Topic: Indian Medical Association vs V.P. Shantha & Ors

Indian Medical Association vs V.P. Shantha & Ors
Equivalent citations: 1996 AIR 550, 1995 SCC (6) 651 - Bench: Agrawal, S.C. (J) - Date of Judgment:  13 November, 1995

PETITIONER:
INDIAN MEDICAL ASSOCIATION

    Vs.

RESPONDENT:
V.P. SHANTHA & ORS.

DATE OF JUDGMENT13/11/1995

BENCH:
AGRAWAL, S.C. (J)
BENCH:
AGRAWAL, S.C. (J)
KULDIP SINGH (J)
HANSARIA B.L. (J)

CITATION:
1996 AIR  550          1995 SCC  (6) 651
JT 1995 (8)   119      1995 SCALE  (6)273


ACT:



HEADNOTE:



JUDGMENT:
J U D G M E N T S.C. AGRAWAL, J. :

Leave granted in SLP (C) Nos. 18497/93 and 21755/94. Delay condoned    and leave granted in SLP (C)    Nos. 18445- 73/94.

These appeals, special leave petitions and the    Writ Petition raise    a common question, viz., whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering 'service' under Section 2(1)(o) of the Consumer Protection Act, 1986    (hereinafter referred to as 'the Act']. Connected with this question is the question whether the service rendered at a hospital/nursing home can be regarded as 'service' under Section 2(1)(o) of the Act. These questions    have been considered by various High Courts as well    as by    the National Consumer Disputes Redressal Commission [hereinafter referred to    as 'the National Commission'].

In Dr. A.S. Chandra v. Union of India, (1992) 1 Andhra Law Times 713, a Division Bench of Andhra Pradesh High Court has held that service rendered for consideration by private medical practitioners,    private hospitals and nursing homes must be    construed as 'service' for the purpose of Section 2(1)(d) of the Act and the persons availing such services are 'consumers' within the meaning of Section 2(1)(d) of the Act.

In Dr.C.S.    Subramanian v.    Kumarasamy & Anr., (1994) 1 MLJ 438, a Division Bench of    the Madras High Court    has, however, taken    a different view. It has been held that the services rendered to a patient by a medical practitioner or by a hospital by way    of diagnosis and treatment,    both medicinal and surgical, would not come within the definition of 'service' under Section 2(1)(o) of the Act and a patient who undergoes treatment under    a medical practitioner or a hospital by way of diagnosis and treatment, both medical and surgical, cannot be considered to be a `consumer' within the meaning of Section 2(1)(d) of the Act; but    the medical practitioners or hospitals undertaking and providing paramedical services of all kinds and categories cannot claim similar immunity from the provisions of the Act and that they would fall,    to the    extent of such para-medical services rendered by    them,    within    the definition of `service' and a person availing of such service would be a `consumer' within the meaning    of the    Act. C.A.Nos. 4664- 65/94 and Civil Appeal    arising out of SLP(C) No. 21775/94 filed by the complainants and Civil Appeals arising out of SLP(C) Nos. 18445-73/94 filed    by the    Union of India    are directed against the said judgment of the Madras High Court.

The National Commission by its judgment and order dated December 15, 1989 in First Appeal No.2 of 1989 has held that persons who avail themselves of the facility    of medical treatment in Government hospitals are not "consumers" and the said facility offered in the Government hospitals cannot be regarded as service    "hired" for "consideration". It has been held that the payment of    direct or indirect taxes by the public does not constitute "constitute "consideration" paid for hiring the services rendered    in the Government hospitals. It has also been held that contribution made by a Government employee in the Central Government Health Scheme or such other similar Scheme does not make him a "consumer" within the meaning of    the Act. Civil Appeal arising out of SLP(C) No.18497/93 has been filed by    Consumer Unity Trust Society, a recognised consumer    association, against    this judgment of the National Commission.

By judgment dated April 21, 1992 in First Appeal Nos. 48 and 94 of 1991, the National Commission has held 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. It has    also    been held that the legal representatives of the deceased patients who were undergoing treatment in the hospital are `consumers' under the Act and are competent to maintain the complaint. C.A. Nos. 688/93 and 689/93 filed by the Indian Medical Association and SLP (C) Nos. 6885 and 6950/92 filed by M/s Cosmopolitan Hospital are directed against the said    judgment of the National Commission. The said judgment    dated April 21, 1992    was followed by the National Commission in its judgment dated November 16, 1992 in First Appeal No. 97 of 1991 [Dr. Sr. Louie &    Anr. v. Smt. Kannolil Pathumma & Anr.]. SLP    No. 351/93 has been filed    by Josgiri Hospital and Nursing Home against the said judgment of the National Commission.

By judgment dated May 3, 1993 in O.P.No. 93/92, the National Commission has held that since the treatment that was given to the complainant's deceased husband in    the nursing home belonging to the opposite party was totally free of    any charge, it did not constitute `service' as defined under the Act    and the complainant was not entitled to seek    any relief under the    Act. C.A.No. 254/94 has been filed by the complainant against the    said judgment of the National Commission.

Writ Petition No. 16 of 1994 has been    filed under Article 32 of the Constitution by Cosmopolitan Hospital (P) Ltd., and Dr. K. Venogopolan Nair [petitioners in SLP(C) Nos. 6885 and 6950/92] wherein the said petitioners    have assailed the validity of the provisions of the Act, insofar as they are held to be applicable to the medical profession, as being violative of    Articles 14 and 19(1)(g) of the Constitution.

