
Rights 134 (Oxford University Press, New Delhi, 1st edn., 2010).
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4.2.1 Consumer for the purpose of Consumer Protection Act: The Relief
Seeker

As per Sec 2 (1) (d) of the consumer Protection Act, 1986

“Consumer” means any person who—

(i) Buy any goods for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred
payment and includes any user of such goods other than the person who
buys such goods for consideration paid or promised or partly paid or
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; or
10
(ii) [hires or avails of] any services for a 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 of ] the services of
consideration paid or promised, or partly paid and partly promised, or
under any system of deferred payment, when such services are availed
11
of with the approval of the first mentioned person [but does not
include a person who avails of such services for any commercial
purpose]
12
[Explanation.—For the purposes of this clause, “commercial purpose”
does not include use by a person of good bought and used by him and
services availed by him exclusively for the purposes of earning his
livelihood by means of self employment;]

10 Subs. By Act 50 of 1993, sec. 2, for “hires” (w.e.f. 18-6-1993)

11 Ins. By Act 62 of 2002, sec. 2 (w.e.f. 13-3-2003)
12 Subs. by Act 62 of 2002, sec. 2, for Explanation (w.e.f. 15-3-2003). Earlier Explanation
was inserted by Act 50 of 1993, sec. 2 (w.e.f. 18-6-1993).
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The COPRA does not mandate a long list of prerequisites for any
individual to qualify as a „consumer‟ under the Act. Any purchaser of
goods and any user of such goods with the approval of the purchaser
would be a consumer under the Act13. Hence, a patient would be a
consumer for a drug company even if the same has been procured with
the money of his employer or an insurance company.14

4.2.2 ‘Service’ defined under Consumer Protection Act

A very comprehensive definition of „service‟ has been incorporated in the

Act. Section 2 (1) (o) of the Act states that “service means service of any
description which is made available to potential 15[users and includes, but not
limited to, the provision of] facilities in connection with banking, financing
insurance, transport, processing, supply of electrical or other energy, board or
16
lodging 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 under a contract of personal service”.

However, after the enactment of Consumer Protection Act, there was a lot of
ambiguity about its application to the medical services and this was not taken
positively by medical fraternity. Many medical professionals shown their
dissatisfaction towards the act and filed SLPs to the Apex Court The plea
taken by them was that the relationship between a doctor and a patient is not
that of a buyer and seller. Various arguments were put forward to persuade
policy makers to exclude the medical professionals and their services from
the preview of the Act, some of which have been enlisted as-

13 B. Sandeepa Bhat (ed.), Reflections on Medical Law and Ethics in India 238 ( Eastern
Law House, Kolkata 2016).
14 Arun Bal, “Consumer Protection Act and Medical Profession”, Economic and Political
Weekly, vol. 28, No. 11, (1993) at 433.
15 Subs. by Act 62 of 2002, sec. 2, for “user and includes the provision of” (w.e.f. 15-3-
2003)
16 Ins. By Act 50 of 1993, sec. 2 (w.e.f. 18-6-1993)
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 The medicos argued that doctors are not traders and their profession is
based on trust, faith etc.17 Since ancient times the medical profession has
been accorded a high status and respect in society and hence bringing them
within the purview of COPRA will degrade the nobleness of the profession
and may induce the masses to perceive them skeptically;

 The medical professional were particularly against the inclusion of patients

under the category of consumers because they did not perceive patients as
mere sources of income or profit making;18

 It was asserted by them that medical cases have their share of technicality
and the judges would be inept in deciding the same;19

 There was no court fee or stamp duty for filing complaints under COPRA
when it was first enacted20 and hence they feared that the number of
frivolous complaints against doctors would increase manifolds;21

 They insisted on a provision to be incorporated in the Act which would

ensure that the doctors against whom allegations of medical negligence or
deficiency in service are made are compensated if the complaint of the
patient against them fails;22

17 Arun Bal, “Consumer Protection Act and Medical Profession”, Economic and Political
Weekly, vol. 28, No. 11, (1993) at 434.
18 Niraj Kumar, Medical Profession and Consumer Protection 678 ( Bharat Law House
Pvt. Ltd., New Delhi, 1 edn., 2012).
19 Supra note 1
20 After the Consumer Protection (Amendment) Act 2002 all complaints must be
accompanied by such amount of court fee as may have been prescribed.
21 Supra note 17.
22 Ibid
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 They asserted that doctors cannot be tried simultaneously under COPRA

and the Indian Medical Council Act 195623 and hence tried to reiterate the
futility of bringing medical services within the ambit of Acts;

 It was also demanded by the medical professionals that there should be a

panel of doctors to give opinion in cases of medical negligence which
should necessarily be accepted by the consumer courts;24

 One of the arguments raised by the medical professionals was that the
doctors would be forced to resort to defensive medicine to prevent falling
on the wrong side of law which would increase the cost of health care;25

 They also stressed that medical negligence and misconduct of medical

practitioners could be tried under civil and criminal law and the disputes
could be resolved at the Medical Council of India, State Medical Councils,
and the civil and criminal courts;26

 In addition to the above, the Medical Council of India too challenged the
provision of the Act on the ground that the Indian Medical Council Act,
1956 already governed the medical practitioners and the code of medical
ethics was adequate to steer and regulate the conduct of the medical
profession and to apply remedial measures whenever the need arose for the
same.27

In so far as the applicability of Consumer Protection Act to the medical

professionals and services is concerned, they undeniably fall within the ambit

23 Ibid
24 Ibid
25 Ibid
26 Tapas Kumar Koley, Medical Negligence and Law in India, Duties, Responsibilities and
Rights 134 (Oxford University Press, New Delhi, 3rd edn.,2014).
27 Available at: https://www.justor.org/tc/accept?origin=%2Fstable%2Fpdf%2F4403432.o
df%3Frefreqid%3Dsearch%253A1346cab10f546a4658c2e42173661255a (Last visited
on November 1, 2017).
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of the Act keeping with the decision of the Apex Court in Indian Medical
Association Versus V. P. Shantha28.

