CHAPTER-VIII

CONCLUSION AND SUGGESTIONS

8.1 Conclusion

In a market place consumer is supposed to be the king and business is expected to

provide maximum possible satisfaction to consumers. But in reality, consumers are often

exploited. A few firms enjoy monopoly powers in the market place. A large majority of

Indian consumers are ignorant and illiterate and do not know their rights. They are poor

and there is lack of unity among them. Due to all these reasons, consumers are often

deprived of their rights. They are often exploited through misleading advertisements,

poor quality goods and services, fractional weights and measures, overcharging, etc.

However, the recent economic development has given the consumers tremendous

increase in purchasing power while at the same time prompting changes in the

professional market, have significantly weakened their bargaining position. Especially

the services like medical, legal, architect etc. are now being marketed in such a manner

that it is more difficult for consumer to judge their quality adequately. This problem bears

particularly heavily on the poor. It is now a matter of no contention that consumer

protection is not simply a middle class issue but a matter of vital importance for the less

well-off members of society.

Consumer protection entails protecting the rights and interests of the consumer in

matters of availability, quality, quantity and price of goods and services. It in fact

promotes the concept of value for money and enhances the trust between the customer

and the producer or providers of services. The part played by the professional’s vis-à-vis

the consumer is hardly flattering. In terms of consumer laws, it has not shown the

slightest indication to come out of the shroud to display the desire to live up to the
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expectations of society and to reach the height of Poundian Model. In so far as the barbed

remarks by Bernard Shaw, that “all professions are conspiracies against laity”, are laden

with many a home truth, “all professional monopoly deserves to be demonetized. For, the

quid pro quo for professional monopoly need to be a pro bono publico commitment.

In India, the consumer movement found a clear conception during the freedom

movement of the 40’s when Gandhi established the lead. Father of the nation, Mahatma

Gandhi, has been considered as the greatest consumer advocate the world had ever seen.

His various views the consumer interests were even applauded by Ralph Nader, who

himself has been considered the greatest consumer activist of USA in recent times. In

India, laws have been used to protect consumers for centuries. These laws have drawn on

a variety of legal forms, including criminal and civil laws to achieve their objectives. In

addition to those laws that specify consumer protection as their primary concern,

numerous other provisions have the effect of protecting the consumer, for example by

streamlining the prosecution of fraud, protecting property or facilitating litigation. As a

result, the boundaries of consumer protection laws with reference to services are not

easily drawn. This area of consumer interest which deserves top priority among other

things has been sidelined by the authorities concerned. Thus, it is high time to have

introspection in this regard.

The extension of legal protection is inevitable to safeguard the consumer interests

against exploitation from the professionals. If we take the Indian society, where most of

the consumers are illiterate and consumer awareness is at the lowest ebb when one

approaches a professional for assistance. The aura, the mystique and the mystery that go

with a profession makes it all the more difficult for the consumer-client to ascertain for
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himself whether he received the right advice or not. This is especially so in the case of the

legal and medical professions. In fact it is a reality that when consumer approaches the

professional, he expects value for money, i.e., right quality of services it may be medical,

legal or architectural. But there are instances where a consumer is harassed, cheated or

exploited in a various ways.

Indeed, the need for consumer protection is recognized by law makers in India

since ancient times. It was very well realized that a consumer is prone to exploitation on

the part of providers of goods and services. Therefore, the ancient Indian law codes

regulated not only social conditions but also the economic life of people by establishing

human values and code trade practices to protect the interest of buyers. The ancient law

givers established trade restrictions in order to protect the interest of buyers. In the

medieval period, consumer protection continued to be of prime concern of the rulers.

During this period, Mughals ruled India. Though they were primarily concerned with

expansion of their empire, there were strict controls in the market place, there was

mechanism for price-enforcement in the market and shop keepers were punished for

under weighing their goods. In the modern period, Britishers introduced a single unified

law in whole India for consumer protection. The British institutions and the rules were

combined with the separate rules like to Dharma and local customs and personal laws for

different religions. Some of the laws which were passed during the British regime

concerning the consumer’s interests are: the Drugs and Cosmetic Act, 1940, the Indian

Penal Code, 1860, the Usurious Loans Act of 1918, the Sales of Goods Act, 1930 and

Agriculture Procedure (Grading and Marketing) Act, 1937. These laws provided specific

legal protection to the consumers.