Shri K.Parasaran, Shri Harish Salve, Shri A.M. Singhvi, Shri Krishnamani and Shri S.Balakrishnan have addressed the court on behalf of the medical profession and the hospitals and Shri Rajeev Dhavan has presented the case of    the complainants. Before    we proceed to deal with their contentions we would briefly take note of the background and the scheme of the Act.

On April 9, 1985,    the General Assembly of the United Nations, by Consumer    Protection Resolution    No. 39/248, adopted    the guidelines to    provide    a framework    for Governments, particularly those of developing countries, to use in    elaborating and    strengthening    consumer protection policies and    legislation. The objectives of the    said guidelines include assisting countries in achieving or maintaining adequate protection for their population as consumers and encouraging high levels of ethical conduct for those engaged in the production and distribution of goods and services to the consumers. The legitimate needs which the guidelines    are intended to meet include the protection of consumers from hazards to their health and safety and availability of    effective consumer redress. Keeping in view the said guidelines, the Act was enacted by Parliament to provide for the better protection of the interests of consumers and for that    purpose to make provision for the establishment of consumers councils and other    authorities for the settlement of    consumers' disputes and for matters connected therewith. The Act sets up a three-tier structure for the    redressal of consumer grievances. At    the lowest level, i.e., the District level, is the Consumer Disputes Redressal Forum    known as `the District Forum'; at the next higher level,    i.e., the State level, is the Consumer Disputes Redressal Commission known as    `the State Commission' and at the highest level is the National Commission. [Section 9]. The jurisdiction of these three Consumer Disputes Redressal    Agencies is based on    the pecuniary limit    of the    claim made by the complainant. An appellees to the State    Commission against an order made by the District Forum [Section 15] and an appeal lies to the National Commission against an    order    made by the State Commission on a complaint filed before it or in an appeal against the order passed by the District Forum. [Section 19]. The State Commission can exercise revisional powers on grounds similar    to those contained in    Section 115 CPC in relation to a consumer dispute pending before or decided by a District Forum [Section 17(b)] and the National Commission has similar revisional jurisdiction in respect of a consumer dispute pending    before or decided by    a State Commission. [Section 21(b)]. Further, there is a provision for appeal to this Court from an order made by the National Commission on a complaint or on an appeal against the order of a State Commission. [Section 23]. By virtue of the definition of complainant in    Section 2(1)(c), the Act affords protection to the    consumer against unfair trade practice or a restricitive trade practice adopted by any trader, defect in the goods bought or agreed to    be bought by the consumer, deficiency in the service hired or availed of or agreed to be hired or availed of by the consumer, charging by a trader price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods    and offering for sale to public, goods which will be hazardous    to life and safety when used, in contravention of the provisions of any law for the time being in force requiring    traders    to display information in    regard to the contents, manner and effect of use of    such goods. The expression "complainant", as defined in Section 2(1)(b), is comprehensive to enable the consumer as well    as any    voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force, or the Central Government or any State Government or one or more consumers where there are numerous consumers having the same interest, to file    a complaint before the appropriate Consumer Disputes Redressal Agency and the consumer dispute raised in such complaint is settled by the    said agency in accordance with the procedure laid down in    Section 13 of the Act which    prescribes that    the District Forum    [as well as the State Commission and    the National Commission] shall have the same power as are vested in a civil court under the Code of Civil Procedure in respect    of summoning    and enforcing    attendance of    any defendant or witness and examining the witness on oath; discovery and production of any document or other material object producible as evidence; the reception of evidence on affidavits; the requisitioning of    the report of    the concerned analysis or test from the appropriate laboratory or from any other relevant source; issuing of any commission for the    examination of    any witness; and any    other matter which may be prescribed. Section 14 makes provisions for the nature of reliefs that can be granted to the complainant on such a    complaint. 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. [Section 3].

In this group of cases we are not concerned with goods and we    are only concerned with rendering of services. Since the Act    gives protection to the consumer in    respect of service rendered to him, the expression "service" in the Act has to    be construed keeping in view    the definition of "consumer" in the Act.    It is,    therefore, necessary to set out the definition of the expression `consumer' contained in Section 2(1)(d)    insofar as it relates    to services and the definition of the expression `service' contained in Section 2(1)(o) of the Act. The said provisions are as follows :

"Section 2(1)(d) "consumer" means any person who, -
(i) omitted
(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 service for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Explanation. - Omitted"
"Section 2(1) (o) : "service" means service of any description which is made available to the 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, amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service;"
The words    "or avails of" after the word    "hires" in Section 2(1)(d)(ii) and the words "housing construction" in Section 2(1)(o) were inserted by the Act 50 of 1993.

The definition of `service' 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 of 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 service.