In this important judgment, the Supreme Court examined the liability of

medical professionals and medical establishments including the public or
private. The Apex court held-

1) “Service rendered to a patient by a Medical Practitioner by way of

consultation, diagnosis on treatment fall under section 2(1)(o).

2) Service rendered free of charge by a Medical Practitioner attached to a

hospital/nursing home and all medical officers employed in a
hospital/nursing home where such services are rendered free of charge to
all patients is not a service under the Act.

3) Service rendered in a non-government hospital/nursing home where no

charge is collected from all patients is not covered by the Act.

4) Service rendered at non-governmental hospital/nursing home where charge

are collected from some and not collected from some others, the service
rendered fall under 2(1) (o) of the Act irrespective of the fact that the
service was rendered free of charge to some poor persons. The patient
obtaining free service is also a consumer under the act.

5) Service rendered at Government hospital/health centre/dispensary where

no charge is levied on any patient is outside the purview of the Act.

6) Service rendered at a Government Hospital/health centre/dispensary where

services are rendered on payment of charge to some and rendered free of
charge to other persons, fall under Section 2(1) (o) of the Act irrespective
of the fact that the service is rendered free of charge to some poor persons.
The patient obtaining free service in such case also is a consumer under
the Act.

28 (1995)6 SCC 651.

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7) Where as a part of consideration of service the employer bears the

expenses of medical treatment of an employee and his family members,
the service to such an employee and his dependants by a Medical
Practitioner or a Hospital/nursing home would not be free of charge and
would constitute service under the Act.

8) In most Government hospitals there are separate paying wards where

affluent patients seek admission and the general ward where poor patients
are treated free of charge. Can we say that a patient in a paying ward only
is a consumer and is protected under the Act and the ordinary patient in a
general ward is not protected by the Act? Both types of patients are
entitled to get protection under the Act”.
29
In the Indian Medical Association v. V.P. Shantha case the Supreme Court
held that “the definition of services in section 2(1)(o) of the Act can be split up
into three parts- the main part, the inclusionary part and the exclusionary part.
The main part is explanatory in nature and defines service to mean service of
any description which is made available to the potential users. The inclusionary
part expressly includes the provision of facilities in connection with banking,
financing, insurance, transport, processing, supply of electrical or other energy,
board or lodging or both housing construction, entertainment, amusement or
the purveying of news or other information. The exclusionary part excludes
rendering of any service free of charge or under a contract of personal services.
The inclusive part of the definition of „service‟ is not applicable and we are
required to deal with the questions failing for consideration in the light of the
main part of the definition contained in section 2(1)(o) of the act. We have,
therefore, to determine whether medical practitioners and hospitals/nursing
homes can be regarded as rendering a „service‟ as contemplated in the main
part of section 2(1)(o)”.

4.2.3 Service availed ‘with consideration’

29 AIR 1996 SC 550

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By enactment of the Consumer Protection Act 1986, the intention of the

Parliament is to provide protection and relief to persons who have hired any
services for consideration when the services provided are found to suffer from
deficiency in any respect.30

The exclusionary part of section 2(1) (o) also excludes services rendered free
of cost from the purview of the act. In IMA v. V.P. Shantha the Supreme Court
dealt with the services rendered to patients for a charge and even those that are
provided free of cost in a detailed manner. The Court also enlisted the various
kinds of services that would fall within the ambit of the Act and those that
would not be included within secion 2(1) (o). The Supreme Court categorized
the services rendered by doctors and hospitals into broadly three groups:

(1)Services that are rendered free of charge to everybody availing the said
service. The Supreme Court held that such service would not fall within
the ambit of „service‟ as defined under the act.

(2)Services that are provided in lieu of a charge to everybody availing the

services. The Court held that such services would unquestionably fall
within the purview of section 2(1)(o) of the Act.

(3)Services that are provided on payment of the requisite fees to some

although provided free of charge to those who cannot afford to pay for the
services. The Court opined that such service would be included within the
folds of the Act, since the expenses incurred for the free services rendered
to the poor patients would be compensated by the revenue generated from
the patients who pay for their services.

The professional service rendered by medical practitioner for consideration

falls within the scope of the expression “service” as defined in section 2(1)(o)
of the Consumer Protection Act 1986.31 It is held by the National

30 Consumer Unity & Trust Society, Jaipur v. State of Rajasthan 1991(1) CPR 241 (NC).
31 Dr. Sr. Louie v. Smt. Kannolil Pathumma 1993(1) CPR 422 (NC).
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Commission 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
Consumer Protection Act and in the event of any deficiency in the
performance of such service the aggrieved party can invoke the remedies
provided under the Consumer Protection Act by filing a complaint before the
Consumer Forum having jurisdiction.32 Here, „deficiency‟ means “any fault,
imperfection, shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a person in
pursuance of a contract or otherwise in relation to any service”.33

It is now well-settled by the Supreme Court34 that 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 medical and surgical, would fall
within the ambit of “service” as defined in section 2(1) (o) of the Consumer
Protection Act.