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After the independence, with the adoption of the Constitution the aspirations of

the people of India found an explicit expression in the preamble, the fundamental rights

and directive principles of state policy. A further amendment of the Preamble ordained

ushering in of “socialism”, which aims to provide decent standard of living to all citizens.

Some of the constitutional provisions lay specific duties on such undertakings, being the

instrumentalities of the state. It is now well established that under Art.14 of the

Constitution no state monopoly could be arbitrary in its dealings with the consumer. The

right to freedom of speech and expression does not include right to advertisement which

misleads the consumer. Even right to freedom of trade, profession or business is also

subject to consumer interest. Article 21 which guarantees right to life and thus denial of

an essential service by the state amount to violation of this right. Several directive

principles of state policy have been incorporated into the Constitution to provide

guidance to the state regarding economic policies to be followed by it for the upliftment

of the national economy and providing economic justice to individuals means consumers

also.

In India legislations for the benefit of the consumer have been sporadic and as a

part of social welfare legislation and not until the end of sixties has any serious attempt

been made to identify the interests of the consumer class. Apart from some peripheral

amendments made to existing laws, the new measures adopted include the following: the

Drugs (Control) Act,1950, the Prevention of Food Adulteration Act, 1954, which has

been substituted by the Food Safety and Standards Act, 2006, the Drugs and Magic

Remedies (Objectionable Advertisement) Act, 1954, the Essential Commodities Act,

1954, the Trade and Merchandise Mark Act, 1958, the Monopolistic and Restrictive
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Trade Practices Act,1969, the Standards of Weights and Measures Act, 1976, the

Prevention of Black Marketing and Maintenance of Essential Supplies Act, 1980 and the

Bureau of Indian Standards Act,1986. All these Acts protected the consumer interest in

different ways and at the end, majority of the general public do not derive the effective

benefits of these legislations. By understanding the thrust of consumers, the Government

of India enacted the Consumer Protection Act, in 1986 which protects and provides

effective, people oriented, broad based and efficient remedy to consumer against

defective goods and deficiency in services.

Consumers are now participants in a global market, and are at the mercy of the

market forces. Globalization is gaining strength all around us and we need to reinforce

and strengthen our system to meet its challenges. The consumer protection has attained

enormous international dimensions due to increase in international trade and commerce.

The production, distribution and promotion of goods and services by multinational

companies have raised various issues which call for inter- governmental co-operation.

This increasing recognition of international dimensions of consumer protection is

reflected in the work of a number of international organizations. Especially the IOCU

(International Organization of Consumer Union) which is constituted in 1960, deals with

inter-governmental organizations and national governments and has contributed

substantially by extending consumer protection beyond the concern of private consumer,

to include the availability, quality and safety of goods and services to the general public.

The Inter-governmental Working Groups on the code of conduct of the Commission on

Transnational Corporations, in its 4th session on March 1978 reached certain formulations

to evolve equitable principles and rules for the protection of consumers and also to
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restrict business practices having adverse effect on consumers, efforts are continuing for

framing model laws in order to help developing countries to devise appropriate

legislations. The role of the OECD (Organization for Economic Co-operation and

Development) is also tremendous, which constituted Committee on Consumer Policy. Its

report highlighted the problems relating to consumer credit and the principles for

providing more consumer information and protection.

At the regional level, the Council of Europe, European Union (formerly the

European Economic Community) and the Commission of the European Community have

well explored the effects of economic integration on consumers and developed interest in

consumer information and coordination of consumer policies in member states. In fact,

the capacity of consumer policy to provide insights into some of the fundamental tensions

that beset the evolution of the European Union is today even more enticing. One can find

the European Union’s efforts for protecting the consumer interests in the Treaty of Rome

1957, the Paris Summit of 1972, the European Act, 1986, the Treaty on European Union

1992 etc. The efforts of IOCU was drawn the attention of the Economic and Social

Council towards problems of consumer protection, due to this General Assembly of the

United Nation, adopted the Guidelines for the Protection of Consumers on 1985.