The definition of `service' as contained    in Section 2(1)(o) of the Act has been construed by this Court in Lucknow Development Authority v. M.K. Gupta,    1994 (1) SCC

243. After pointing out that the said definition is in three parts, the Court has observed :

"The main clause itself is very wide. It applies to any service made available to potential users. The words `any ' and `potential' are significant. Both are of wide amplitude. The word `any' dictionarily means; one or some or all', In Black's Law Dictionary it is explained thus, "word `any' has a diversity of meaning and may be employed to indicate `all' or `every' as well as `some' or `one' and its meaning in a given statue depends upon the context and the subject- matter of the statute". The use of the word `any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all. The other word `potential' is again very wide. In Oxford Dictionary it is defined as `capable of coming into being, possibility'. In Black's Law Dictionary it is defined "existing in possibility but not in act. Naturally and probably expected to come into existence at some future time, though not now existing; for example, the future product of grain or trees already planted, or the successive future instalments or payments on a contract or engagement already made." In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is    thus very wide and extends to any or all actual or potential users."
[p.255] The contention that the entire objective of the Act is to protect the consumer against malpractices in business was rejected with the observations :

"The argument proceeded on complete misapprehension of the purpose of Act and even its explicit language. In fact the Act requires provider of service to be more objective and caretaking."
(p.256) Referring to the inclusive part of the definition it was said :

"The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. so any service except when it is free of charge or under a constraint of personal service is included in it." [p.257] In that case the    Court was dealing with the question whether housing    construction could be regarded as service under Section 2(1)(o) of the Act. While the    matter    was pending in this Court,    "housing construction" was inserted in the    inclusive part    by Ordinance No. 24 of 1993. Holding that housing activity is a service and was covered by the main part of the definition, the Court observed :
"..... the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer."
[p.256] In    the present    case the inclusive part of    the definition of    "service" is not applicable    and we    are required to deal with the questions falling    for consideration in the    light of the    main part and    the exclusionary part of the definition. The exclusionary part will require consideration only if it is found that in the matter of consultation, diagnosis and treatment a medical practitioner or    a hospital/nursing home renders a service falling within    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). This determination has to be made in the light of the aforementioned observations in    Lucknow Development Authority (supra). We will first examine this question in relation to medical practitioners.
It    has been contended    that in law    there is a distinction between a profession and an occupation and that while a    person engaged    in an    occupation renders service which falls within the ambit of Section 2(1)(o) the service rendered by a person belonging to a profession does not fall within the ambit of the said    provision and, therefore, medical practitioners who belong to the medical profession are not    covered by the provisions of the Act. It has been urged that medical practitioners are governed by    the provisions of the Indian Medical Council Act, 1956 and the Code of Medical Ethics made by the Medical Council of India, as approved by the Government of India under Section 3 of the Indian Medical Council Act, 1956 which regulates their conduct as members of    the medical profession and provides for disciplinary action by the Medical Council of India and/or    State    Medical    Councils against a    person    for professional misconduct.

While expressing    his reluctance to    propound a comprehensive definition of a `profession', Scrutton    L.J. has said " `profession',in the present use    of language involves the idea of an occupation requiring either purely intellectual skill, or of manual skill controlled, as in painting and sculpture, or surgery, by the    intellectual skill of the operator,    as distinguished from an occupation which is substantially the production or sale or arrangement for the    production or    sale of    commodities. The line of demarcation may vary    from    time to time. The    word `profession' used to be confined to    the three learned professions, the Church, Medicine and Law. It has now, I think, a wider meaning". [See : Commissioners of Inland Revenue v. Maxse, 1919 1 K.B. 647 at p.657].

According to Rupert M. Jackson and John L.Powell the occupations which are regarded    as professions have    four characteristice, viz.,

i) the nature of    the work which is    skilled    and specialized and    a substantial    part is mental rather    than manual;

ii) commitment to moral principles which go beyond    the general duty of honesty and a wider duty to community which may transcend the duty to a particular client or patient;

iii) professional association which regulates admission and seeks to uphold the standards of the    profession through professional codes on matters of conduct and ethics; and

iv) high status in the community.

The learned authors have stated that    during    the twentieth century an increasing number of occupations have been seeking and achieving "professional" status and that this has led inevitably to some blurring of    the features which traditional distinguish the professions    from other occupations. In the    context    of the law    relating to Professional Negligence    the learned authors have accorded professional status to seven specific occupations, namely,

(i) architects, engineers and quantity surveyors,    (ii) surveyors, (iii) accountants, (iv) solicitors,    (v) barristers, (vi) medical practitioners    and (vii) insurance brokers. [See : Jackson & Powell on Professional Negligence, paras 1-01 and 1-03, 3rd Ed.1.].

In the matter of    professional liability    professions differ    from other occupations for    the reason    that professions operate in    spheres where    success cannot be achieved in every case    and very often success or failure depends upon factors beyond the professional man's control. In devising a rational    approach to professional liabilty which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the courts is    to require that professional    men should possess a certain minimum degree of competence and that they should exercise    reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in    tort as well as in contract to exercise reasonable care in giving advice or performing services. [See : Jackson & Powell (supra), paras 1-04, 1-05 and 1-56]. Immunity from suit was enjoyed by certain profession on the grounds of public interest. The trend is towards    narrowing of    such immunity and it is no longer    available to architects in respect of certificates negligently given and to mutual valuers. Earlier, barristers were enjoying complete immunity but now    even for them the filed is limited to work done in court and to a    small category    of pre-trial work which is directly related to what transpires in court. [See : Jackson & Powell, (supra), para 1-66; Saif Ali v. Sidney Mitchell & Co., (1980) 1 A.C. 198; Rees v. Sinclair (1974) 1 N.Z.L.R. 180; Giannarelli v. Wraith (1988) 81    A.L.R. 417]. Medical practitioners do not enjoy any immunity and they can be sued in contract or tort on the ground that they have failed to exercise reasonable skill and care.

