Kerala High Court rules on medical services
The petitioners had contended that medical profession and practice did not come within the purview the Consumer Protection Act, 2019
In a significant move, the Kerala High Court recently held that within the purview of the term ‘service’, medical services fell under the Consumer Protection Act (CPA), 2019.
Justice N. Nagaresh dismissed the plea filed by a group of doctors. The doctors had prayed to declare that under CPA, the consumer fora had no jurisdiction to take cognizance of complaints of medical negligence and deficiency in services.
In its order, the court noted, “The words ‘but not limited to’ appearing in the Act clarifies the intention of the Parliament. The medical services, therefore, would indeed fall within the ambit, unless the service is free of charge or is under a contract of a personal service.”
The primary argument in the petition was that the medical profession and practice did not come within the purview of the term ‘service’ defined under CPA.
The issue arose, after a complaint was filed against the petitioners-doctors in the District Consumer Disputes Redressal Commission, Kannur. It alleged that the complainant was diagnosed with a cataract in her left eye. With no relief provided to her, she was referred to other doctors for treatment.
On being treated by the petitioners-doctors, the complainant lost sight of her eye. Alleging, it was due to medical negligence, she sought a compensation of Rs.32,52,000 before the Commission.
Appearing for the petitioners, senior advocate S. Gopakumaran Nair contended that the draft bill of the new CPA included the health sector among the illustrations of the facilities treated as ‘service’. However, the health sector was removed from the illustrations under Section 2(42). This was because the lawmakers intended to exclude the medical profession/services from the purview of the new Act.
Justice Nagaresh noted that in an earlier case relating to the Indian Medical Association, the apex court had held that the services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment (medical and surgical), would fall within the ambit of ‘service’ as defined under the Consumer Protection Act, 1986.
Therefore, while the 1986 Act was substituted by the 2019 Act, it still had the same meaning and implications. The only difference in the definition clauses was that the 2019 Act was more descriptive. It applied specifically to the banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding/lodging, housing construction, entertainment, amusement or the purveying of news or other information.
The court, thus rejected the contention of the petitioners, stating that external aids like the draft bill could be taken for interpreting a statutory provision only when there was ambiguity in the express provisions of the statute.
It further ruled that the legislative intent of the 2019 Act was to make the ‘services’ as inclusive as possible. “All services, which are made available to the potential users would fall under the 2019 Act, except those that were rendered free of charge or were under a contract of a personal service,” the court said.
While advocates Sooraj T. Elenjickal, Renoy Vincent, Arun Roy, Helen PA and Shahir Showkath Ali represented the petitioners, the respondents were advised by Additional Solicitor General S Manu and the Central Government Counsel V Gireesh Kumar.