In Mumbai Grahak Panchayat’ case the State commission of Maharashtra,

did not award any compensation against an anaesthetist, because there was no
privity of contract between the patient and the anaesthetist whose service was
hired by the surgeon for the patient. By reversing the decision of the State
Commission on a appeal, it is held by the National Commission35 that the
anaesthetist who participated in the process of delivery of medical services to

32 Consumer Education and Research Society v. Dr. Ratilal B. Patel (1993)1 CTJ 89
(NCDRC); M/S. Cosmopolitan Hospital v. Smt. Vasantha P. Nair (1992)1 CPR 820
(NC).
33 Section 2(1) (g) of the Consumer Protection Act 1986.
34 Indian Medical Association v. V.P. Shantha AIR 1996 SC 550.
35 Mumbai Grahak Panchayat v. Dr. (Mrs.) Rashmi B. Fadnavis 1996(1)CPR 137 (NC)
confirmed by NC in Dr. (Mrs.) Rashmi B. Fadnavis v Mumbai Grahak Panchayat 1999
CCJ 391 (NC).
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the beneficiary is as much liable as the main surgeon if negligence is

established for a claim to made under Consumer Protection Act, so long as
there is hiring or availing of services for consideration.

4.2.4 Service availed ‘without consideration’

A medical professional rendering professional service free of cost has no

obligation under the Consumer Protection Act 1986. A gratuitous patient is
not a consumer for availing of medical services free of cost.

The recommendation of High Power Working Group 36 to amend secion

2(1)(d)(ii) of the Consumer Protection Act 1986 by incorporation a proviso,
viz. “Provided that consideration shall not be a condition precedent in case of
(a) health and medical services and (b) availing of mandatory services
provided by State or local authorities”, was not accepted by the Government
of India.

The consistent view of the State Commission of various states is this a person
who avails himself of the facility of medical treatment in the Government
hospital is not a consumer, because the medical facility offered in the
Government hospital cannot be regarded as service hired for consideration.

It is now well-settled by the decision of the Supreme Court37 that the service
rendered by a medical practitioner engaged to government hospital or non-
government hospital or nursing home or health centre or dispensary where
such services are rendered free of charge to everybody, would not be service
under section 2(1)(o) of the Consumer Protection Act. The payment of a token
amount or registration purpose only at the hospital or nursing home would not
alter the position. It is clear from the above decision of the Supreme Court that
service rendered at a government hospital or non-government hospital or
nursing home where services are rendered on payment of charges to some

36 R.K. Bag, Law of Medical Negligence and Compensation 338 (Eastern Law House,
Kolkata, 2nd edn., 2001).
37 Consumer Unity & Trusty Society, Jaipur v. State of Rajasthan 1991(1) CPR 241 (NC).
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persons and rendered free of charge to other persons availing of such services
would fall within the ambit of the expression “service” defined in section
2(1)(o) of the Consumer Protection 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. Accordingly free service rendered by a medical practitioner
may be service under section 2(1)(o) of the Consumer Protection Act and the
recipient a “consumer” under the said Act. By following the decision of the
Supreme Court it is held by the National Commission38 that “service”
rendered gratuitously by the doctor to the relation of colleague doctor in the
nursing home where patients are treated on payment of charges, fall within the
ambit of „service‟ under section 2(1)(o) of the Consumer Protection Act 1986.

Observing the decisions of the Supreme Court it is laid down by the National
Commission that a Government Servant under Central Government Health
Scheme is not a consumer within the meaning of section 2(1)(d) of the
Consumer Protection Act 1986, and the service rendered to him under CGHS
does not constitute “service” as defined in section 2(1)(o) of the said Act.39
The payment of a token amount for registration or a token contribution made
cannot be classified as consideration for availing the services falling within
the ambit of service under section 2(1)(o) of the Consumer Protection Act
1986.40

According to the dictum of the Apex Court,41 service rendered by a medical

practitioner or hospital or nursing home cannot be regarded free of charge, if
the person availing of the service has taken an insurance policy for medical
care whereunder the charges will the reimbursed by the Insurance company.

4.2.5 Medical Services Rendered Free of Charge: Applicability of CPA

38 Vijay H. Mandkar v. Dr. (Mrs.) Mangla Bansod 2000 CCJ 610.

39 Additional Director, CGHS, Pune v. Dr. R.L. Butani 1996(1) CPR 136 (NC).
40 Anthony Dass v. Ex Engineer, Earth Mover Division, 1998 CCJ 1301 (Kant).
41 Indian Medical Association v. V.P. Shantha AIR 1996 SC 550.
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There was an issue whether free medical treatment given by medical