It would thus appear that 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 Medical Council of India and/or State Medical Councils is no solace to    the person who has suffered due to their negligence and    the right of such person to seek redress is not affected.

Referring to the changing    position with regard to the relationship between the medical practitioners and    the patients in the United Kingdom, it has been said :

"Where, then, does the doctor stand today in relation to society? To some extent, he is a servant of the public, a public which is widely (though not always well) informed on medical matters. Society is conditioned to distrust paternalism and the modern medical practitioner has little wish to be paternalistic. The new talk is of `producers and consumers' and the concept that `he who pays the piper calls the tune' is established both within the profession and in its relationships with patients. The competent patient's inalienable rights to understand his treatment and to accept or refuse it are now well established." (pp.16-17) "Consumerism is now firmly established in medical    practice - and this has been encouraged on a wide scale by government in the United Kingdom through the introduction of `charters'. Complaint is central to this ethos - and the notion that blame must be attributed, and compensated, has a high priority."
(p.192) [Mason & McCall Smith Law and Medical Ethics,4th Edn.] In Arizona    v. Maricopa County Medical Society, 457 US 332 = 73 L.Ed. (2d) 48, two Arizona county medical societies formed two foundations for medical care to promote fee-for- service medicine and    to provide the community with a competitive alternative    to existing health insurance plans and by    agreement amongst the doctors established    the schedule of maximum fees that participating doctors agreed to accept as payment in full    for services performed    for patients insured under plans.    It was held that the maximum fee agreement,    as price fixing agreements, are perse unlawful under the Sherman Act. It was observed :

"Nor does the fact doctors - rather than non-professionals - are the parties to the price    fixing agreements support the respondents' position. ... The respondents claim for relief from the per se rule is simply that the doctors' agreement not to charge certain insureds more than    a fixed price facilitates the successful marketing of an attractive insurance plan. But the claim that the price restraint will make it easier for customers to pay does not distinguish the medical profession from any other provider of goods or services." [pp.
348-49, 61-62] We    are, therefore, unable to subscribe to the view that merely because medical practitioners belong to    the medical profession they are outside the purview of the provisions of the Act    and the services rendered by medical practitioners are not covered by Section 2(1)(o) of the Act.

Shri Harish Salve, appearing for the Indian Medical Association, has urged that having regard to the expression `which is made available to potential    users' contained in Section 2(1)(o)    of the    Act., medical practitioners are not contemplated by parliament to be    covered    within    the provisions of the Act. He has urged that the said expression is indicative of the kind of service the law contemplates, namely, service    of an institutional type which is really a commercial enterprise and open and available to all who seek to avail thereof. In this context, reliance has also been placed on the    word 'hires' in sub-clause (ii) of    the definition of `consumer' contained in Section 2(1)(d) of the Act. We    are unable to uphold    this contention. The    word `hires' in Section 2(1)(d)(ii)    has been used in the same sense as `avails of' as would    be evident from the words `when such services are availed of' in the latter part of Section 2(1)(d)(ii). By inserting the words `or avails of' after the word `hires' in Section    2(1)(d)(ii) by    the Amendment Act of 1993, Parliament has clearly indicated that the word `hires' has been used in the same sense as `avails of'. The said amendment only clarifies what was implicit earlier. The word `use' also means `to avail oneself of'. [See :    Black's Law Dictionary, 6th Edn., at p. 1541]. The word `user' in the expression `which    is made available to potential users' in the definition of `service' in Section 2(1)(o) has to be construed having regard to the definition of `consumer' in Section 2(1)(d)(ii) and, if so construed, it means `availing of    services'. From    the use of the word `potential users' it cannot, therefore, be inferred that the services rendered by    medical practitioners are not contemplated by Parliament to be    covered    within    the expression `service' as contained in Section 2(1)(o).

Shri Harish Salve has also placed reliance on    the definition of the expression `deficiency' as    contained in Section 2(1)(g) of the Act which provides as follows :

"Section 2(1)(g) : "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;"
The submission of Shri Salve is    that under the said clause the deficiency with regard to fault, imperfection, shortcoming or    inadequacy in respect of service has to be ascertained on    the basis of    certain    norms    relating to quality, nature    and manner of performance and that medical services rendered by a medical practitioner cannot be judged on the    basis of any fixed norms and, therefore, a medical practitioner cannot be said to have been covered by    the expression "service" as defined in Section 2(1)(o). We are unable    to agree. While construing    the scope of    the provisions of the Act    in the context of deficiency in service it would be relevant to take note of the provisions contained in Section 14 of the Act    which indicate    the reliefs that can be granted on a complaint filed under the Act. In    respect of deficiency in service, the following reliefs can be granted :

i) return of the charges paid    by the complainant. [Clause

c)]

ii) payment of such amount as may be awarded as compensation to the    consumer for any loss    or injury suffered by    the consumer due to the negligence of the opposite party. [Clause (d)]

iii) removal of the defects or deficiencies in the services in question. [Clause (e)] Section 14(1)(d) would, therefore, indicate that    the compensation to be awarded is for loss or injury suffered by the consumer due to the negligence of the opposite party. A determination about deficiency in service for the purpose of Section 2(1)(g)    has, therefore, to be made by applying the same test as is applied in an action for    damages for negligence. The    standard of cara which is required    from medical practitioners as laid    down by    McNair    J. in    his direction to the jury in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, has been accepted by the House of Lords in a    number of cases. [See : Whitehouse v.Jordan, 1981 (1) WLR 246; Maynard v. West Midlands, Regional Health Authority, 1984    (1) WLR 634 ; Sidaway v. Governors of Bethlem Royal Hospital, 1985 AC 871]. In Bolam (supra) McNair J has said :