Adoption of these Guidelines anonymously is one of the greatest achievements of the

international movement for consumer protection. These Guidelines include adoption of

measures for physical safety, promotion and protection of consumer economic rights,

distribution facilities for essential consumer goods and services, effective redressed

machinery, developing education and the formation of programmes of consumer interest

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etc. India has acted upon on most of these Guidelines which of special significance for

developing countries.

Similarly, the World Medical Association with the sole purpose to serve humanity

set the International Medical Standards and prescribed the important duties of the

physicians in general to protect the interest of consumers of medical services. At the

same time, the International Code Council developed the International Building Code is a

Model Building Code, which are basic guidelines to the design professionals to avoid the

risk while making initial decisions on constructions. Even the local government can

choose to adopt a Model Building Code as their own.

The consumer protection in advanced countries like USA and UK is not a recent

phenomenon. In fact, consumer awareness in America started at the end of the 19th

century. In 1890, the United States enacted the first anti-trust legislation namely the

Sherman Anti-trust Act. The Act declared every contract, combination in the form of

trust or otherwise or conspiracy, in restraint of trade or commerce, to be illegal. But this

Act could not respond to the wide-spread pressures for increased protection of

consumers. To meet this demand, various legislations have been enacted. However, the

modern consumer protection movement began in 1960s with reference to a Consumer

Bill of Rights of by President Kennedy, the growth of the so called ‘Great Society’

program of the Johnson Administration, and the efforts of Ralf Nader and other consumer

advocates to highlight the existence of unsafe products and the need for greater

government regulation. The result is that American consumers are protected from unsafe

products, fraud, deceptive advertising and unfair business practices through a mixture of

national, state and local governmental laws and the existence of many private rights of
 318

actions. These public and private rights both protect consumers and, at a formal level,

equip them with the knowledge they need to protect themselves. The consumer is less

informed about the nature and quality of the services, and often relies on the expertise of

the professional in order to assess (agency function) and implement the appropriate

strategy (service function). Some protection for the consumer of professional service is

necessary to guarantee the quality and to mitigate inefficiencies. In USA the professions

like the medical, legal, architect and engineers appear to be highly regulated by their own

professional bodies for e.g. American Medical Association, American Bar Association

and American Institute of Architects by prescribing code of practice. Similarly, civil and

criminal liability can be imposed against professional for negligence but it depends upon

the nature of negligence.

In England, the consumer movement was started after the Second World War

(1939-45). There are number of legislations to protect the interest of consumers in UK.

The most significant of the consumer protection statutes are the Fair Trading Act, 1973,

the Competition Act, 1980 and the Consumer Protection Act, 1987. The objectives of

these Acts were to give the consumer a fair deal wherever possible to stop unfair trading

practice, to control anti-competitive practices against and to protect the consumer against

defective goods to provide consumer safety.

In England, the regulatory bodies of their respective profession like medical, legal

and architect, exercise a regulatory function i.e., imposing requirements, restrictions and

conditions, setting standards in relation to any professional work, and securing

compliance or enforcement to protect the interest of consumers of services and to

maintain their profession in high esteem. For e.g. General Medical Council for Medical,
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General Council of Bar for Barristers, Law Society for Solicitors, and Architects

Registration Board for Architects. Professionals provides Services to the consumers,

which may be contractual or non-contractual, if professionals makes a contract with the

clients for particular services and if there is a breach of the terms of the contract, then the

professionals are held liable for damages as per the general principles of English contract

law. Nonetheless, the English tort law also provides remedies for abused rights and

liabilities outside contractual relationships. Provisions and application of tort law is not

the same in every jurisdiction. The English legal system is very different which provide

very distinct provision in their body of laws. Even professionals are criminally liable for

their negligence, if it is gross which leads to severe injury or death to their clients.

In India, the doctors are considered to be the visible God as they give life to the

persons who are suffering with various diseases, injuries, defects etc. Greater sanctity is

attached to this profession. But now a days, it has become commercialized; many of them

are not adhering to the norms prescribed therefor. Indian Medical Council has prescribed

a code of medical ethics, which are laid out as general principles of medical practice and

duties which the practitioner owes to patients, to the profession at large, to each other and

to the public. The relationship between the doctor and the patient is of trust and

confidence. A patient who approaches a doctor with an ailment will presume that he is

the right and capable person to cure his defect. With that confidence only they approach

him. And at the same time, there is also a duty on the part of the doctor to perform such

obligation with proper care. So far as persons engaged in medical profession are

concerned, it may be stated that every person who enters in the profession undertakes to

bring in the exercise of it a reasonable of care and skill. It is true that a doctor or a
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surgeon does not undertake that he will positively cure the patient. Nor does he undertake

to use the highest degree of skill as there may be persons who are more skilled and

learned than him. But he definitely undertakes to use a fair, reasonable and competent

degree of skill. If he breaches, he will be liable for negligence to the patient.