professionals would come under Consumer Protection Act? The Supreme
Court cleared the position and held that “The medical practitioners,
government hospitals/nursing homes and private hospitals/nursing homes
(hereinafter called „doctors and hospitals‟) broadly fall in three categories: (i)
Where services are rendered free of charge to everyone availing the said
services; (ii) Where charges are required to be paid by everyone availing the
services; and (iii) Where charges are required to be paid by persons availing
services but certain categories of persons who cannot afford to pay are
rendered service free of charges. There is no difficulty in respect of first two
categories. Doctor and hospitals who render service without any charge
whatsoever to every person availing the service would not fall within the
ambit of „service‟ under section 2(1)(o) of the act. The payment of token
amount for registration purposes only would not alter the position in respect
of such doctors and hospitals. So far as the second category is concerned,
since the service is rendered on payment basis of all the persons they would
clearly fall within the ambit of section 2(1)(o) of the act.......The question for
our consideration is whether the service rendered to patients free of charge by
the doctors and hospitals in category (iii) is excluded by virtue of the
exclusionary clause in section 2(1)(o) of the act. In our opinion the question
has to be answered in the negative...... We are, therefore, of opinion that
service rendered by the doctors and hospitals falling in category (iii)
irrespective of the fact that part of the service is rendered free of charge,
would nevertheless fall within the ambit of the expression „service‟ as defined
in section 2(1)(o) of the act. We are further of the view that persons who are
rendered free service are the „beneficiaries‟ and as such come within the
definition of „consumer‟ under section 2(1)(d) of the act....... 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 everyone, would not be „service‟ as defined in

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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”42.

4.2.6 Contract of Service vis-a-vis Contract for Service

In IMA’s case43 Indian Medical Association advanced the argument that

medical services should be considered „contract of personal service‟ rather
than „contract for service‟ and hence, should be excluded from the purview of
the act.

The Supreme Court at page no 14 of the above case held that “A „contract for
services‟ implies a contract whereby one party undertakes to render services
i.e. professional or technical services, to or for another in the performance of
which he is not subject to detailed direction and control but exercise
professional or technical skill and uses his own knowledge and discretion.
[See: Oxford Companion to Law, p. 1134]. A „contract of service‟ implies
relationship of master and servant and involves an obligation to obey orders
in the work to be performed and as to its mode and manner of performance. [
See: Stroud‟s Judicial Dictionary, 5th Edn., p 540; Simmons v. Health
Laundry Co., (1910) 1 KB 543, and Dharanagadhara Chemical Works at p.
159]. We entertain no doubt that Parliamentary draftsman was aware of this
well accepted distinction between „contract of service‟ and „contract for
services‟ and has deliberately chosen the expression „contract of service‟
instead of the expression „contract for services‟, in the exclusionary part of
the definition of „service‟ in section 2(1)(o). The reason being that an
employer cannot be regarded as a consumer in respect of the services
rendered by his employee in pursuance of a contract of employment”.

It is clear from the above observation of court that if a complimentary patient

is seen by a medical practitioner in his clinic where he charges a fee from all
other patients, will make the complimentary patient as a consumer by virtue

42 Ibid., para 43, 44 and 55.

43 Ibid.
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of Consumer Protection Act and he can claim compensation in a consumer

forum for deficiency of service.

In Vijay H. Mankar v. Dr. Mangla Bansod44 gratuitously service is rendered

by a doctor to the relative of his colleague in nursing home where patients are
treated on payment of charges. It is held by the National Commission that
such service falls within the ambit of section 2(1)(o) of the CPA.

4.3 Recourse Available under Consumer Protection Act by Aggrieved

Person
The terms „medical negligence‟ or „misconduct‟ is not defined by the Act. Now, the
question arises that what recourse does a patient have if he is aggrieved due to the
treatment provided to him or medical facility made available to him by a medical
professional. This is addressed by section 2(1)(c) and section 2(1)(g) of the Act.
Section 2(1)(c) of the Act defines „complaint‟ as a written allegation and enlists the
situations when a complaint can be filed under the Act and one such situation is
when the services hired or availed of or agreed to be hired or availed of by a person
suffers from deficiency in any respects. Section 2(1)(g) of the Act defines
„deficiency‟ as any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance of service. Such flaws in service would amount to
deficiency only if the quality, nature and the manner of performance of the service
rendered are required to be maintained by or under any law for the time being in
force or has been undertaken to be performed by the service provider in pursuance of
a contract.

Section 2(1)(c) read with section 2(1)(g) makes clear to one that in order to make a
complaint under the very Act with regard to medical services rendered the act
complained must fall within the definition of „service‟ as stipulated by the Act and
there must be „deficiency‟ in such service as per the norms of the Act. Thus in order
to initiate any action against a doctor or an establishment on the grounds of medical

44 I (2000) CPJ 37 NCDRC.

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negligence under the Act, a complaint has to be made to the concerned Consumer
Disputes Redressal Forum alleging „deficiency in service‟ as defined under the Act.
It is important to note that the Act entertains complaints not only from the consumer
who has been directly aggrieved but also from voluntary consumer associations, a
group of consumers who have the same interest, the legal heir or representative of a
deceased consumer and even the Central Government or any of the State
Governments. The Act also empowers the District Form, the State Commissions and
the National Commission to direct a service provider to compensate the consumer if
the consumer has suffered any loss or injury due to the negligence of the service
provider. And, how deficiency in service be established, this is answered by the
Supreme Court in IMA v. V. P. Shantha. It was held that in determination about
deficiency in service under section 2(1)(g) of the Consumer Protection Act is to be
made by applying the same test as is applied in an action for damages for negligence
in a civil court45.