"But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." [p.586] In an action for    negligence in tort against a surgeon this Court, in Laxman    Balakrishna Joshi v. Trimbak    Bapu Godbole & Anr., 1969 (1) SCR 206, has held :
"The duties which a doctor owes to his patieint are clear. A person who holds himself out 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, viz., 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 the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law require. [p.213] It is, therefore, not possible to hold that in view of the definition    of "deficiency" as contained    in Section 2(1)(9) medical    partitioners must be treated to be excluded from the ambit of the Act and the service rendered by them is not convered under Section 2(1)(o).
Another contention    that has been urged    by learned counsel appearing for the medical profession    to exclude medical practitioners from the ambit of the Act is that the composition of    the District Forum, the State Commission and the national Commission is such that    they cannot fully appreciate the    complex issues which may arise    for determination and further that the    procedure that is followed by these bodies for determination of issues before them is not    suitable for    the determination of    the complicated questions which arise in respect of claims for negligence in respect of the services    rendered by medical practitioners. The provisions with regard to the composition of the District Forum are contained in Section 10 of the Act which provides    that the President of    the Forum shall be a person who is or who has been or is qualified to be a District Judge and the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience or, or having shown capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration and one of them shall be a woman. Similarly, with regard to the composition of the State Commission, it is provided in Section 16 of the Act that the President    of the Commission shall be a person who is    or who has been a Judge of a High Court appointed by the State Government in consulation with the Chief Justice of the    High Court and that the other two members shall be persons of ability, integrity and standing, having adequate knowledge or experience of, or having    shown    capacity in dealing with, problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, and one of    them shall be    a woman. The    composition of    the National Commission is governed by Section 20 of the Act which provides that the President of the Commission shall be a person who is or who has been a Judge of the Supreme Court to be appointed by the Central Government after consulation with the Chief Justice of India and four other members shall be persons of ability, integrity and standing having adequate knowledge or experience of, or having shown capacity in dealing with, problems relating to economics, law, commerce,    accountancy, industry, public    affairs or administration and one of them shall    be a woman. It will thus be    seen 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 the 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 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 membrs and    that there is no requirement that the membrs 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    may be in minority. But the presence of a person well versed in law as 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 relaing to various fields connected with the object    and purpose of the    Act, viz., protection    and interests of    the consumers.    The said knowledge    and experience would enable them to handle the consumer disputes coming up before them for settlement in consonance with the requirement of    the Act. To say that the members must have adequate knowledge or experience in the field to which the goods or services, in    respect of which the complaint is made, are related would lead to impossible situations. At one time there will be two members in the District Forum and they would have knowledge or experience in two fields which would mean that complaints in respect of goods or services relating to other fields would be beyond the purview of the District Forum.    Similarly in the State Commission there may be members having knowledge or experience in fields other than the fields in which the members of the District Forum have knowledge    or experience.    It would mean that the goods or services in respect    of which the    District Forum    can enteration a complaint will be outside the purview of the State Commission. Same will be the position in respect of the National Commission. Since    the goods or    services in respect of which complaint can be filed under the Act may relate to number of fields it    cannot be expected that the members of the Consumer Disputes Redressal Agencies    must have experties    in the    field to which the goods or services in respect of which complaint is filed, are related. It will be for    the parties to place the necessary material and the knowledge and experience which the members will have in the fields indicated in the Act would enable them to arrive at their findings    on the    basis of that material. It cannot, therefore, be said that since the members of the Consumer Disputes Redressal Agencies    are not required to    have knowledge and experience in medicine, they are not in a position to deal with issues which may arise before them in proceedings arising out of complaints about the deficiency in service rendered by medical partitioners.
Discussing the role of lay persons in decision making, Prof. White has referred to two divergent views. One view holds that lay adjudicators are superior to    professional judges in the application of general standars of conduct, in their notions of reasonableness, fairness and good faith and that they act as    `an antidote    against excessive technicality' and `some guarantee that the law does not diverge too far from reality'. The other view, however, is that since they are not experts, lay decision makers present a very    real danger that the dispute may not be resolved in accordance with the    prescribed rules of law and    the adjudication of    claims may be based on whether the claimant is seen    as deserving rather than on the legal rules of entitlement. Prof. White has indicated his preference for a Tribunal composed of a    lawyer, as Chairman, and two    lay members. Such a Tribunal, according to Prof. White, would present an opportunity to develop a model of adjudication that combines the merits of lay decision making with legal competence and participation of lay membrs would lead to general public confidence in the fairness of the process and widen the social experience represented by the decision makers. Prof. White says that apart from their breadth of experience, the key role of lay members would be in ensuring that procedures do not become too full of mystery and ensure that litigants    before    them are not reduced    to passive spectators in a process designed to resolve their disputes. [See :    Prof. Robin C.A. White : The Administration of Justice, 2nd Edition, P. 345].