The liability of doctors for negligence may arise under civil or criminal law. The

tort law requires that there should be definite duty of the medical professional which is

fixed by law, there should be a breach of this legal duty and as a direct consequence of

this breach, patient must suffer some damage. If the plaintiff has proved the above test,

then the patient can claim damages. If negligence is gross, it becomes a criminal offence,

and the doctors will be liable for imprisoned and fine under criminal law. Though, the

civil and criminal law offers remedies to aggrieved patients but these are cumbersome.

The patients have to pay court fees. The trial was long on account of the elaborate rules

of procedure and strict principles of evidence applicable before those courts. This

involved delay and heavy expenditure, which deterred the patient to exhaust the

remedies. For the avoidance of this taboo, the government of India brought CPA, 1986

with a view to provide the consumer an easy, inexpensive and speedy remedy.

At the initial stage after the enactment of the CPA, 1986 there was lot of

confusion in the Judiciary as well as the medical fraternity regarding the applicability of

the Act to the medical profession. The various High Courts reached different conclusions.

However, in the case of Indian Medical Association v. V.P.Shantha in the year 1995, the

Supreme Court judgment proved to be a monumental one. It changed the way one viewed

the medical profession from a totally legal point of view. The judgment brought the

medical profession within the ambit of the CPA, 1986. The patients could now sue the
 321

doctors for injuries sustained by them, in consumer courts. The doctors are under a

misconceived notion that the Act has imposed a very onerous obligation on them to cure

every patient, who approaches them. There is no truth in this assertion that it is only in a

fraction of medical negligence cases, where the patients have been successful to prove

negligence. The consumer fora have taken into consideration the interest of the doctors

also by directing the patients to pay cost in case of frivolous allegations. The doctors need

to take the Act, in its right spirit. Moreover, doctors by themselves do not belong to a

particular class. They are also consumers of medical services. The doors of consumer

fora are also open to them when they become the victims of deficient medical services.

Like medical profession, the legal profession is also a noble profession, the most

and attractive of the peaceful professions, with responsibilities, both inside and outside it,

which no person carrying on any other profession has to shoulder. It is a great controlling

and unifying institution which places upon each his obligations. No other profession

touches human life at so many points than law. It has always been held in high esteem

and its members have played an enviable role in public life. However, it is greatly felt

that the nobility, greatness and honour of the legal profession are declining fast in recent

days and some of legal practitioners are converting this profession in to a trade or

business. As Krishna Iyer J. in the Bar Council of Maharashtra v. M.V.Dhabolker1

rightly said, “the legal profession is not trade, not merchandise but a monopoly adhering

to high traditions.” This is closely aligned with the fact that the very concept of

professional misconduct for lawyers has a moralistic element which necessarily involves

disgrace or dishonour to the legal community and which impedes the administration of

Justice and confidence of litigants”.

1
(AIR (1976) SC242 (1976)2 SCC 291)
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Lawyers practice a learned profession, as a part of their profession they render

services to the clients with respect to both litigation and non-litigation matters. The

advocate’s profession is different from other professions, here advocates cannot

guarantee the result and it is for the courts to assess and weigh the material/evidence in

the light of the laws applicable to the case in the course of doing justice. However, there

are situations in which an advocate could be held responsible for the loss caused to his

client for deficiency in service when loss could be attributable solely on the negligence of

advocate. In other words, right from accepting the brief to the conclusion of the case, an

advocate is expected to exercise due care and diligence in the conduct of the case that is

expected from an advocate. It is not enough to have acted bonafide and to the best of skill

and judgment, as he has a duty to use such care as would be used by others in the same

profession. Departing from this standard may well invite an action for negligence. An

option is available to the client either to invoke the jurisdiction of civil courts under

contract law, tort law or the Consumer Fora under the CPA, 1986.