4.3.1 The Initiation of Proceeding: A Complaint

An action under the Consumer Protection Act can be taken when aggrieved
party or patient lodge a complaint in consumer forum. The complaint may be
lodged by a patient in the absence of injury. The aggrieved person may take
recourse of those consumer fora which has a territorial jurisdiction over the
area. Pecuniary jurisdiction of the complaint may also be kept in mind when
the complaint lodges.

Section 2(1) (c) of the Consumer Protection Act 1986 defines the term
complaint. “Complaint means any allegation in writing made by a
complainant that-

(i) an unfair trade practice or a restrictive trade practice has been adopted by
any trader or service provider;

45 Niraj Kumar, Medical Profession and Consumer Protection 32 (Bharat Law House Pvt.
Ltd., New Delhi, 1st edn., 2012).
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(ii) the goods bought by him or agreed to be bought by him suffer from one
or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him

suffer from deficiency in any respect;

(iv) a trader or the service provider, as the case may be, has charged for the
goods or for the services mentioned in the complaint, a price in excess of
the price-

(a) fixed by or under any law for the time being in force;

(b) displayed on the goods or any package containing such goods;

(c) displayed on the price list exhibited by him by or under any law for
the time being in force;

(d) agreed between the parties;

(v)goods which will be hazardous to life and safety when used are being
offered for the sale to the public,-

(a) in contravention of any standards relating to safety of such goods as

required to be complied with, by or under any law for the being in
force;

(b) if the trader could have been known with due diligence that the
goods so offered are unsafe to the public;

(vi) services which are hazardous or likely to be hazardous to life and safety
of the public when used, are being offered by the service provider which
such person could have known with due diligence to be injurious to life
and safety;

with a view to obtaining any relief provided by or under the Act”.

4.3.2 Manner of lodging a complaint at District Forum

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According to section 12(1) of the act “A complaint in relation to any goods

sold or delivered or agreed to be sold or delivered or any service provided or
agreed to be provided may be filed with a District Forum by-

(a) the consumer to whom such goods are sold or delivered or agreed to be
sold or delivered or such service provided or agreed to be provided;

(b) any recognised consumer association whether the consumer to whom the
goods sold or delivered or agreed to be sold or delivered or service
provided or agreed to be provided is a member or such association or not;

(c) one or more consumers, where there are numerous consumers having the
same interest, with the permission of the District Forum, on behalf of, or
for the benefit of, all consumers so interested; or

(d) the Central Government or the State Government, as the case may be,
either in its individual capacity or as a representative of interests of the
consumers in general.

Section 12(2) states every complaint filed under sub-section (1) shall be
accompanied with such amount of fee and payable in such manner as may
be prescribed.

4.3.3 Relief that can be granted by District Forum

Section 14 of the Consumer Protection Act empowers the District Forum to

grant relief to aggrieved ones.

“If, after the proceeding conducted under section 13, the District Forum is
satisfied that the goods complained against suffer from any of the defects
specified in the complaint or that any of the allegations contained in the
complaint about the services are proved, it shall issue an order to the opposite
party directing him to do one or more of the following things, namely-

(a) to remove the defect pointed out by the appropriate laboratory from the
goods in question;

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(b) to replace the goods with new goods of similar description which shall
be free from any defect;

(c) to return to the complainant the price, or, as the case may be, the
charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the

consumer for any loss or injury suffered by the consumer due to the
negligence of the opposite party: provided that the District Forum
shall have the power to grant punitive damages in such circumstances
as it deems fit;

(e) to remove the defects in goods or deficiencies in the services in

question;

(f) to discontinue the unfair trade practice or the restrictive trade practice
or not to repeat them

(g) not to offer the hazardous goods for sale;

(h) to withdraw the hazardous goods from being offered for sale;

(ha) to cease manufacture of hazardous goods and to desist from

offering services which are hazardous in nature;

(hb) to pay such sum as may be determined by it, if it is of the opinion

that loss or injury has been suffered by a large number of consumers
who are not identifiable conveniently.

Provided that the minimum amount of sum so payable shall not be less
than five per cent of the value of such defective goods sold or services
provided, as the case may be, to such consumers:

Provided further that the amount so obtained shall be credited in favour

of such person and utilized in such manner as may be prescribed;

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(hc) to issue corrective advertisement to neutralize the effect of

misleading advertisement at the cost of the opposite party responsible
for issuing such misleading advertisement;

(i) to provide for adequate costs to parties.”

4.3.4 Procedure Followed by the National Commission

The Consumer Protection Act 1986, the Consumer Protection Rules 1987 and
the Consumer Protection Regulations 2005 prescribe the procedure for filing
complaints and their disposal.

4.3.5 Manner of Lodging Complaint

As per section 14(1) of the Consumer Protection Rules, 1987 a complaint

containing the following particulars shall be presented by the complainant in
person or by his agent to the National Commission or be sent by registered
post, addressed to the National Commission:

(a) The name, description and the address of the complainant;

(b)The name, description and address of the opposite party or parties, as the
case may be, so far as they can be ascertained;

(c) The facts relating to the complaint and when and where it arose;

(d)Documents in support of the allegations contained in the complaint;

(e) The relief which the complainant claims.

(1A) Every complaint under sub-rule (1) shall be accompanied by the relevant
fee as is specified in rule 9A.

(1B) Every complaint under sub-rule (1) shall be filed in quadruplicate or

with such number of copies as may be required by the National Commission.