In the matter of constituion of the District Forum, the State Commission and    the National Commission the    Act combines with legal competence    the merits of lay decision making by members having knowledge and experience in dealing with problems relating to various fields which are connected with the object and purpose of the Act, namely, protection and interests of the consumers.

Moreover, there is a further safeguard of an appeal against the order made    by the    District Forum to the State Commission and    against the    order    made by the State Commission to the National Commission and a further appeal to this    Court    against the order made by the National Commission. It    cannot, therefore,    be said that    the composition of    the Consumer Disputes Redressal Agencies is such as to render them unsuitable for adjudicating on issues arising in a complaint regarding deficiency    in service rendered by a medical partitioner.

As regards    the procedure    to be    followed by these agencies in the matter of determination of the issues coming up for    consideration it may be stated that under Section 13(2)(b), it is provided that    the District    Forum shall proceed to settle the consumer disputes (i) on the basis of evidence brought to its notice by the complainant and the opposite party,    where the opposite party denies or disputes the allegations    contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum. In Section 13(4) of the Act it is further provided that the District Forum    shall have the same powers as are vested in the civil court under the Code of Civil procedure while trying a suit in respect of the following matters:

"(i) the summoning and enforcing 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 from any other relevant source;
(v) issuing of any commission for the examination of any witness and
(vi) any other matter which may be prescribed."
The same provisions apply to proceedings before the State Commission and    the National Commission. It has been urged that proceedings involving negligence    in the matter of rendering services by a medical parctitioner    would arise complicated questions requiring evidence of experts to be recorded and that the    procedure which is followed    for determination of consumer disputes under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. It is no    doubt    true that sometimes complicate questions requiring recording of evidence of expets may arise    in a complaint about deficiency in service based on the ground of negligence in    rendering medical services by a medical parctitioner; 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 the wrong patient or giving injection of a drug to which the patient is 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 complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to    approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the    consumer to approach the civil court for necessary relief. We are, therefore, unable to hold that on the ground of composition    of the    Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed which by the said Agencies for determining the issues arising before them, the service rendered by the medical practitioners are not intended to be included in the expression `service'as defined in Section 2(1)(0) of the Act.

Keeping in view the wide amplitude of the definition of `service' in the main    part of Section 2(1)(o) as construed by this    Court in Lucknow Development Authority (supra), we find no    plausible reason to cut down the width of that part so as    to exclude the services rendered by a medical practitioner from the ambit of the main part    of Section 2(1)(o).

We may now proceed to consider the exclusionary part of the definition    to see    whether such service is excluded by the said part. The exclusionary part excludes from the main part service rendered (i) free of charge; or (ii) under a contract of personal service.

Shri Salve    has urged that the relationship between a medical    practitioner and the    patient is of trust    and confidence and, therefore, it is in the nature of a contract of personal service and the service rendered by the medical practitioner to    the patient is not `service' under Section 2(1)(o) of the Act. This contention of Shri Salve ignores the well recognised distinction between a `contract of service' and a `contract for services'. [See : Halsbury's Laws of    England, 4th Edn., Vol. 16, para 501; Dharangadhara Chemical Works    Ltd. v. State of Saurashtra, 1957 SCR 152 at p. 157]. A `contract    for services'    implies    a contract whereby    one party undertakes to render services    e.g. professional or technical services, to or for another in the performance of which he is not subject to detailed direction and control but exercises 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. Heath Laundry Co. (1910) 1 K.B. 543; and Dharangadhara Chemical Works (supra) 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.    By affixing the adjective `personal' to the word "service"    the nature of the contracts which    are excluded is not altered. The said adjective only emphasizes that what is sought to be excluded is personal service only. The expression    "contract of    personal service" in    the exclusionary part of Section 2(1)(o) must, therefore, be construed as excluding the services rendered by an employee to his    employer under the contract of personal service from the ambit of the expression "service".

Re: Indian Medical Association vs V.P. Shantha & Ors

It is no doubt true that    the relationship between a medical practitioner and a patient carries within it certain degree of mutual confidence and trust    and, therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship    of master and servant    between the doctor and the patient the    contract between the medical practitioner and his patient cannot be treated as a contract of personal service but is a contract for services and the service rendered by the medical practitioner to his patient under such a contract    is not    covered by the exclusionary part of    the definition    of `service' contained in Section 2(1)(o) of the Act.

Shri Rajeev Dhavan has, however, submitted that    the expression `contract of personal service' contained in Section 2(1)(o)    of the Act has to be confined to employment of domestic servants only. We do not find any merit in this submission. The    expression `personal service' has a    well known legal connotation and has been construed in    the context of the right to seek enforcement of such a contract under the Specific Relief Act. For that purpose a contract of personal service has been held to cover a civil servant, the managing agents of    a company and a professor in    the University. [See : The High    Commissioner for India v. I.M.Lall, (1948) L.R. 75 I.A. 225; Ram Kissendas Dhanuka v. Satya Charan Law, (1949) L.R. 77 I.A. 128; and Dr. S.B. Dutt v. University of Delhi, 1959 SCR 1236]. There can be a contract of personal service if there    is relationship of master and servant between a doctor and the person availing his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression `service' under Section 2(1)(o) of the Act by virtue of the exclusionary clause in the said definition.