Like other professionals engaged in a learned profession, the relationship between a

lawyer and client is contractual in nature. The contract entered into by the professional

and his client usually stipulates instructions as to the service that is to be rendered and

consideration for it. The extent of a lawyer’s obligation towards his client for breach of

contract depends on the terms of the contract, express or implied. For instance, if a

solicitor is instructed to effect the grant of an option, there are implied terms that he will

draw up the option agreement and effect registration. An infraction of any such term can

amount to a violation of the contract, thus making the advocates liable to the consumer.
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The tortuous liability of a lawyer for deficiency in service arises independent of

contract. A consumer of services may have a case for making the professional liable

under the law of torts, if he can establish negligence on the part of the legal practitioner.

The tort of negligence stands established when the following conditions are satisfied: (a)

The professional owes a duty of care to the consumer, (b) The professional has acted or

spoken in a manner that breaches that duty of care, (c) The consumer has suffered

relevant damage as a consequence of the breach. However, whether a lawyer attracts

liability under the CPA, 1986 for any deficiency in service rendered by him? is a present

pending issue before the Supreme Court. In D.K.Gandhi v. M.Mathias,2 the National

Commission made it clear that all professional including lawyers should come within the

purview of the Act. The same case reached to the Supreme Court i.e., Bar of Indian

Lawyers v. D.K.Gandhi,3 where petitioners are claiming immunity from liability under

CPA, 1986. At present Supreme Court granted stay against orders of the National

Commission. The reasoning adopted by the Supreme Court in Shantha Case, holding

doctors liable for deficiency in service under CPA, 1986 is sound and rational, and there

is no reason why the same reasoning cannot be adopted in the case of advocate. The

blanket of immunity to the advocates for their professional negligence will not only affect

the client’s confidence in them but also society as a whole. Bringing advocates under

CPA, 1986 will do more good and make them more responsible to their clients, courts

and society at large.

In case of architects and engineers, the primary focus of an Architect remains on

the aesthetic appearance of a building. Properly implemented concepts of architecture

2
Order dated August 06, 2007 in RP No. 1392/2006
3
(MANU/SC/0950/2009), See @ http://www.nerve.in/news253500-217160
 324

ensure that a building is not just strong, but that it looks good and takes care of the

comfort of the inhabitants as well. Architects and engineers also practice a learned

profession. The responsibility of architect and engineer often overlap. Both professions

are integral to the design and construction of structures, such as building and bridges.

Architect design the space to meet client needs, as well as the aesthetic appearance the

inside and exterior of the building. Engineer’s main responsibility is to ensure the design

is safe and meets all appropriate building codes. Engineers concern themselves with

making buildings safe and functional by selecting structural materials, determining the

structural members of the design, and specify the electrical, heating, ventilation, air

conditioning and plumbing systems. One way that engineers and architects communicate

their ideas to each another is through blueprints, or technical drawings.

In rendition of services, they are bound to comply with certain requirements of

law. The sale of professional services carries with it the implied warranty that the service

will be performed in a skilful and workman like manner. This implied warranty of good

and workman like performance applies to a suit for architectural malpractice. A contract

for professional services gives rise to a duty by the professional to exercise the degree of

care, skill and competence that reasonably competent members of the profession would

exercise under similar circumstances.

A builder of defective premises may be liable in negligence to persons who

thereby suffer injury. In Rimmer v. Liverpool City Council,4 court held that “a landlord

who also designed or built the premises, owed in his capacity as designer or builder, a

duty of care to all persons who might reasonably be expected to be affected by the design

of construction of the premises, the duty being to take reasonable care to see that such
4
(1984)1 AII ER 930(CA)
 325

persons would not suffer injury as a result of faults in the design or construction of the

premises.” The obligations and liabilities that may arise for architect and engineers

depend on their precise role during a construction project. Some of the claims more

typically made against architects and engineers involve negligence in respect of design

errors, construction defects, misrepresentation, inaccurate advice, violations of

confidentiality, breach of statutory or contract provisions, inadequate or insufficient

knowledge, lack of appropriate scoping of human or material resources, as well as

breaches for other obligations inherent to each stage of the project.