4.3.6 Method Followed by Commission

According to section 14(3) of the Consumer Protection Rules 1986, on the

date of hearing or any other date to which hearing could be adjourned, it shall

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be obligatory for the parties or their agents to appear before the National
Commission. Where the complainant or his agents fails to appear before the
National Commission on such days, the National Commission may in its
discretion either dismiss the complaint for default or decide it on merits.
Where the opposite party or its agent fails to appear on the date of hearing the
National Commission may decide the complaint ex-parte.

4.3.7 Time Frame

As per section 14(4) of the Consumer Protection Rules, 1987 the National
Commission shall decide the complaint within the period of three months for
the date of notice received by the opposite party where complaint does not
require analysis or testing of commodities and within five months if it
requires analysis or testing of commodities.

If the complaint is disposed after the period prescribed in sub-rule (4), the
National Commission shall record in writing the reasons for the delay in such
disposal.

4.3.8 Appeal

If the medical professional or the patient is aggrieved with the order of the
commission, he may take recourse of appeal. One can appeal to a State
Commission if dissatisfied by the order of District Forum. Similarly, one can
make an appeal to the National Commission if aggrieved by the order of State
Commission.

Section 23 of Consumer Protection Act 1986 states that any person who is
aggrieved by an order of National Commission may go to an appeal against
such order to the Supreme Court within a period of 30 days from the date of
such order. Although, the Supreme Court may entertain an appeal after the
period of thirty days if it is satisfied that there was sufficient cause for not
filing it within that period.

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A court fee is required to be paid in the form of a demand draft from a

nationalized bank. The court fee is as follows46-

Appeal against the order of District Forum: 50 per cent of the amount
awarded or Rs 25,000, whichever is less,

Appeal against order of State Commission: 50 per cent of the amount

awarded or Rs 35,000, whichever is less, and

Appeal against order of National Commission: 50 per cent of the amount

awarded or Rs 50,000, whichever is less.

A fixed court fee of Rs 250 is required while filing an appeal at the

Supreme Court.47

4.3.9 Limitation

Section 24A of Consumer Protection Act states that a claim under Consumer
Protection Act has to be filed within a period of two years from the date on
which cause of action has arisen. Provided that a complaint may be
entertained after the aforesaid period if complainant satisfies the concerned
fora that he had sufficient cause for not filing the complaint within such
period.

In V.N. Shrikhande (Dr.) v. Anita Sena Fernandes48, the Supreme Court

rejected the claim as cause of action arose in 1993 after the surgery but
complainant filed the complaint in 2002 by taking plea of discovery rule. The
Supreme Court does not give the benefit of discovery rule and rejected the
claim and held “In cases of medical negligence, no strait jacket formula can
be applied for determining as to when the cause of action has accrued to the
customer. Each case is to be decided on its own facts. If the effect of

46 T.K.Koley, Medical Negligence and the Law in India- Duties, Responsibilities, Rights187
(OUP, New Delhi, 3rd edn., 2014).
47 Ibid.
48 AIR 2011 SC 212.
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negligence on the doctor‟s part or any person associated with him is patent,
the cause of action will be deemed to have arisen on the date when the act of
negligence was done. If, on the other hand, the effect of negligence is latent,
then the cause of action will arise on the date when the patient or his
representative-complainant discovers the harm/injury caused due to such act
or the date when the patient or his representative-complainant could have, by
exercise of reasonable diligence discovered the act constituting negligence.”

4.3.10 Applicability of Civil Procedure Code to Consumer For a

Section 13(4) of the CPA 1986 states that consumer foras have the same
powers as are vested in civil court under the code of civil procedure in respect
of following matters-

(i) Summoning and attendance of any defendant or witness and examining

the witness on oath,

(ii) The discovery and production of any document or other material object
producible as evidence,

(iii) The reception of evidence on affidavits,

(iv) the requisitioning of the report of the concerned analysis or test from
the appropriate laboratory or form any other relevant source,

(v) issuing of any commission for the examination of any witness, and

(vi) any other matter which may be prescribed.

Power to Receive Affidavits

A civil court is empowered to order to anyone to prove any fact by affidavit under
section 30 (c) of Code of Civil Procedure. By virtue of section 13(4)(iii) of CPA
1986, the consumer forum is empowered to receive evidence by means of
affidavits.

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In J.J.Merchant and others v. Shrinath Chaturvedi49 Supreme Court held that “in
view of the necessity of expeditious disposal of consumer disputes, that though
this power of examining witness is conferred on consumer foras, examination of
witnesses in the fora is not mandatory and that the evidence can be taken by
affidavits.”

4.4 Misuse of Consumer Protection Act

The Consumer Protection Act was promulgated to safeguard the interests of its
consumers. Its easy procedure and quick remedy led to its misuse. Today, it seems
that unscrupulous patients use this act as a tool of oppression and file frivolous and
vexatious complaints. However, sufficient protection is also given by the Consumer
Protection Act to those who act in good faith. As per section 26 of the CPA, these
kind of frivolous and vexatious complaints shall be dismissed.

Section 26 of Consumer Protection Act 1986 states : “Where a compliant instituted

before the District Forum, the State Commission or, as the case may be, the National
Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded
in writing, dismiss the complaint and make an order that the complainant shall pay to
the opposite party such cost, not exceeding ten thousand rupees, as may be specified
in the order”.