The other    part of exclusionary    clause    relates to services rendered "free of charge". 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 everybody availing the said services.
ii) where charges are required to be paid by everybody 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. Doctors 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 a 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 to all the    persons they would clearly fall within the ambit of Section 2(1) (o) of the Act. The third category of doctors and hospitals do provide free service to some of    the patients belonging to the poor class    but the    bulk of the service is rendered to    the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly fall within the ambit of Section 2(1)

(o) of the Act.

The question for    our consideration is    whether    the service rendered to patients fee 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. In this context it is necessary to bear in mind that the Act has been enacted "to provide for the    protection of    the interests of "consumers" in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985. These guidelines refer to "achieving or    maintaining adequate protection for their population as consumers" and "encouraging high levels of ethical conduct for    those engaged in the protection and distribution of goods and services to    the consumers". The protection that    is envisaged by the    Act is, therefore, protection for    consumers as a class.    The word "users" (in plural), in the phrase `potential users' in Section 2(1) (o) of the    Act also gives an indication that consumers as a class are contemplated. The definition of `complainant' contained in Section 2(b) of the Act which includes, under clause (ii), any voluntary consumer association, and clauses

(b) and    (c) of    Section 12 which enable a complaint to be filed by any recognised consumer association or one or more consumers where    there are numerous consumers,    having    the same interest,    on behalf of or for the benefit of    all consumers so interested, also lend support to the view that the Act    seeks to protect the    interests of consumers as a class. To hold otherwise would mean that the protection of the Act    would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are    the people who need    the protection more. It is difficult to    conceive that    the legislature intended to achieve such    a result. Another consequence of adopting a construction, which would restrict the protection    of the    Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of service rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons who are in a position to pay for such service while the standard and quality of such service would be inferior for person who cannot afford to pay for such    service and who avail    the service without payment. Such a consequence would defeat the object of the Act. All persons who avail the services by doctors and hospitals in category (iii), are required to be treated on the same footing irrespective of the fact that some of    them pay for the service and others avail the same free of    charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients    who are not in a position to bear the charges are met out of    the income earned by such doctors and hospitals from services rendered to paying patients. The Government hospitals    may not be commercial in that sense but on the overall consideration of the objectives    and the    scheme of the Act it would not be possible to treat the    Government hospitals differently. We are of    the view that in such a situation    the persons belonging to "poor class" who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the "paying class". 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.

In respect    of the    hospitals/nursing homes (Government and non-Government) falling in    category (i),    i.e., where services are rendered free of charge to everybody availing the services, it has been urged by Shri Dhavan that even though the service rendered at the hospital, being free of charge, does not fall    within the ambit of Section 2(1) (o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives amoluments by way of salary for employment in the hospital. There is no merit in this contention. the medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if    the service, as rendered by    the hospital, does    not fall within the ambit of    Section 2(1)

(o), being free of charge, the same    service cannot be treated as service under Section 2(1)    (o) for the reason that it    has been rendered by    a medical officer in    the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer    by the    hospital administration and the person to whom service is rendered. The salary that is paid by    the hospital administration to the employee medical officer cannot    be regarded as payment made on behalf of the person availing the service or for his benefit so as to make the person availing the service a "consumer" under Section 2(1) (d) in respect of the service rendered    to him.    the service rendered by the employee medical officer to such a person would, therefore, continue to be service rendered free of    charge and would be outside the purview of Section 2(1)(o).

A contention has also been raised that even in    the Government hospitals/health centres/dispensaries where services are rendered free of charge to all the patients the provisions of the Act    shall apply because the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. We do not agree.

The essential characteristics of a tax are that (i) it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law; (ii) it is an imposition made    for public purpose without reference to any special benefit to be conferred on the payer of the tax' and

(iii) it is part of the common burden, the    quantum of imposition upon    the tax payer depends generally upon    his capacity to pay. [See    : The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR    1005 at pp.1040-41]. The tax paid by the person availing the service at a Government hospital cannot be treated as a consideration    or charge for    the service rendered at the said hospital and such service thogh rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer.

Adverting    to the individual doctors employed    and serving in the hospitals, we are of the view that such doctors    working    in    the    hospitals/nursing homes/dispensaries/whether Government or private - belonging to categories (ii) and (iii) above would    be covered by    the definition of "service" under    the Act and as such are amenable to    the provisions of the Act    along with the    management of    the hospital, etc. jointly and severally.

There may,    however, be a case where a person has taken an insurance policy for medi-care whereunder all the charges for consultation, diagnosis and medical treatment are borne by the insurance company. In such    a case    the person receiving the treatment is a beneficiary of    the service which has been rendered to him by the medical practitioner, the payment for which would be made by the insurance company under the insurance policy. The rendering of such service by the medical practitioner cannot be said to    be free of charge and would, therfore, fall within the ambit of the expression `service' in Section 2(1) (o) of the Act. So also there may be cases where as a part of the conditions of service the employer bears the expense of medical treatment of the employee and his family members dependent on him. The service rendered to him by a medical practitioner would not be free    of charge and would, therefore, constitute service under Section 2(1) (o).