In India, the Council of Architecture being a statutory body regulates the

architectural education and profession throughout the country. The Council has

prescribed guidelines on “architects professional liability” to make aware of the architects

and the owners and occupiers of the buildings in what manner and under which

circumstances an architect should be held responsible for the negligent act/deficient

services and at the same time, it highlights’ the clients/occupiers duties and

responsibilities to be undertaken by them to preserve the longevity of the building. And

on the complaint of client against architect for guilty of professional misconduct, the

Council of Architecture, after holding an inquiry as per rules, may by order reprimand the

said architect or suspend him from practice or remove his name from register or pass

such order as it thinks fit to protect sanctity of profession and to safeguard the interest of

consumers. Similarly, whenever there is deficiency in service the aggrieved consumer

can enforce their remedies through civil courts under contract law or law of torts or

through consumer fora under CPA, 1986

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The primary basis of the duties of the building professionals in a particular case is

the contract pursuant to which each is engaged. Whether oral or written, the contract

needs to be carefully scrutinised in a professional negligence claim in order to determine

the nature and extent of the engagement undertaken. Circumstances in which architect

and engineers may be relieved of contractual responsibility depend on when their

obligations are considered as best endeavours or result obligation. A breach of contract,

as the cornerstone of contractual liability, will depend also on the type of obligation

assumed by the architect and engineer. The burden of proof varies according to the type

of obligation undertaken by the professionals and on whether their liability arises under

contract. When a building/construction or engineering project has not been completed by

the handover date, there may be a breach of contract per se. In this situation, the claimant

carries the burden of proof of the existence of a contract, the obligations breached, the

extent of damage, and evidence that the result has not been obtained, and can claim

damages for loss occurred. Sometimes an architect and engineer will also be held liable

to third parties provided the latter were within his reasonable contemplation. For e.g.

where, the nature of work may compel the architect to employ a specialist engineer,

though no contractual relation exist between such engineer and the employer, former will

be held liable to the latter for any breach of duty.

Like any other professional man, the liability of an architect and engineer is also

concurrent. The liability of an architect for breach of a duty to take care is independent of

a duty under a contract. Accordingly an architect invites liability if he fails to exercise

reasonable care and skill which is expected of an ordinarily competent and skilled

architect. It may be for improper examination of site, errors in preparation of plans and
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specifications, failing to provide a proper estimate of the cost, failing to take reasonable

steps in selecting contractors etc. In these circumstances clients can claim damages for

the loss. However, the liability of architect and engineers is not absolute. Architect and

engineers can avoid their liability under various circumstances. Even architect and

engineers can exclude or limit their liability for negligence by inserting exclusion clauses.

But such exclusion is subject to strict legal scrutiny.

The remedies in civil courts are expensive and time consuming. Thus, instead of

going to civil courts, consumers of architect and engineering services are advised to

approach consumer fora for enforcing remedies which is open to all the consumers of

professional services. The Supreme Court in the case of Indian Medical Association v.

V.P.Shantha5 clearly held that “all professionals –advocates, architects, chartered

accountants, doctors, engineers, interior decorators, and others- are covered under the

CPA, 1986. Thus, architect and engineers services falls under the purview of CPA, 1986

and consumer of these services can claim remedies for deficiency in service under CPA,

provided he should be a consumer according to Sec.2(1)(d) of CPA, 1986.

In order to satisfy the various needs demanded from the profession of medical,

legal, architect and other, the quality of service they provide must command the

confidence and respect of the public. This can only be achieved if professionals establish

and maintain a reputation for both the integrity and high standards of professional skill

and care. No set of rules can foresee every possible situation, but the ethical principles set

out in their respective codes are intended to provide a framework within which the

professionals may, with courage and dignity, provide the high quality of professional

services that a complex and ever changing society demands. Courts have, while
5
(995) 3 CTJ 984 (SC)
 328

interpreting the law, mostly agreed that the law does not usually imply a warranty that he

(the professional man ) will achieve the desired result, but that he will use ‘reasonable

care and skill’ and the evaluation of reasonableness depends upon human ingenuity and

can vary with circumstances and evaluating individuals. In Charan Singh v. Healing

Touch Hospital and others6, the Supreme Court also observed that “the Consumer

Forums while quantifying damages are required to make an attempt to serve the ends of

justice so that compensation is awarded, in an established case, which not only serve the

purpose of recompensing the individual, but which also at the same time, aims to bring

about a qualitative change in the attitude of the service provider”. The best example the

