Read Judgment: Dr. Vijil & Ors. vs. Ambujakshi .T.P & Anr.
Ernakulam, March 7, 2022: Observing that the medical services would fall within the ambit of Section 2(42) of the Consumer Protection Act, 2019, unless the service is free of charge or is under a contract of personal service, the Kerala High Court (Ernakulam Bench) has dismissed a petition filed by the doctors practicing Modern Medicine in Kannur seeking to quash orders passed by the District & State Consumer Disputes Redressal Commissions after taking cognizance of complaints in respect of medical negligence caused by those doctors.
The Single Judge N. Nagaresh observed that the words “but not limited to” appearing in Section 2(42) of the 2019 Act clarifies the intention of the Parliament to not exclude ‘health sector’ from the ambit of Consumer Protection Act.
The observation came pursuant to a petition filed by Doctors (Dr. Vijil & Others) practicing Modern Medicine in Kannur, seeking to quash orders of the District & State Consumer Disputes Redressal Commissions, as sans jurisdiction and hence illegal. The petitioners also prayed to declare that the Consumer Fora under the Consumer Protection Act, 2019 do not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service, as medical profession and practice do not come within the purview of the term ‘service’ defined u/s 2(42) of the Consumer Protection Act, 2019.
After considering the submissions, Justice Nagaresh found that the question whether medical negligence/ deficiency in medical services would fall within the ambit of ‘service’ came up for consideration before the Apex Court in Indian Medical Association v. V.P. Shantha and others, (1995) 6 SCC 651 , wherein it was held that services rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of ‘service’ as defined u/s 2(1)(o) of the Consumer Protection Act, 1986.
The Act, 1986 was substituted by the Consumer Protection Act, 2019, wherein the term ‘service’ is defined u/s 2(42), which is more descriptive and takes specifically in the banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, added the Single Judge.
Justice Nagaresh further found that the Parliament intended to specifically underline that certain services like Banking, Financing, Insurance, Transport, etc., which are in the nature of public utility services, would come within the purview of ‘services’.
Since the definition is inclusive and not exhaustive, therefore, all services which are made available to potential users would fall u/s 2(42), except those services rendered free of charge or under a contract of personal service, added the Single Judge.
The High Court observed that the District Commission considered the issue of maintainability of the complaint and noted that the words “Medical Service” were not expressly included in the definition of ‘service’ in both the Acts.
Also, the State Commission held that since no conscious change in the definition of “service” was made in the new Act, the contention of the petitioners that Health Sector has been deliberately excluded by the Parliament while enacting the new law, cannot be accepted, added the Court.
Accordingly, the High Court dismissed the petition.