Shri A.M.    Singh vi has invited our attention to the following observations    of Lord    Denning M.R. in White house v. Jordan & Anr., (1980) 1 All.E.R. 650 :

"Take heed of what has happened in the United States, 'Medical malpractice' cases there are very worrying, especially as they are tried by juries who have sympathy for the patient and none for the doctor, who is insured. The damages are colossal. The doctors insure but the premiums become very high : and these have to be passed on in fees to the patients. Experienced practitioners are known to have refused to treat patients for fear of being accused of negligence. Young    men are even deterred from entering the profession because of the risks involved. In the intersts of all, we must avoid such consequences in England. Not only must we avoid excessive damages.    We must say, and say firmly, that, in a professional man, an error of judgment is not negligent."
[p.658] Relying on these    observations learned    counsel    has painted a grim picture    that if medical practitioners    are brought within    the purview of the Act the consequence would be huge    increase in medical    expenditure on    account of insurance charges as    well    as tremendous    increase in defensive medicine and that medical practitioners may refuse to attend to medical emergencies and    there    will be no safeguards against frivolous and vexatious complaints    and consequent blackmail.    We do    not entertain such    an apprehension. In the first place, it may be stated that the aforementioned observations of Lord Denning were made in the context of substantive law governing actions for damages on the ground of    negligence against medical practitioners. There too the last sentence in the said observations that "an error of judgment    is not negligent" has not been approved, in appeal, by the House of Lords. [See : 1981 (1) All. E.R. 267]. By holding that medical practitioners fall within the purview of the Act no change is brought about in the substantive law governing claims for compensation on the ground of negligence and the principles which apply to determination of such a claim before the civil court would equally apply to consumer disputes before the Consumer Disputes Redressal Agencies under the Act. The Act only provides an inexpensive and a speedy remedy for adjudication of such    claims. An analytical study of tort litigation in India during the period from 1975 to 1985 made by Prof. Galanter reveals that a total number of 416 tort cases were decided by the High Courts and this Court, as reported in the All    India Reporter, out of which 360 cases related to claims under the Motor Vehicles Act and cases relating to medical malpractice were only    three    in number. [See : Upendra Baxi    and Thomes Paul, Mass Disasters    and Multinational Liability, The Bhopal Case, PP. 214-218]. One of the    factors inhibiting such claims    is the    requirement regarding court fee that must be paid by the plaintiff in an action for damages on    the ground of negligence. Since no court fee is required to be paid on a complaint filed under the Act    it would be possible for persons who have suffered injury due to deficiency in service rendered    by medical practitioners or at hospitals/nursing homes to seek redress. The conditions    prevailing in India cannot, therefore, be compared with those in England and in the United States.

As regards    the criticism    of the    American malpractice litigation by the British judiciary it has been said :

"Discussion of these important issues is sometimes clouded    by an over-simplistic comparison between    England and American "malpractice" litigation. Professor Miller noted in 1986 that malpractice claims were brought in the United States nearly 10 times as often as in England, and that this is due to a complex combination of factors, including cultural differences, judicial attitudes, differences in the legal system and the rules about costs. She points to the deterrent value of malpractice litigation and resent some of the criticisms of the American system expressed by the British judiciary.
Interestingly, in 1989 the number of medical negligence claims and the size of medical malpractice insurance premiums started to fall in New York, California and many other states. It is thought that this is due in part to legislation in a number of states limiting medical malpractice claims, an in part to improved patient care as a result of litigation."[Jackson & Powe] not Professional Liability, 3rd Edn., para 6-25, p. 466] Dealing with the present    state of medical negligence cases in the United Kingdom it has been observed :

"The legal system, then, is faced with the classic problem of doing justice to both parties. The fears of the medical profession must be taken into account while the legitimate claims of the patient cannot be ignored.
Medical negligence apart, in practice, the courts are increasingly reluctant to interfere in clinical matters. What was once perceived as a legal threat to medicine has disappeared a decade later. While the court will accept the absolute right of a patient to refuse treatment, they will, at the same time, refuse to dictate to doctors what treatment they should give. Indeed, the fear could be that, if anything, the pendulum has swung too far in favour of therapeutic immunity. "[p. 16] "It would be a mistake to think of doctors and hospitals as easy targets for the dissatisfied patient. It is still very difficult to raise an action of medical    negligence in Britain; some, such as the Association of the Victims of Medical    Accidents, would say that it is unacceptably difficult. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all but the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not.
It is difficult to single out any one cause for what increase there has been in the volume of medical negligence actions in    the United Kingdom. A common explanation is that there are, quite simply, more medical accidents occurring
- whether this be due to increased pressure on hospital facilities, to falling standards of professional competence or, more probably, to the ever-increasing complexity of therapeutic and diagnostic methods." [p.
191] "A patient who has been injured by an act of medical negligence has suffered in a way which is recognised by the law

- and by the public at large - as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident." [pp. 192-93] [Mason's Law and Medical Ethics, 4th Edn.] We are, therefore, not persuaded to hold that in view of the    consequences indicated by Lord Denning in Whitehouse v. Jorden (supra) medical practitioners should be excluded from the purview of the Act.

On the basis of the above discussion we arrive at the following conclusions:

(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.

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.