In K. Jayaraman v. Poona Hospital and Research Centre and others50 the patient
was admitted to Poona Hospital complaining that he developed chest pain. He
complained that there was a substantial delay to shift him in ICC and started his
treatment. This delay could have resulted in severe complications, even the death. He
complained the ceiling fans, emergency bell etc were in poor condition and not
working. Hence, he claimed a compensation of worth Rs 10 lakh. The pleas which
was taken by the defendant doctors as- There was no delay in treatment. It was their
treatment that just eight days, patient was discharged who was suffering from

49 AIR 2002 SC 2931.

50 3(1993) CPJ 70 NCDRC.
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myocardial infarction, the hospital disputed the allegations regarding the facilities in
ICCU. It was also pleaded that patient failed to show any damage to his heart.

The NCDRC held that complaint was malafide, frivolous, vexatious and violation of
provisions of Consumer Protection Act. The case was dismissed and complainant
directed to pay sum of Rs 10,000 as costs to the hospital.

In Sachin Aggarwal v. Dr. Ashok Arora51 the Haryana Commission observed that
“...easy and inexpensive nature of consumer jurisdiction should not be allowed to
become a vicious weapon in the hands of careless or unscrupulous patient to harass
the medical professional without good and adequate cause. The complaint is
therefore dismissed and cost of Rs 2000 is given to the opposite party form the
complainant”.

4.5 Problems Encountered with Consumer Protection Act to Deal with

Cases of Medical Negligence

4.5.1 Free From Legal Hurdles

The Consumer Protection Act is enacted with the intention of making the
redressal of consumer disputes easier without fulfilling the necessary legal
formalities as there is no need to a counsel in a consumer forum. Consumer
may himself present their case before the consumer fora without the aid of the
counsel. However, this does not always suitable to the complainant. Although
the proceeding before a consumer fora are much simpler, they are
nevertheless judicial proceedings and the fora are vested with the powers of a
civil court. Moreover, the consumer foras are headed by retired judges of
District Court, High Court who intentionally follow judicial protocols. This
often puts the complainant who is presenting his case without engaging the
services of a lawyer in a disadvantageous position especially when the other
party is represented by the counsel.

4.5.2 Lack of Medical Knowledge

51 1993(1) CPJ 113 Haryana.

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The composition of consumer disputes redressal agencies is such that it lacks

the representation from medical field. Section 10, 16 and 20 of Consumer
Protection Act mandated that each commission consists of the person having
adequate knowledge and experience in dealing with the problems relating to
economics, law, commerce, accountancy, industry, public affairs or
administration. So, in the case of highly technical issues of medical science
which brought before the consumer fora are referred to medical board and
councils for their opinion and their recommendations go a long way in
determining the outcomes of such proceedings.

4.6 Computation of Compensation by Consumer Fora: The Multiplier

Method
Consumer fora have the power of awarding the compensation in cases of any loss or
damage suffered by complainant due to the negligence of medical professional.

Generally, the „multiplier method‟ is used to compute compensation under the Motor
Vehicles Act 1988 while calculating the compensation to be awarded in cases of
medical negligence.

“The multiplier method uses two numbers- the multiplicand and the multiplier and
multiplies them to arrive at the compensation. The multiplicand is the amount of
compensation determined for every year‟s loss of earning. Thus if the monthly
income of the deceased is Rs 1000, the yearly income would be Rs 1000 x 12= Rs
12,000. 1/3 of this amount is subtracted as cost of living and hence the multiplicand
arrived at would be Rs 12,000-1/3 of 12,000= Rs 8000. In the computation of
compensation to be awarded in cases of medical negligence, the table given in the
second schedule to the Motor Vehicles Act 1988 is used which has a predefined list
of multipliers and multiplicands. The multipliers vary from 5 to 18 depending on the
age, earning capacity and dependents of the deceased victim (or the person aggrieved
due to medical negligence). If somebody dies at 65 years, the multiplier of 5 is
adopted while for a deceased person aged about 25-30 years the highest multiplier of

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18 is adopted. The rationale behind this is that the earning capacity of an individual
is inversely proportional to his age”.52

The Apex Court in watershed Kunal Saha’s case53 rejected the multiplier method and
observed that “the use of multiplier method would be detrimental to society since as
per the rules of the multiplier method the notional income of Rs 15,000 per year
would be taken as the multiplicand. The court noted that in case the victim of
medical negligence has no income then a multiplier of 18 would be used which is the
highest multiplier used under the provisions of section 163 A of the Motor Vehicles
Act read with second schedule. Thus, if a child, housewife or other non-working
person falls prey to reckless medical treatment the maximum pecuniary damages that
would be awarded to the victim would be only Rs 1.8 lakh”. By noting above, the
Supreme Court enhanced the multiplier to 30 in this case. Total amount of Rs.
6,08,00,550/- is awarded as a compensation with interest at 6 % per annum for nearly
15 years.