Supreme Court has given in Anuradha Saha case,7 where three physicians were held

responsible for the death of a woman in a Kolkata hospital 15 years ago and awarded the

highest compensation ever ordered in a case of medical negligence in India. The court

ordered a compensation of Rs.5.96 crore, which with interest crosses Rs.11 crore. The

Supreme Court has sent out a very strong message to the medical fraternity in India. In

the Indian context, this verdict will go a long way in telling the medical community that

they can be questioned and held accountable as well. Ultimately, it is an established fact

that the CPA, 1986 was necessitated by the increasing exploitative situations faced by a

consumer. The Act has been a landmark socio-economic legislation dealing with specific

class namely consumer, catering to their protection and compensating the victimized

consumer.

At last but not least to conclude the discussion of the present study in a broader

way, it is submitted that CPA, 1986 which is a benevolent, beneficial and indeed a

6
(2000)7SCC668)
7
Dr. Balram Prasad v. Dr. Kunal Saha & Ors. [Civil Appeal No.2867 of 2012]
 329

consumer friendly legislation, it can definitely ensure accountability in almost every

profession. What is required is the necessary awareness amongst consumers about their

rights, above all their willingness and courage to assert their rights as well as the

determination and confidence to expose the negligent and insensitive professionals. In

this study all the hypotheses have been proved.

In view of above conclusions the following few suggestions are made for

strengthening the consumer law so that consumer of services could get efficient services

and protection.

8.2 Suggestions
• Suggestions Related to the Professional Services
1) The exclusion of ‘free service’ and ‘contract of personal service’ under Sec.2(1)(o)

of CPA, 1986, which are immune from any liability are also required to be brought

under the Act to broaden the scope of the term ‘services’.

2) The compensation payable for deficiency in service must be clearly specified in the

CPA, 1986 by taking into consideration the gravity of the offence and its ill effects

on the consumer and the appropriate criteria may be specified.

3) The private practice by doctors of the government hospitals should be strictly

regulated or completely banned immediately, as there Doctors show more interest

in the private practice and also indulge in corrupt practices.

4) With increasing cost of healthcare claim for medical negligence, it should be made

mandatory for the doctors and hospital owners to go for Indemnity Insurance to

cover their liability.

5) A separate chapter dealing with cases of negligence by professional service

providers should be incorporated in CPA, 1986. A provision should be made for

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laying down the procedure for determining the negligence, before any action is

initiated.

6) Doctors who refuse to take up medico–legal cases must be prima facie held to be

negligent and should be made liable to patient.

7) The Act should be amended to provide an inclusive definition of negligence of

advocates. What conduct of advocates amount to negligence should be clearly

spelled out.

8) As regards defects in the construction of buildings, the engineers and architects

should be made strictly liable for any loss suffered by the owners and regulatory

bodies relating to the engineers should be set up.

• General Suggestions

9) Consumer information, without which it is almost impossible for the consumer to

exercise his real freedom of choice. Information is required primarily in three areas:

a) the quality and safety of services available from the professionals b) the price of

services offered and c) the rights that consumers can exercise in their dealings with

professionals.

10) Consumer education must be vigorously permeated in urban as well as rural areas.

Consumer education is significant to acquire knowledge and skills needed to make

confident choices about goods and services, and at the same time being aware of

basic consumer rights and responsibilities and how to act on them. The right to

acquire the knowledge and skills necessary to be an informed consumer.

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11) General public must be trained through educative schemes and programmes to form

habit of taking receipts from the service providers for services availed of, in order to

be well equipped for relief under CPA, 1986.

12) Consumer must be involved, through consultation and representation, in decision

making, not only by public authorities but actually within companies which affect

their interests. Participation by consumers in the law making process is an essential

factor in the development of specific consumer law.

13) State should also endeavor to establish Consumer Redressal Units at Tehsil and

village level so as to provide immediate speedy and inexpensive remedy to poor

masses residing in villages.

14) Government should make efforts to constitute a genuine network of ‘Legal Advice

Services’ or ‘Consumer Care Centre’ which must be readily accessible and

competent in consumer affairs for all the time.

15) There is need for special studies and frequent audit of professional negligence cases

to find out the new and emerging causes of professional negligence in future.