4.7 Adjudicatory Power of Consumer Fora in respect of Medical

Negligence cases-
It is generally argued that consumer foras are not appropriate for trial of medical
negligence cases because of lack of medical knowledge. However, this contention is
rejected by Supreme Court in V.P. Shanta’s case54and observed members of
consumer foras are well versed with law and are well qualified to decide a medical
negligence suit. It held that “the President of the District Forum is required to be a
person who is or who has been or is qualified to be a District Judge and the President
of State Commission is required to be a person who is or who has been the judge of
the High Court and the President of the National Commission is required to be a
person who is or who has been a judge of the Supreme Court, which means that all

52 B. Sandeepa Bhat (ed.), Reflections on Medical Law and Ethics in India 279 (Eastern
Law House, Kolkata, 2016).
53 Dr. Balram Prasad v. Dr. Kunal Saha (2014)1 SCC 384.
54 AIR 1996 SC 550.
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the Consumer Disputes Redressal Agencies are headed by a person who is well
versed in law and has considerable judicial or legal experience. It has, however, been
submitted that in case there is difference of opinion, the opinion of the majority is to
prevail and, therefore, the President may be out-voted by the other members and that
there is no requirement that the members should have adequate knowledge or
experience in dealing with problems relating to medicine. It is no doubt true that the
decisions of the District Forum as well as the State Commission and the National
Commission have to be taken by majority and it may be possible in some cases that
the President will have a bearing on the deliberations of these Agencies and their
decisions. As regards the absence of a requirement about a member having adequate
knowledge or experience in dealing with the problems relating to medicine it may be
stated that the persons to be chosen as members are required to have knowledge and
experience in dealing with problems relating to various fields connected with the
object and purpose of the Act, viz., protection and interests of the consumers……….
It cannot, therefore, be said that the composition of the Consumer Disputes Redressal
Agencies is such as to render than unsuitable for adjudicating on issues arising in a
complaint regarding deficiency in service rendered by a medical practitioner.”

4.8 Summary Procedure under the Act

Consumer Courts should be shorn of all technicalities and the cases in these courts
should be decided by adopting summary procedure i.e. without too many nuances of
law and procedural glitches. In V.P.Shants’s case55the Supreme Court held that “It is
no doubt true that sometimes complicated questions requiring recording of evidence
of experts may arise in a complaint about deficiency in service based on the ground
of negligence in rendering medical services by a medical practitioner; but this would
not be so in all complaints about deficiency in rendering services by a medical
practitioner. There may be cases which do not raise such complicated questions and
the deficiency in service may be due to obvious faults which can be easily
established such as removal of the wrong limb or the performance of an operation on

55 Ibid.
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the wrong patient or giving injection of a drug to which the patient in allergic without
looking into the outpatient or giving injection of a drug to which the patient allergic
without looking into the out patient card containing the warning [as in Chinkeow v.
Government of Malaysia, (1967) 1 WLR 813 P.C.] or use of wrong gas during the
course of an anesthetic or leaving inside the patient swabs or other items of operating
equipment after surgery. One often reads about such incidents in the newspapers.
The issues arising in the complaints in such cases can be speedily disposed of by the
procedure that is being followed by the Consumer Disputes Redressal Agencies and
there is no reason why complaints regarding deficiency in service in such cases
should not be adjudicated by the Agencies under the Act.”

In J.J. Merchant v. Shrinath Chaturvedi56, the Supreme Court clarified the situation
and emphasized to take recourse of consumer forum to speedy disposal of case and
held that “the contention that such complicated questions of facts cannot be decided
in summary proceedings…..requires to be rejected because under the Act, for
summary or speedy trail, exhaustive procedure in conformity with the principles of
natural justice is provided. Therefore, merely because it is mentioned that
commission or forum is required to have summary trial would hardly be a ground for
directing the consumer to approach the Civil Court. For trial to be just and reasonable
long drawn delayed procedure, giving ample opportunity to the litigant to harass the
aggrieved other side, is not necessary. It should be kept in mind that legislature has
provided alternative, efficacious, simple, inexpensive and speedy remedy to the
consumers and that should not be curtailed on such ground. It would also be totally
wrong assumption that because summary trial is provided, justice cannot be done
when some questions of facts are required to be dealt with or decided. The Act
provides sufficient safeguards.”

56 2002 (6) SCC 635.

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4.9 New Consumer Protection Bill Introduced in Lok Sabha57

The government introduced new Consumer Protection Bill, 2018 in the Lok Sabha
on 05.01.2018. Although the 1986 Act has served its purpose to a considerable extent
but the disposal of cases has not been fast due to various constraints and new
development in society. Several shortcomings have been noticed. The globalization,
rapid development of e-commerce, misleading advertisements, tele-marketing,
wrong delivery of products pose new challenges to the consumers. In view of
changing circumstances, new bill is the need of the time.

The salient features of the Bill are as follows-

(1) Central Consumer Protection Authority (CCPA) is established to promote,

protect and enforce the rights of the consumers.

(2) The pecuniary jurisdiction of consumer dispute redressal foras is also

extended.

(3) The new bill introduces an express provision in respect of Unfair Contracts,
conferring jurisdiction on the state and national commissions to entertain such
complaints.

(4) Provision of mediation is also introduced to make the process of dispute

adjudication simpler and quicker.

(5) It also seeks to establish an authority to safeguard consumer rights and

provision for penalty and jail in case of adulteration and misleading
advertisements.

(6) The concept of Product liability i.e. liability of manufacturer of product or

producer or even seller is also introduced.

57 Available at: https://economictimes.indiatimes.com/news/politics-and-nation/new-

consumer-protection-bill-introduced-in-lok-sabha/articleshow/62383641.cms (last visited
on August 03, 2018).
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Its goal is to simply the consumer dispute adjudication process by including the
provisions for e-filing and provisions for hearing or examination through video
conferencing.

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